TAROOPNA & TAROOPNA

FAMILY COURT OF AUSTRALIA

TAROOPNA & TAROOPNA

[2017] FamCA 377

FAMILY LAW – Parenting – Interim parenting – Where discrete issue as to the child’s time with the father – Where parties agree as to equal shared parental responsibility – Where parties agree that the child live primarily with the mother – Consideration of the child’s best interests.

FAMILY LAW – Property adjustment – Interim property issues – Where wife seeks order as to ongoing mortgage payments – Where wife has had use and occupation of family home for nearly five years since separation – Where husband has paid mortgage payments during that period until recently – Where wife does not seek home by way of property settlement – Where wife has no capacity to acquire home – Where wife has alternate accommodation available with her parents – Where husband asserts lack of capacity to maintain ongoing payments – Where appropriate to order sale and modest release of funds to the wife.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 114

Goode and Goode [2006] FamCA 1346
Harris & Harris (1993) FLC 92-378
Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
SS & AH[2010] FamCAFC 13
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Taroopna

RESPONDENT:

Mr Taroopna

FILE NUMBER:

PAC

978

2015

DATE DELIVERED:

19 May 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

A B Mezzanotte Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Moisson Lawyers

Orders

Interim Parenting
Pending further order:

That the father and mother have equal shared parental responsibility for the child B born … 2012.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)during periods equivalent to NSW school terms in a two-week cycle commencing in the first week after the resumption of school term and then in each alternate week thereafter from after school or preschool or 4.00 pm if a non-school day on Thursday to 6.00 pm Sunday and commencing in the second week after the resumption of school term and then in each alternate week thereafter from after-school or preschool from 4.00 pm if a non-school day on Thursday to before school or preschool or if a non-school day 9.00 am Friday;
(b)during periods equivalent to mid-year school holidays for one half of such school holiday periods as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement with the husband in the first half of such holidays in even numbered years and in the second half of such holidays in odd numbered years;
(c)on the Father’s Day weekend if not otherwise spending time with the father from after school or preschool from 4.00 pm if a non-school day on Friday to 6.00 pm Sunday provided always that the father’s time with the child is suspended on the Mother’s Day weekend from after school or preschool from 4.00 pm if a non-school day on Friday.
That the parties have leave to apply as to further or other orders if necessary as to the 2017/2018 Christmas period.

Interim Property

That the husband and wife do all things necessary and sign all necessary documents so as to forthwith sell by public auction the former matrimonial home at C Street, Suburb A NSW being Lot … in Deposited Plan … and upon sale disburse the proceeds of such sale as follows:
(a)in payment of agents commission on sale and any advertising and auction expenses;
(b)in payment of any necessary contract adjustments;
(c)in discharge of the mortgage encumbrance presently secured against the said property;
(d)in payment to the wife or as she may otherwise direct in writing the sum of $50,000.00;
(e)in payment of the balance then remaining to a controlled monies interest-bearing account in the name of the solicitors for each of the parties in trust for the husband and wife pending further order.
That for the purposes of and incidental to the sale of the Suburb A property the parties shall do all necessary things and sign all necessary documents so as to:
(a)agree upon the appointment of an independent solicitor or conveyancer to have carriage of the sale and sign all necessary documents confirming such appointment and in default of agreement within 14 days from the date of these orders to thereafter forthwith request the President of the Law Society of New South Wales to appoint a solicitor to have the carriage of the sale;
(b)to agree upon the appointment of a selling agent to have the conduct of the sale and to jointly sign all necessary documents confirming such appointment and in default of agreement within 14 days from the date of these orders to thereafter forthwith request the President of the Real Estate Institute of New South Wales to nominate a selling agent for the purposes of the sale;
(c)to agree as to a reserve price to be placed on the property for the purposes of the sale by public auction and in default of agreement as to such reserve price in a timely manner prior to the said auction to accept the recommendation of the selling agent as to the reserve price to be placed on the property;
(d)that in default of the property reaching the reserve price on sale by public auction to accept any recommendation of the selling agent as to the acceptance or otherwise of an offer to purchase at a price less than the reserve price;
(e)to sign all necessary documents so as to facilitate an orderly sale of the said property by public auction or otherwise and distribution of the proceeds of sale in accordance with these orders.
That the wife shall vacate the property at Suburb A not less than seven days before completion of the sale of the property and leave that property in good order and condition having regard to the order and condition of the property at the time of its inspection for sale by the selling agent.
Liberty to apply as to implementation or enforcement of the above orders as to sale.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taroopna & Taroopna has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 978 of 2015

