TREGEAR & MORPHETT
[2014] FCCA 1854
•5 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TREGEAR & MORPHETT | [2014] FCCA 1854 |
| Catchwords: Property – short relationship – asset by asset approach – contributions – s.90SF factors. |
| Legislation: Family Law Act 1975 |
| McCall & Clark (2009) FLC 93-405 Norbis & Norbis (1986) FLC 91-712 Stanford & Stanford (2012) FLC 93-518 |
| Applicant: | MS TREGEAR |
| Respondent: | MR MORPHETT |
| File Number: | MLC 8410 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 12 & 13 June 2014 |
| Date of Last Submission: | 25 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Teicher |
| Solicitors for the Applicant: | Alpass & Associates |
| Counsel for the Respondent: | Mr G Ambrose |
| Solicitors for the Respondent: | Rodda Legal |
ORDERS
Parenting
That the parents have equal shared parental responsibility for the child X born (omitted) 2012.
That X live with the father.
That X spend time and communicate with the mother on a fortnightly regime as follows:
(a)In week one from Monday at 5.00 p.m. until Wednesday at 5.00 p.m.;
(b)In week two from 4.00 p.m. Friday until 4.00 p.m. Sunday
(c)At such other times including Christmas, Easter and birthdays as may be agreed between the parties in writing from time to time.
Property
That the Respondent pay to the Applicant within sixty (60) days of the date of these orders a lump sum of $6,860 provided that he retain an amount of $3,500 to be paid directly to his mother to satisfy a debt owing by the Applicant to the Respondent’s mother.
That in all other respects each party be solely entitled to the exclusion of the other to all items of real estate, personalty, chattels, bank account balances, motor vehicles and superannuation entitlements in that party’s possession or control.
That each party be solely responsible for and indemnify the other in respect of any and all liabilities in that party’s name.
IT IS NOTED that publication of this judgment under the pseudonym Tregear & Morphett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8410 of 2013
| MS TREGEAR |
Applicant
And
| MR MORPHETT |
Respondent
REASONS FOR JUDGMENT
Applications
The parents are in dispute as to the parenting and living arrangements for their one child, X, born (omitted) 2012 (aged two years and five months). The applicant, Ms Tregear, also seeks a property settlement. The respondent proposes that application be dismissed and there be no financial orders.
Ms Tregear proposes an order for equal shared parental responsibility for X and that he live with her as follows:
a)Each alternate week from 4 pm on Friday until 4 pm on Tuesday;
b)On the other week, from 4 pm Monday until 4 pm Thursday;
thereby constituting an equal time arrangement over a fortnightly regime.
The father seeks orders whereby X live primarily with him and spend two nights in each week with the mother, being Monday to Wednesday in week one and from Friday to Sunday in week two, on a fortnightly regime.
Each party proposes supplementary orders in respect of X’s care to accommodate him attending day care and spending time with relatives when the parties are working.
Background
The father is 31 years old. The mother is 27.
The mother has a child, Y (aged seven years), from a previous relationship and who lives with her.
The parties lived together between August 2010 and August 2013. They did not marry.
X initially stayed with the mother after the separation but on 17 September 2013 she left X in the father’s care. The mother says that this was to be only a temporary measure. The father says that X was left with him indefinitely.
At around this time the mother suffered some mental health issues. There was some suicidal ideation. She was admitted to hospital.
On 20 September 2013 there was a violent incident at the father’s home and the mother sought to retrieve X. The father refused. The mother said he was abusive to her, which the father denies. He says that the mother violently tried to enter his house. There was police intervention. X was present throughout the incident.
The mother commenced proceedings by an application filed 30 September 2013. She sought a recovery order in respect of X and that he be returned to her primary care.
Consent orders were made on an interim basis on 9 October 2013 providing, inter alia, that X live with the mother as follows:
a)On Tuesdays from 2 pm until 7.30 pm;
b)On Thursdays from the conclusion of day care until 7.30 pm;
c)Each Saturday from 12 midday until 6p.m.
Further interim consent orders provided:
i)That the mother attend upon Dr P for a psychiatric assessment;
ii)That the mother not bring X into contact with her former partner and the father of her daughter, Mr T.
