Treloar & Treloar (No. 2)
[2007] FamCA 1127
•16 August 2007
FAMILY COURT OF AUSTRALIA
| TRELOAR & TRELOAR (NO. 2) | [2007] FamCA 1127 |
| FAMILY LAW – CHILDREN - With whom a child lives – Relocation - application by wife to relocate with children to be with her new partner – wife claims husband unable to care properly for children, is unreliable, disorganised and fails to pay utility bills –husband needs to improve organisation and manage his finances - husband involves children in adult issues, denigrates the wife and her partner in the children’s presence and has attempted to influence children – wife fails to appreciate husband’s role in children’s lives – children close to both parents and are well settled and “thriving” in current arrangement - relocation not in the best interests of the children – children to remain living with both parents on an equal shared basis - husband restrained from denigrating the wife or her partner. FAMILY LAW – EVIDENCE – family assessment report - wife criticised methodology used by psychologist and assessment and recommendations made - no flaw in methodology and no basis for rejecting conclusions or recommendations. FAMILY LAW – PROPERTY SETTLEMENT – treatment of husband’s DFRDB pension – unrealistic to include lump sum value of pension in asset pool – not appropriate to treat pension as income or financial resource – pension is “another species of asset” to which both parties contributed – s 75(2) adjustment to non-superannuation assets and pension on account of wife’s greater income and benefit to the wife of cohabitation with new partner - Order: non-superannuation assets 55%/45% in husband’s favour, superannuation interests (excluding pension) divided equally, husband’s pension 87.5%/12.5% in husband’s favour - matter adjourned for trustee to be accorded procedural fairness and be provided with a copy of proposed splitting order in relation to pension. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA 75(2), 79(2) & 79(4) |
| AMS v AIF: AIF v AIMS (1999) FLC 92-858 A v A: Relocation Approach (2000) FLC 92-035 |
| APPLICANT: | Mrs Treloar |
| RESPONDENT: | Mr Treloar |
| FILE NUMBER: | ADF | 1860 | of | 2005 |
| DATE DELIVERED: | 16 August 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATES: | 9 & 10 November 2006 25 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ross |
| SOLICITOR FOR THE APPLICANT: | Cardone & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | Barbara Rowe |
ORDERS
Children’s Issues
That the order made by this Honourable Court on 20 February 2006 be discharged.
That the husband and the wife have the equal shared parental responsibility for the children of the marriage … [a son] born … February 1995 and … [a daughter] born … February 2000.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the husband from the conclusion of school on Monday 27 August 2007 until the conclusion of school on the following Monday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holiday period the handovers take place at 4:00pm on each Monday with the party with whom the said children have been living delivering the said children to the residence of the other party.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the wife from the conclusion of school on Monday 20 August 2007 until the conclusion of school on the following Monday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holiday period the handovers take place at 4:00pm on each Monday with the party with whom the said children have been living delivering the said children to the residence of the other party.
That during the Christmas school holiday period in each year …………………………………………………………….
That the times the said children live with each of the parties shall be subject to the following special arrangements:
(a)For the Christmas period……………………………………..;
(b)In the event that the said children are living with the wife at the time, the said children live with the husband from 9:00am on Father’s Day in each year until the conclusion of school on the following Monday;
(c)In the event that the said children are living with the husband at the time, the said children live with the wife from 9:00am on Mother’s Day in each year until the conclusion of school on the following Monday;
That the parties be restrained and an injunction is hereby granted restraining each of them from changing the principal place of residence of the said children from the metropolitan area of Adelaide in the State of South Australia.
That the husband be restrained and an injunction is hereby granted restraining him from denigrating the wife and/or Mr S to or in the presence of the said children or either of them.
That each party is at liberty to attend all functions, events and activities ordinarily attended by parents at the school or schools attended by the said children from time to time.
That in the event that one or other of the said children is hospitalised or suffers a serious illness or injury, the party with whom that child is living at the time as soon as possible notify the other party and provide details of the hospitalisation, the treating doctor or the like professional, and if the child is hospitalised then the other party is at liberty to visit that child daily during such period of hospitalisation.
That pursuant to Section 62B and Section 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That all applications be dismissed and removed from the active pending cases list.
Property settlement
That within six [6] weeks of the date of these orders the husband pay to the wife the sum of FIFTY-SEVEN THOUSAND AND NINETY-FIVE DOLLARS [$57,095.00].