Ms Taroopna

Applicant

And

Mr Taroopna

Respondent

REASONS FOR JUDGMENT

The present applications for determination relate to issues of interim parenting and interim property adjustment.
Proceedings were commenced by the applicant wife in March 2015 when she filed an Initiating Application seeking final orders as to property settlement. The respondent husband filed a Response to that application seeking orders as to property settlement and parenting in relation to the only child of the parties’ marriage, the child B born in 2012 (‘the child’).
On 21 June 2016 the husband filed an Application in a Case seeking interim parenting orders in relation to the child now aged five.
On 18 November 2016 interim parenting orders were made by consent pending expected hearing of interim parenting issues on 14 December 2016. Those consent orders provided in summary:
a)that the husband and wife have equal shared parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father each fortnight from 9.15 am Saturday until 6.30 pm Sunday and in the alternate week from 4.30 pm Friday to 6.30 pm Saturday and each Tuesday from 3.00 pm until 7.00pm;
d)the father be at liberty to have telephone communication with the child between 6.00 pm and 7.00 pm each Monday, Wednesday and Friday;
e)changeovers to be facilitated, if they were not to occur at childcare, with the father collecting the child from the mother’s residence and the mother at the end of the child’s time with the father collecting the child from the father’s residence.
Interim parenting proceedings were before the Court on 14 December 2016 on which date a discrete order was made facilitating the child having time with the father from 4.30 pm 24 December 2016 to 3.00 pm 25 December 2016 and interim orders made on 18 November 2016 were continued until 1 March 2017 on which date interim parenting issues were to be determined.
However, on 13 December 2016 the wife filed an Application in a Case seeking interim orders relating to property following mortgage payments on the former matrimonial home falling into arrears.
On 30 January 2017 the husband filed a Response to the wife’s Application in a Case seeking interim orders providing for the sale of the former matrimonial home at Suburb A and that each party receive $50,000.00 from the proceeds of the sale with the balance remaining in a controlled monies account pending final determination. In the alternative, the husband sought an order that the wife pay mortgage payments relating to the home or in the further alternative that the parties pay the mortgage payments equally. Otherwise, in his Response the husband sought interim parenting orders that in summary provided for:
a)that the husband and wife have equal shared parental responsibility for the child;
b)that the child live with the wife;
c)that the child spend time with the father during school term in a week about shared care arrangement or in the alternative in a graduated arrangement commencing with the father spending time with the child on alternate weekends and ultimately resulting in the child residing in a week about shared care arrangement by the resumption of school in January 2018;
d)otherwise the husband sought specific orders as to half school holidays, the Christmas festive period, the Easter festive period, Mother’s day, Father’s day, the child’s birthday and the husband’s birthday and other various specific issues orders.
Subsequently all interim issues were listed for hearing on 30 March 2017.

Context

The wife is presently 38 years of age. The husband is also aged 38.
The parties married in 2007 and separated on 29 September 2012. They were divorced in March 2014.
The child B is the only child of their relationship and at the time of separation the child was barely four months of age.
Since separation the child has continued to live with the wife in the former matrimonial home at Suburb A.
The husband pays child support of $767.00 per month for the child.
The husband has re-partnered and he and his new wife are expecting the birth of their first child in July 2016.

Documents Relied on

The wife relied upon the following documents:
a)her Application in a Case filed 13 December 2016 seeking interim property orders;
b)her affidavit filed 13 December 2016;
c)her further affidavit filed 13 December 2016;
d)her further affidavit filed 29 March 2017;
e)her financial statement filed 8 March 2015.
The husband relied upon the following documents:
a)his Response to the wife’s Application in a Case filed 30 January 2017 seeking interim property and parenting orders;
b)his affidavit filed 30 January 2017;
c)his financial statement filed 12 June 2015.

Orders sought at interim hearing

The wife

As to parenting the wife sought orders that the child’s time with the father be extended in week one to be from 4.30 pm Friday to 6.30 pm Sunday and from 1 June 2017 to conclude at 9.00 am Monday or before preschool Monday and in week two from 4.30 pm or from after preschool Wednesday to 9.00 am Thursday and for one half of school holidays.
As to interim property the wife sought an order that the husband’s application be dismissed and that he be obliged to pay mortgage instalments relating to the former matrimonial home pending further order.