Further interim consent orders were made on 27 November 2013 as follows:
i)An order for a family report;
ii)That the mother arrange a referral from her general practitioner for her to see a psychologist and “comply with all reasonable instructions of the psychologist as to attending and counselling”;
iii)That upon commencement of counselling with the psychologist, then the mother’s time with X be varied, firstly, for her to spend time with him weekly between 6 pm Monday and 6 pm Tuesday, and then from 6 pm Monday until 9.30 am Wednesday, together with each second weekend from Friday until Sunday.
X has continued to live primarily with the father in the home that the parties and X shared during the relationship.
The evidence suggests that the mother has been transient in her accommodation. She has at times lived in a motel. She has stayed with friends or her sister. She now has rental accommodation which she says is on a rental/purchase basis. Her daughter, Y, continues to live with her.
The father is employed in the (omitted) business and works Mondays to Fridays. The mother is employed in the (omitted) field on a part time basis of some 10 hours per week. Her income is supplemented by Centrelink benefits. She says that she intends to obtain employment in “(omitted)” which would involve night work. She proposes that she would enlist the assistance of one or both of her parents to care for X if this eventuates. Neither of her parents gave evidence in these proceedings. There was evidence, however, as to a fairly recent violent altercation between the mother and her father.
The father has historically and continues to receive some assistance from his own mother in the care of X. No evidence was adduced from the paternal grandmother.
The Evidence
Both parties relied on their affidavits filed and were cross-examined.
A report from Dr P dated 20 November 2013 was tendered as an exhibit. He was not required for cross-examination. The report constituted a psychiatric assessment on the mother.
Dr P noted the mother reporting a psychologically disturbed childhood. She told him that her daughter suffers from ADHD with consequential challenging behavioural difficulties. He made no diagnosis of any mental illness. He did, however, at paragraph 109 opine:
The mother does have some problems with her personality which come to the fore in the mother’s difficulties in coping at times of high stress. In my opinion, the mother has had difficulties in the maturation of her personality and her coping skill when under stress is not well developed. In my opinion, there is insecurity, immaturity and a lack of self-confidence. In my opinion, the mother may have presented on cross-sectional assessment to be depressed and anxious, but in my opinion, there is no persistent depressive order, but rather persistent mild psychological issues.
In my opinion, the psychological problems that are evident from time to time and lead to the mother seeking psychological or medical help and thus furtive attempts at the prescription of anti-depressant medication do not represent signs of a diagnosable disorder of personality or evidence of a significant psychiatric disorder.
In my opinion, the mother would be advised to pursue psychological counselling to stabilise her coping mechanisms and develop and strengthen her personality. In my opinion, no medication is indicated. The personality vulnerabilities in the mother will become evident in the mother’s difficulty in maintaining interpersonal relationships, the development of mood symptoms under stressful circumstances and a degree of ongoing security and a lack of confidence in her abilities. Such problems can be minimised with psychological assistance.
Dr P considered that the mother’s parental ability would not be impaired conditional upon the application of appropriate psychological help.
The court also had the assistance of a family report prepared by Ms L, family consultant. That report is dated 12 May 2014 and prepared after interviews in late April. The paternal grandmother was also interviewed and observed with X. The mother’s daughter, Y, was not interviewed or seen with X due to permission being refused by her father.
Ms L recommends that X continue to live primarily with the father and spend time with the mother on a fortnightly basis as follows:
a)Each second weekend from Friday until Sunday evening;
b)On the other week, from Monday night until Wednesday morning.
This would represent an arrangement whereby X lived 10 nights a fortnight with his father and four nights with the mother. It is in accordance with the interim orders. The father adopts Ms L’s recommendations as his own preferred position and says clearly that he has been influenced by the report and those recommendations.
Ms L noted the number of transitions for X under her recommendations, but also that the parents agreed that X appeared to be coping with those moves.
Ms L was cross-examined. She agreed that there were positives in both the mother and Y having attended counselling and that Y had been to a paediatrician.
Ms L observed an attachment for X with both his parents and that he enjoyed a warm relationship with his mother. She also observed behaviour indicative of a “developed and secure bond with Mr Morphett”.