That contemporaneously with the said payment the wife transfer to the husband at the cost of the husband all that her estate and interest both at law and in equity in the house property situated at …G in the State of South Australia and being the whole of the land comprised and described in Certificate of Title Register Book Volume ….
That the husband do pay and discharge as and when they fall due all mortgage repayments, rates, taxes, insurance premiums and all assessments of whatsoever nature due and payable in relation to the said property to the exoneration of the wife, and the husband do indemnify the wife and keep her indemnified against and in relation to these payments.
That forthwith the husband transfer to the wife at the cost to the wife his interest in the Ford Explorer motor vehicle.
That forthwith the husband transfer to the wife at the cost of the wife his interest in the timeshare in the resort in New South Wales.
That the husband retain as his sole property absolutely free of any claim, right, interest or entitlement of the wife the following:
(a)His Ford Capri motor vehicle.
(b)His savings and investments.
(c)His superannuation entitlements with AMP, Westpac and MTAA.
(d)The furniture, household effects and all other items of personalty presently in his power, possession or control.
That the wife retain as her sole property absolutely free of any claim, right, interest or entitlement of the husband the following:
(a)Her Ford Explorer motor vehicle.
(b)The timeshare in the resort in New South Wales.
(c)Her savings and investments including the money invested with the Australian Scholarship Group.
(d)Her superannuation entitlements.
(e)The furniture, household effects and all other items of personalty presently in her power, possession or control.
That pursuant to Section 90MT(1)(b) of the Family Law Act 1975 (as Amended) whenever a splittable payment becomes payable out of the interest held by the husband in The Defence Force Retirement and Death Benefits (DFRDB) Scheme, The Defence Force Retirement and Death Benefits (DFRDB) Authority (“The Trustee”) shall:
(a)Pay 12.5% of the splittable payment to the wife, her administrators, executors, beneficiaries, heirs or assigns.
(b)Make a corresponding reduction in the entitlement of the husband to the splittable payment but for this order.
The operative time for the order in paragraph (20) hereof is the beginning of the fourth business day after the day a sealed copy of these orders is served upon The Trustee.
In default of payment by the husband as specified in paragraph (13) hereof the said property at G be sold forthwith on such terms and conditions as may be agreed between the parties and in default of agreement as determined by this Honourable Court, and the net proceeds of sale after payment of the costs of sale and the discharge of the existing mortgage to Adelaide Central Credit Union be divided as to 55% to the husband and 45% to the wife subject to the sum of TEN THOUSAND FOUR HUNDRED AND FIVE DOLLARS [$10,405.00] being paid to the husband from the wife’s share of the net proceeds of sale.
If either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms of this order within seven [7] days after the same shall have been tendered to him or her for that purpose then and in such case a Registrar or a Deputy Registrar of the Family Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.
That each party have liberty to apply for consequential orders in relation to property settlement.
That all applications be dismissed and removed from the active pending cases list.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Treloar & Treloar.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1860 of 2005
| MRS TRELOAR |
Applicant
And
| MR TRELOAR |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting and financial orders. The parenting orders relate to a son born in February 1995 and a daughter born in February 2000.
On 6 December 2005 the husband filed a Form 1 Application seeking final parenting and financial orders.
At the time of the trial, the husband sought orders in terms of his Amended Form 1 Application filed 11 October 2006 as follows:
3.1That the parties do share equally the parental responsibility for making decisions about major long term issues in relation to the children […].
3.2That the children do live with the husband […] who shall have the sole parental responsibility for daily issues with respect to the said children.
3.3That the children shall spend time with the wife as may be agreed between the husband and the wife or as ordered by this Honourable Court.
3.4That the wife be restrained and an injunction be granted restraining her from removing the two said infant children from the State of South Australia.
3.5That as and by way of settlement of property variation of settlement and pursuant to Part VIII of the Family Law Act 1975 as amended and in full and final settlement of each party’s claim against the other for a settlement of property:
a) That the wife do transfer to the husband the whole of her right title estate and interest in the jointly owned matrimonial property situated at and known as [the G property].
b) That in consideration of the said Transfer the husband do pay to the wife such monies as to this Honourable Court shall seem just and equitable.