The husband

As to parenting initially the husband sought orders that provided for a shared care arrangement during school term with changeovers each Friday or in the alternative a graduated regime resulting in the same arrangement beginning at the commencement of the first school term in 2018. Otherwise, the husband sought half school holidays, specific orders in relation to other special occasions being the Christmas festive period, the Easter festive period, the Mother’s Day weekend, the Father’s Day weekend the father’s birthday and the child’s birthday.
The husband otherwise sought orders relating to the child’s passport, notification of any medical circumstance, non-denigration, telephone and other communication, changeovers, interstate or overseas travel and compensatory time.
By way of final submissions made on his behalf, the husband sought interim orders that provided for the child to spend five nights per fortnight with him being two nights in week one and three nights in week two of each fortnightly cycle during school term. It is noted that the wife’s proposal represented three nights in week one and one night in week two.
As to interim property the husband sought an order for sale of the matrimonial home, the payment of $50,000.00 to each of the parties with the balance of the proceeds of the sale to be retained in a controlled monies account pending further order or in the first alternative that the wife be required to pay mortgage payments in relation to the home as they fall due and payable and in the second alternative that the husband and wife pay those mortgage payments equally.

The child responsive program memorandum: October 2016.

The child responsive program memorandum (Exh “B”) provides further background.
At the time of the interviews the child was attending child care three days per week and was to commence schooling in 2017. The wife proposed to the family consultant orders for shared parental responsibility and that the child spend increasing time with the husband resulting in the child spending five nights per fortnight with him. The husband proposed shared parental responsibility and that the child live in an equal time arrangement.
The parties initially were at odds in relation to the school to be attended by the child but that issue has now been resolved with the child commencing prep school at the D School each Tuesday and Thursday. The child’s commencement at school would facilitate the husband being able to collect the child directly from school.
Observation sessions by the family consultant of each of the parents with the child were unremarkable with the child seeming comfortable with each parent and both parents responding appropriately to the child.
Otherwise, the mother was mildly critical of the husband’s parenting skills in regards to his perfectionism and his physical discipline of the child. The husband expressed some concerns as to the child being left unsupervised in the presence of his maternal uncle who suffers from Downs’s syndrome. The uncle does not live in the wife’s household.
The parties reported some communication difficulties to the family reporter but that they had a reasonable co-parenting relationship.

Interim Parenting

The parenting issue between the parties, having come down to the issue of one night per fortnight, is almost non-justiciable. Neither party provide any cogent submissions other than their own opinion as to appropriate time for the child to spend with the husband.
The child is five years of age and has commenced formal preschool attendances presumably with the intention that he will commence full-time kindergarten in 2018.
There is no issue that the child enjoys a good relationship with both parents.
In Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

THE LAW:

The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child (or another child who at the time was a member of the parent’s family) or family violence [s61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In the context of this matter both parties agree that there should be an order for equal shared parental responsibility for the child. It is appropriate that such order be made. As a consequence the Court is required to consider the questions of equal time or substantial and significant time.
Neither party now seeks orders for equal time and the proposals of both parties as to the husband’s time with the child both during school term, holidays and otherwise comfortably fits within the concept of substantial and significant time.

Best Interests:

The Primary Considerations: s 60CC (2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship:

In Mazorski & Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at [121] accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child is just five years of age. The wife has been his primary carer since birth. The parties have been able since separation to facilitate the child’s time with the husband such that as at the present time the child and the husband enjoy a good relationship. The child has been spending overnight periods with the husband on weekends and otherwise pursuant to interim orders and by reason of the parties’ own agreement.
It is appropriate that the child’s primary attachment to the wife be maintained by an arrangement that sees the child having a perception of the wife’s residence as being his primary care circumstances. Otherwise, it is meaningful to the child for him to continue to spend reasonable time with the husband in his household.
Neither party asserts any aspect of separation anxiety with the child moving between them but it is appropriate to limit the disruption to the child’s settled circumstances by unnecessary changeovers. This consideration is significant in the determination of the present interim parenting dispute.

Section 60CC(2)(b) – need to protect.