Ms L expressed some concerns in respect of Y’s behaviour in the home and stated at [106]:
Y’s clear negativity and oppositional stance is not conducive to the environment that X enters. It is understood from Ms Tregear that Y has a negative and angry response to her former stepfather, Mr Morphett. This emotional and volatile status described by Ms Tregear may influence and impact on X’s relationship with his father. X is very young and will model and absorb the statements, feeling and tension that may be evident in the mother’s household when Y demonstrates a negative response to the father.
Whilst noting the recent debate among social scientists as to the preferred parenting model for young children [115], Ms L also recognised “the agreed view appears to be that very young children benefit from involved parenting with frequent interactions with both parents”.
The Mother’s Case
The mother says that she was a victim of the father’s aggression and abuse and that she therefore felt obligated to remove herself and the children from that hostile environment.
She says that there is evidence from Dr P that she suffers no mental illness or diagnosable personality disorder. She relied on a report from her general practitioner dated 26 September 2013 annexed to her first affidavit which indicates that she is a low risk of self-harm or harm to others. She says that her psychologist, Mr J, concurs.
The mother says that she has previously been X’s primary carer with the father prioritising his work commitments. She says that she can also offer X an ongoing relationship with Y, which is better achieved on her proposal.
The Father’s Case
Mr Morphett says that the current arrangement has worked satisfactorily for X. He says that there remain concerns in respect of the mother’s parenting including:
a)That the child, Y, has unresolved issues in respect of the father and that X could be influenced accordingly by greater exposure in the mother’s home;
b)That the mother herself retains a negative and aggressive attitude towards the father which could also influence X by greater exposure in the mother’s home;
c)That the mother’s domestic and living arrangements remain uncertain and unsuitable. For instance, she purports to be intending to rely on her parents, but has had an admitted recent violent episode with her own father and her proposals in respect of her mother assisting are problematic;
d)That the mother asserts an intention to obtain night time work with the consequent uncertainty in respect of her ability to care for X;
e)Residual concerns in respect of the mother’s mental health and particularly given her lack of compliance and consistent attendance on her psychologist pursuant to interim orders;
f)A lack of certainty in that the mother’s current and future living arrangements and ability to properly accommodate X.
That by contrast he can provide certainty for X’s living and care arrangements in the home in which he is familiar. He can provide the assistance of the paternal grandmother whose role and relationship with X was unchallenged.
The relevant law
Both parties seek an order for equal shared parental responsibility for X. This is despite their mutual allegations of family violence which would give cause to consider the presumption not applying. Further, issues in respect of X’s best interests may lead to the court considering the presumption not being rebutted.[1]
[1] Section 61DA of the Family Law Act 1975 “the Act”
If the presumption applies and is not rebutted or if the court makes an order for equal shared parental responsibility, then it is obliged to consider whether X’s best interests are served, firstly, by living equal time between his parents or, alternatively, living in an arrangement of “substantial and significant time” between his parents and whether each proposal is reasonably practicable.[2]
[2] section 65DA of the Act
X’s best interests are the court’s paramount consideration.[3]
[3] Section 60CA of the Act
Those best interests are determined by referencing the parties’ proposals and the probative evidence to the mandatory considerations set out in section 60CC(2) and (3) of the Act. The framework of those considerations is provided by section 60B of the Act which sets out the objects and principles of the parenting provisions of the legislation as follows:
(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).
Findings and Conclusions – Parenting Matters
I am satisfied that X has an attached, bonded and meaningful relationship with both parents. Ms L saw evident attachments and warm relationships for X with both parents.
The task for the court is to make orders which benefit the relationships in a qualitative sense rather than simply the allocation of time. Further, the court is to make orders which benefit X into the future but must, of course, take account of the current nature of those relationships in doing so.[4]
[4] McCall & Clark (2009) FLC 93-405
The evidence of the father generally, and from his interviews with Ms L, is of a willingness to facilitate and be positive in respect of X’s relationship with the mother. There are, however, concerns which remain in respect of the mother. There is evidence of her communications with the father continuing to be aggressive and derogatory. This is corroborated by some statements made to the family reporter who concludes at [125]:
Ms Tregear may also benefit in accessing some family support or counselling to help her through her intense anger. If this anger is not resolved then X may be at risk of being influenced against his father as he grows and develops the understanding of his mother’s negativity towards his father.
It is clear that there have been issues of family violence between these parties. Each is culpable in respect of anger and verbal abuse. There is evidence of the mother’s propensity for this to develop into physical violence given her behaviour at the father’s home in late September 2013. Nevertheless, the orders sought by each of the parties would seem to negate, at least in their minds, any overt danger or risk to X in this respect. Neither seek conditions on the other’s time, save and except that the father proposes a continuation of an order preventing the mother bringing X into the presence of Y’s father Mr T. The evidence suggests that a violent incident between the father and Mr T is behind the father seeking this order. He conceded, however, that there is no evidence of Mr T having mistreated X.
X is just two years old. He is unable, therefore, to formulate any views or preferences as to his living or parenting arrangements.
The nature of X’s relationship with each of his parents is a familiar one. The evidence is that the mother was previously his primary carer, but that X has developed a bond and attachment with his father through the course of the interim orders which of course were initiated, in part, by the mother voluntarily leaving X with him.
I am satisfied that X has an ongoing and close relationship with his sister, Y. There remain some concerns, however, in respect of Y’s own behaviour which perhaps is complicated by her ADHD. The evidence suggests a negative response by Y to Mr Morphett and, given her own age and issues, a concern that this may be transferred on to X.
Ms L recognises that X has already endured two changes in his living and parenting arrangements in his young life. Firstly, there was the separation of his parents which saw him living primarily with his mother and spending relatively limited time with his father. This changed in September 2013 when X went to live primarily with his father. His time initially with the mother was limited to day time only on three occasions per week, but then extended to overnights. The mother’s proposal would subject X to yet another fundamental change in his living arrangements, being an equal time arrangement between the parents. I am satisfied, on the parents’ evidence, however, that X appears to have coped satisfactorily thus far with these changes. The court, like Ms L, can only speculate as to the effect on this young child of yet a further change for him and comment that generally speaking children’s best interests are served by stability and routine.
The practical aspects of the parties’ proposals are of some significance. The father effectively supports a continuation of the status quo with him being the primary parent. I am satisfied that he has a demonstrated ability in this regard. He has his mother available to assist him. Her role is not challenged. To the contrary, I have some doubts as to the practical application of the mother’s proposals. She expresses an interest to work at nights although I accept that nothing concrete has yet occurred. She says that she would enlist the assistance of her parents. I would have been assisted by seeing and hearing from them given the prospect that they would be engaged at nights or presumably during the day whilst she slept. Her evidence was vague and uncorroborated in this regard. She told the court only that her mother does not drive but could use train transport. She conceded a violent altercation with her father as recently as January 2013. Whilst offering her parents as likely support, it seems from the evidence that the mother has previously used various friends and relatives when in need of support. Consequently, on the evidence as a whole, I am satisfied that the father’s proposals offer more certainty and consistency in respect of his care and level of support for X.
The mother’s proposal of an equal shared arrangement indicates that she does not effectively challenge the father’s capacity to care for X. The observations and recommendations of the family reporter offer corroboration. The evidence does not satisfy me that the mother has properly addressed her personal issues which saw her suffer an episode in September 2013 and cause her to leave X in the care of the father. Importantly, orders were made for the mother to obtain psychological assistance. These orders were clearly made on the recommendation of the psychiatric assessment of Dr P. It is of concern that the mother has not consistently attended appointments with her psychologist. Her attempts at excuse and justification during cross-examination were frankly unsatisfactory. The psychiatric assessment clearly connects her parenting capacity to continuing psychological counselling.
There is also an issue as to the mother’s ongoing capacity to provide for X’s physical needs and, in particular, his accommodation. She has previously refused to advise the father of the details of her own living arrangements. These have varied from motels, to friends, to relatives. Her evidence in court as to the circumstances of her living with her sister, Ms J, were again vague and uncertain and showed a general reluctance to admit that another resident of that home had been imprisoned and most likely for drug offences, although the mother claimed, not convincingly, not to know the reason for that person’s incarceration.
I am not satisfied that the mother has the capacity or insight to attend to X’s emotional needs and, in particular, his need for a stable and positive relationship with his father. Her evidence in court satisfies me that she remains negative and aggressive towards the father, consistent with her previous capacity to abuse him through various media and directly. The concern remains that X will assimilate some of the mother’s views unless she desists. The mother’s attitude to her parenting responsibilities is compromised accordingly.