Neither party asserts that this factor has any relevance in the context of the present application.

The Additional Considerations:

Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
Many of the above considerations simply have no relevance bearing in mind the discrete issue for determination as to parenting.
There is no evidence as to any expressed views by the child and indeed his level of maturity would result in such views being afforded little weight.
The nature of the child’s relationships with both parents is considered above particularly in the context of “meaningful relationship”. It is important that the parental relationships continue to be important and significant for this young child.
Both parties have been engaged appropriately in the child’s life and decisions in relation to the child’s life.
The husband pays ongoing periodic child support and otherwise the child is financially provided for by the wife who has had the opportunity of remaining in the matrimonial home for some years since separation.
There is no practical difficulty and expense involved in the child spending time with either parent.
Neither parent makes any significant criticism of the other in terms of parental capacity and such factor will be more appropriately considered at final hearing on the basis of contested evidence at trial as will a consideration of the parties’ attitude to the child and their responsibilities of parenthood.
There are no issues as to family violence.
In the context of these interim proceedings, the Court is unable to make orders that would preclude the continuation of this litigation.
It is anticipated that final parenting proceedings will not be listed for determination until later this year as a single expert report in relation to parenting issues is to be prepared. Thus, interim orders need to be fashioned and put in place until final hearing and judgement.
It is considered that it is in the best interests of the child to be able to spend a settled three night weekend each alternate week with the husband and one overnight period again in the husband’s household in the other week. This reflects the child’s age and the need to continue the child’s primary care arrangements with the mother but facilitates the child spending significant time in the father’s household during term, having school holiday time with the father and other special days. As the child will be with one or the other parent on or proximate to relevant birthdays no order will be made as to such days.
Otherwise, the matter is expected to be determined by the end of the current calendar year and no orders will be made as to Christmas or the Christmas school holidays with the parties, if necessary, having leave to apply for such orders.
Orders will be made accordingly.

Interim Property

In her application commencing property proceedings the wife seeks in summary an order that the net assets of the parties be divided as to 45 per cent to the wife and 55 per cent to the husband and that there be a superannuation splitting order splitting 50 per cent of the husband’s accrued superannuation entitlement to her. Such application will, in due course, need to be amended to set out with particularity the property orders sought by the wife.
The husband in his further Amended Response filed 23 November 2016 to the wife’s Initiating Application seeks a property order to the effect that the net assets of the marriage be divided as to 20 per cent to the wife and 80 per cent to the husband. He does not seek a superannuation splitting order.
The wife has been in occupation of the former matrimonial home at Suburb A since separation. That property is subject to an outstanding mortgage to the National Australia Bank. The husband continued to meet mortgage payments in relation to the property until November 2016.
At that time the husband communicated to the wife his intention to sell the property as “I cannot afford the repayments”.
The wife asserts that mortgage payments are now in arrears since November 2016. Her weekly income comprises government support payments of $610.00 and child support since 1 August 2016 of $65.40 per week.
The wife says that at cohabitation she was employed and she continued in that employment until shortly before the child’s birth. She has not worked since and has been the primary homemaker and caregiver for the child.
At the time of cohabitation the husband was not in full-time employment. Subsequent to marriage the husband obtained salaried employment. In August 2012 the company E Pty Ltd was established. The husband has a 35 per cent shareholding in the company and was a salaried employee. He now says that he is employed by F Pty Ltd as and from early 2016 with his present salary being about $44,000.00 per annum. The husband’s present wife is a part-time employee of E Pty Ltd.
The wife asserts that the time of marriage the husband had interests in the following property:
a)Unit at G Street, H Town, Queensland: the husband asserts that this property was purchased off the plan in May 2007 for $670,000.00 with the purchase price being financed by way of first mortgage ($536,000.00) and collateral borrowing over his Suburb I property. This property was later sold by him in May 2015 for $373,000.00;
b)Unit at J Street, Suburb K, Melbourne: the husband asserts had a value of $500,000.00 and was subject to a mortgage of about $520,000.00;
c)Property at L Street, Suburb I, Sydney: the husband asserts had a value of $900,000.00 and was subject to a mortgage of $750,000.00;
d)a motor vehicle;
e)a share portfolio: the husband asserts had a value at this time of about $300,000.00;
f)unknown savings: the husband asserts he had savings at this time of $25,000.00.
The husband otherwise asserts that both parties had modest accumulating superannuation entitlements and motor vehicles.
Property M Street Suburb A: the wife says that this property was purchased by her father but in her name some years prior to marriage. The wife asserts no contribution to the purchase of the property that was later sold in April 2012 for $527,000.00. The net proceeds of sale, says the wife, were at that time directed by the wife to be paid to her father. Yet in her financial statement filed 6 March 2015 she deposes it appears to retention of some $195,000.00 in trust for Mr Q, her father. The husband for his part asserts that this was at all times the wife’s property. The wife adduced no evidence from her father.