I am satisfied that orders in the terms of the mother’s proposal give some likelihood for further litigation. I have residual concerns as to her capacity to provide for X’s physical and emotional needs. If her previous transience and attitude continue then further litigation is likely. To the contrary, the father’s proposal would see X in his primary care and, in my view, give the stability and connection for X which would be less likely to bring the parents back to court.
On a balance of the evidence I am satisfied that X’s best interests are served by living primarily with the father and with orders in accordance with his proposals. These orders would give sufficient frequency for X to maintain a relationship with his mother and his sister. They would also give X the benefit of a home base with his father which is now proven in its success. I prefer the father’s proposals for the day-to-day care of X which would involve assistance from his own mother, as against the uncertainty of the mother’s proposal. There are aspects of the behaviour, personalities of both the mother and Y which, in my view, remain unaddressed and to which X’s best interests are served by more limited exposure.
Despite the reservations set out above, I am satisfied than an order for equal shared parental responsibility is in X’s best interests. He should have both parents participating in the important decisions in his life. It is now up to the parents to discharge these responsibilities.
I do not intend to make further or supplementary orders for the care of X. Quite simply, each parent is responsible for X’s welfare and safety when he is in that parent’s care. If they delegate then they must do so responsibly.
Property
Counsel for each party provided written submissions, including the asset pool which appears to be agreed as follows:
117 Property S (valued at $411,600, less (omitted) Bank mortgage loan, $343,000 – net) $68,600
Respondent's Ford motor vehicle (equity) $ 2500
Respondent's Mitsubishi motor vehicle (equity) $ 3000
Applicant's Commodore motor vehicle (negative equity) $ (1500)
TOTAL: $72,600
Superannuation
Respondent's (omitted) superannuation $42,715
Applicant's (omitted) superannuation $18,173
_______
TOTAL: $68,888
The parties have the following liabilities:
Respondent's (omitted) Bank Mastercard $ 3060
Applicant's (omitted) Bank personal loan $ 9200
Applicant's (omitted) Bank personal loan $11,500
Applicant's (omitted) debt $10,267
_______
TOTAL $34,027
The respondent’s latest affidavit states that the Property S property has been valued at $420,000. Their submissions, however, agree the lower value for reasons best known to them. Consequently, I will accept their agreed value.
The applicant counsel’s final submissions and the tenor of her evidence is that the abovementioned loan and credit card liabilities be excluded from the pool of property for the purposes of my reasons. This is understandable, in my view, given that each brought the liabilities into the relationship except the applicant’s debt in her name alone to (omitted) Finance, where on her own admission she has retained the assets purchased with the (omitted) loan.
The respondent says that the application should be dismissed on the basis that the circumstances of this short relationship do not render it just and equitable to make any alteration of their property interests and particularly given the initial contributions by the parties, their contributions during the relationship, and the relevant section 90SF factors.
The applicant seeks a cash adjustment of $40,000 which, on my calculations, with a pool inclusive of superannuation entitlements, would give her net $56,673 from a total pool of $141, 488, being 40%. These calculations exclude the liabilities. Neither party seeks a superannuation splitting order. The submissions of counsel for the applicant suggest that the cash adjustment she seeks would amount to a 30 per cent distribution in her favour. I cannot understand the basis of this submission. If I am to include the liabilities in the pool then the tangible assets have net value of $38,573 and the property pool inclusive of superannuation is $107,461. The orders sought by the applicant would therefore give her a net $25,706 or 23.9%.
There are some indicators for me here to take the relatively unusual step of considering this matter on an asset-by-asset basis.[5]
[5] Norbis & Norbis (1986) FLC 91-712
The relevant factors include:
a)That this was a short relationship of just less than three years duration;
b)The applicant’s own evidence is that the parties kept their finances separate and, to a degree, secret;
c)The respondent claims regular financial contributions and injections by his parents. When challenged in cross-examination, the applicant responded that “I have no doubt that it’s true, I’m just not aware of it.”;
d)The nature of the assets is essentially now the same as it was at the date of cohabitation, save and except that the applicant’s motor vehicle was purchased by her at or post-separation and the applicant has incurred the (omitted) Finance debt but kept the associated assets without them being included in the pool.
e)The thrust of the applicant’s evidence was that each party was responsible for their own liabilities during the relationship which, with the exception of (omitted) debt, each brought into the relationship.