The cohabitation

Following marriage the husband and wife moved to the property at N Street, Suburb O that, says the wife, the husband represented was his property but he now asserts was his mother’s property. The husband’s mother who was living in the property thereafter moved to reside in a duplex property at Suburb R owned by the husband’s sister. He says he has continued to pay rent to his sister in consideration of his mother occupying the property. The husband adduced no evidence from his mother.
The parties later purchased the present matrimonial home at C Street, Suburb A for $919,000.00 in the husband’s name. The husband asserts that the purchase price was funded in part by way of a mortgage secured over his mother’s home at Suburb O and otherwise by way of mortgage secured over the Suburb A property. The wife does not contend that she contributed to the purchase.
The wife asserts that the purchase price was funded from the proceeds of sale of the Suburb O property that sold for $1.2 million.
The husband says that the Suburb O property was subsequently sold by his mother in early 2011 for $1.3 million: Exh “E”, with the net proceeds being paid to his account. The husband asserts that he agreed to borrow the proceeds of sale of Suburb O from his mother to be repaid at a later date with interest of 5 per cent.
The husband says he then undertook certain renovations and improvement works to the Suburb A property and otherwise used the remaining funds to pay down his then various mortgage liabilities. He gives no detailed evidence as to the disposition of Suburb O funds.
Otherwise, the husband asserts that motor vehicles were purchased during cohabitation by way of mortgage redraw.
The Suburb A property the wife asserts was unencumbered at about the time of separation and the property is now subject to a mortgage to the National Australia Bank of $600,000.00. There is no evidence as to the history of this mortgage.

The husband’s assertion as to assets at separation and thereafter:

The husband asserts that at the time of separation in September 2012 there were the following assets and liabilities:
Property at H Town  $360,000.00
Property at Suburb K  $520,000.00
Property at L Street Suburb I  $900,000.00
Home at Suburb A  $1,100,000.00
Funds advanced by him to E Pty Ltd  $200,000.00
Superannuation – husband  $ 25,000.00
Motor vehicle 1 – husband   $100,000.00
Motor vehicle 2 – wife  $ 60,000.00
Retained as savings – wife  $ 60,000.00
Liabilities:
Mortgage security H Town  $   333,000.00
Mortgage security Suburb I  $   600,000.00
NAB mortgage security Suburb A property  $1,100,000.00
Debt to husband’s mother  $1,300,000.00
In October 2014 the husband sold his Suburb I property for $970,000.00. He asserts that the net proceeds of sale were about $183,600.00 from which he repaid to his mother $180,000.00.
In May 2015 the husband sold the H Town property for $373,000.00. He asserts the net proceeds of sale were about $280,000.00 on which he paid to his mother $250,000.00.
In July 2015 the husband asserts that he repaid to his mother the further sum of $500,000.00. He does not identify the source of those funds.
In September 2016 the husband sold the Suburb K property for $536,000.00. He asserts the net proceeds of sale were $513,000.00 from which he paid to his mother $500,000.00.
The total payments to his mother, he asserts, are $1,430,000.00. He asserts that he remains indebted to his mother for outstanding interest of approximately $170,000.00.
Yet the husband says that after repayment to his mother of the alleged principal sum of $1,300,000.00 his mother then directed that the funds be paid into an account nominated by the husband to be repaid on the same terms that he alleges in relation to the original loan. The husband makes no specific disclosure as to where these funds have been deposited nor what use may or may not have been made by him of these funds.
Notwithstanding the husband’s assertions as to his parlous financial circumstances, he appears since separation to have the wherewithal to purchase a recreational boat having a value of about $110,000.00 with P Finance borrowings of $122,000.00 with weekly repayments of $736.00. Overall, including ongoing mortgage payments on the Suburb A property the husband’s weekly expenses he asserts are $3,669.00, a sum greater than his weekly earnings. He asserts that he has substantially met his ongoing shortfall by using the funds re-lent to him by his mother and selling down his share portfolio. He adduces no documentary evidence to support his contentions.

St George Bank Documents

Documents produced on subpoena by the St George Bank reveal some perplexing entries in relation to the wife.
As at 31 December 2013 the wife held a term deposit with the bank with a balance of $307,697.00. Subsequently, funds were withdrawn from this term deposit in the period to 27 November 2014 on which date a final withdrawal of $100,958.00 was made. There is no reference to nor any explanation by her as to the application of these funds.
As at 31 March 2017 the wife had a credit balance standing in her account of $73,086.00. Presumably these relate in some way to the savings retained by the wife at separation as alleged by the husband.
Otherwise, the bank statements reveal significant deposits and withdrawals of funds in respect of which the wife gave no evidence.

Overall

The interim property applications by both parties are remarkable in their lack of forensic preparation. There is clearly available a documentary trail evidencing resolution of much of the factual matters in respect of which the parties are in dispute in particular the circumstances relating to the significant mortgage presently secured against the Suburb A property and the husband’s use of funds post separation.

Little regard has been had by both parties to the availability of such evidence to assist the Court in resolving these significant factual disputes. Particularly, the husband has failed to adduce evidence from his mother as to the most significant issue of the advancement to him of the whole of the proceeds of sale of her home, its repayment in its entirety and the subsequent re-advance of those funds to the husband under his absolute control.
The wife, for her part, has failed to adduce evidence from her father that would perhaps throw light upon what she asserts to be his funds notwithstanding significant sums of money being in her account subsequent to the time that she asserts the funds were paid to her father.

Interim Property

The Court has power under s 114 of the Act to make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including an injunction in relation to the property of a party to the marriage or an injunction relating to the use or occupancy of the matrimonial home. This provision grounds the wife’s application.
The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
In Strahan (supra), the Full Court said:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Secondly, the Court is to have regard to relevant matters in s 79 of the Act.
It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
Both parties in this matter, in any event, seek that the Court makes final adjustive orders.
There is no doubt that at the commencement of cohabitation the husband’s contribution was overwhelming when compared to that of the wife.
Yet the subsequent history is shadowy at best, leaving the Court unable to determine in reality the context of the presently available pool as asserted by the husband particularly as to the funds asserted by him to be made available to him by his mother now on two occasions over the relevant period.
The wife says that should she be no longer able to reside in the matrimonial home where she has had the benefit of occupation for five years since separation she will need to move to live with her parents. The wife’s parent’s home provides a viable alternative as to accommodation for herself and the child.
There is significant doubt as to the husband’s true financial circumstances particularly as to income. Although it appears that shortly he will have his wife and new child to support, he resides in his new wife’s home.
The evidence is such that there is unable to be a finding that, save for the application of capital funds that may be available to the husband from the funds readvanced to him by his mother, he has the capacity to service interest on a mortgage borrowing presently secured over the Suburb A property of $1.1 million.
In all the circumstances it is not appropriate that there be an order requiring the husband to meet ongoing mortgage commitments in relation to the Suburb A property. The wife does not seek to retain that property at least in terms of how the present property application is framed and on the evidence thus far has no prospect of being able to do so.
It is clear that the wife has a claim for property adjustment especially where she has been and now is the primary carer of the child. The full ambit of her claim is yet to be determined, as is the appropriate pool available for division.
By reason of the husband’s use of significant funds post separation that has as yet to be objectively explained it is not appropriate to release to him further funds.
In such circumstances the wife’s application for injunctive relief is to be dismissed. Otherwise, it is appropriate to order that the home at Suburb A be sold and that from the net proceeds of sale there be a modest sum payable to the wife with the remainder to remain in a controlled monies account in the name of the parties’ respective solicitors.
It is clear in the context of the discussion above that it is not appropriate for one or other of the parties to have the sole conduct of the sale of the Suburb A property. Accordingly, orders will be made that would require both of them to be engaged in the process.
Orders will be made accordingly.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 May 2017.

Associate:

Date: 19 May 2017

[2017] FamCA 377

19 May 2017

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Jurisdiction

Costs

Injunction

Procedural Fairness