Nevertheless, and even taking an asset-by-asset approach, I must consider the contributions of both the applicant and of the respondent to those assets.
The respondent introduced the equity in the property at Property S into the relationship. His parents hold a minority 2 per cent interest. The evidence suggests that he owned the motor vehicles. The respondent does not contest that there were financial injections from his parents but cannot concede as to quantum as she was not appraised of these arrangements. The respondent worked full time during the relationship and contributed to the family unit generally and including the applicant’s daughter, Y.
The applicant entered the relationship with virtually no assets and bringing the above liabilities still in her name. She did, however, make some contributions. She was employed on a part time basis for a part of the relationship. Her unchallenged evidence is that she contributed financially and directly to some of the outgoings on the property. Her further unchallenged evidence is that she contributed financially to the improvement of the property by the purchase of plants at some value. She is unchallenged in her evidence that she contributed her labours to the maintenance and improvement of the property. She contributed to a degree as homemaker and parent to X. She did, of course, have the benefit of living in the home.
There are also considerations on the evidence in respect of the matters under section 90SF of the Act. By reason of these orders, X will live primarily with the father. The mother’s current circumstances suggest that Mr Morphett will also be primarily responsible for X’s financial support. Conversely, Mr Morphett has a significantly greater income than Ms Tregear, both currently and potentially. The evidence is that his current annual gross income approximates $83,000. Ms Tregear only works part time at this stage although, as set out above, she has ambitions to return full time to the work force.
The only tangible assets of significance are the equity in the home and the motor vehicles. The latter, of course, are depreciating assets and Ms Tregear’s was purchased post-separation. It is difficult to see any contribution by either party within a short relationship to the other’s motor vehicles during the relationship. The liabilities of the parties on the evidence of the parties were each considered and treated separately and with each responsible for their own debts. Their finances were kept separate and, in part, secret. I consider it appropriate to consider the contributions on an ‘asset-by-asset’ basis. I think it is proper that each be responsible for their own liabilities.
The respondent argues that in all of these circumstances it is not just and equitable to alter these parties’ property interests and I should first make this determination.[6]
[6] Stanford & Stanford (2012) FLC 93-518
On consideration, I disagree with this submission from counsel for the respondent. I am of the view that some recognition of the contributions of the applicant should be given albeit being significantly inferior to that of the respondent. In summary the only asset relevant to the applicant’s contributions is the home. She did make financial and non-financial contributions. She made indirect contributions as a parent and as a homemaker. The overwhelming contribution, however, was by or on behalf of the respondent. The relationship was short. The equity in the home is not substantial. Taking all of the above contributions into account, I am satisfied that an order whereby the applicant receives 10 per cent of the equity in the former matrimonial home is appropriate, just and equitable, being a quantum of some $6860.
Given X’s circumstances, together with the discrepancy in earning capacity, I do not intend to make any further adjustment on account of section 90SF factors.
There remains one further issue. The respondent’s evidence is that his mother loaned a sum of $3500 to the applicant to satisfy a debt owing by her to Y’s father. Counsel for the applicant argues in her submissions that this is a civil issue between the applicant and the respondent’s mother. This is perhaps the clearest acknowledgment by the parties that they kept their finances separate. Such debate is unnecessary, however, given the unequivocal and unambiguous statement by the applicant in the witness box that:
I agree that I will pay (to Ms K) the first $3500 from any award I get here.
Whilst arguably the $3500 is a debt of the relationship (although perhaps not so on a strict asset-by-asset approach, I intend to take the applicant at her word and believe that this would give justice and equity to the situation.
Consequently, there will be an order by way of property settlement whereby the respondent pay to the applicant the sum of $6860, but that an amount of $3500 be retained to be paid directly to the respondent’s mother, Ms K.
Pursuant to section 90SM(3) of the Act I must not make an order unless satisfied that, in all the circumstances, it is just and equitable to do so. It is the orders themselves that must be just and equitable and not just simply the percentage distribution. Having been satisfied that it is just and equitable to alter the parties’ property interests, and considering the contributions of the parties directly, indirectly and as a parent/homemaker, together with the particular circumstances of the parties referenced to section 90SF of the Act, and given the short duration of the relationship, I am satisfied that orders in the above terms are just and equitable.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 September 2014
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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