3.6That the furniture and contents and items of household use and ornament situated in or about the premises at [G] aforesaid be divided between the husband and the wife as they shall agree between them or as ordered by this Honourable Court.
3.7That the wife has no interest either at law or in equity either now or at any time in the future in any superannuation fund in which the husband has an interest.
3.8That the husband has no claim either at law or in equity now or at any time in the future in any superannuation fund in which the wife has an interest.
3.9For the costs of and incidental to this Application.
The wife filed a Form 1A Response on 27 January 2006 seeking final parenting and financial orders.
At the time of the trial the wife sought the following orders:
5.1That the parties do share equally the parental responsibility for making decisions about major long term issues in relation to the children […].
5.2That the children do live with the wife who shall have the sole parental responsibility for daily issues with respect to the said children.
5.3That the wife be permitted to relocate with the children to the Sydney metropolitan area.
5.4Upon the wife and the children relocating to Sydney, the children shall spend time with the husband as follows:
5.4.1To commence in 2008 and every alternate year thereafter, from the conclusion of school on Easter Thursday to Easter Monday.
5.4.2From the conclusion of school on the Friday proceeding (sic) Father’s Day to Father’s Day.
5.4.3From the conclusion of school on the last day of the first, second and third school terms to the third Friday of each of the said school holidays.
5.4.4For the Christmas school holidays as follows:
5.4.4.1To commence in 2007 and every alternate year thereafter from the third Friday to the last Friday before the commencement of the next school term.
5.4.4.2To commence in 2006 and every alternate year thereafter from the first Friday to the fifth Friday [4 weeks].
5.4.5At such other times as may be agreed between the parties.
5.5That the husband’s time with the children referred to in paragraph 5.4.1 to 5.4.5 shall be subject to the following conditions:
5.5.1.That the husband shall provide to the wife no less than 21 days written notice of his intention to spend time with the children in terms of paragraphs 5.4.2 to 5.4.5.
5.5.2.That the husband and the wife shall share the costs of transport for the children.
5.5.3.That the husband shall not work during the periods the children spend time with him unless otherwise agreed.
5.6Upon the wife and the children relocating to Sydney the husband shall communicate with the children as follows:
5.6.1By telephone twice a week between 7.00pm and 7.30pm EST;
5.6.2By email, text message, internet and such other electronic means as are available to the parties;
with the wife to facilitate such communication between the children and the husband and make available to the children the necessary electronic equipment for this to occur.
5.7If the children live in the Adelaide metropolitan area the children shall spend time with the husband as follows:
5.7.1Every alternate weekend from the conclusion of school on Friday to 6.00pm on Sunday.
5.7.2Every alternate Wednesday from the conclusion of school to 8.00pm.
5.7.3From 10.00am on Father’s Day to the commencement of school the following day provided if Mother’s Day falls on a weekend when the children are spending time with the husband the husband’s time with the said children shall conclude at 10.00am on Mother’s Day.
5.7.4For a period of three hours on the children’s birthdays and the husband’s birthday at times to be agreed provided if the wife’s birthday falls on a weekend when the children are spending time with the husband, the husband’s time with the said children shall be suspended for a period of three hours at times to be agreed.
5.7.5To commence in 2008 and every alternate year thereafter from the conclusion of school on Easter Thursday to Easter Monday.
5.7.6To commence in 2007 and every alternate year thereafter from 6.00pm on 24 December to 6.00pm on 26 December.
5.7.7For half of the school holidays at times to be agreed.
5.7.8At such other times as may be agreed.
5.8That any handovers for the purposes of paragraph 7 that do not take place at the children’s school do take place at the wife’s place of residence or at such other places as may be agreed between the parties.
5.9That the husband be permitted to liaise directly with the children’s school to obtain all school reports, newsletters and other information as to the children’s progress at school and involvement in any sporting or extra curricular activities.
5.10That the husband be at liberty to attend all such school activities as the parent would normally be invited by the school including sporting and extra curricular activities.
5.11That the wife and husband do at all times keep the other advised of a landline phone number and address which the children can be contact when in their care.
5.12That if the children wish to telephone the other parent than the parent in whose care the children are at that time shall facilitate that telephone communication.
5.13That the husband and wife notify the other of any emergency involving the children within two hours of the emergency and permit the other parent to attend to the children in such emergency.
5.14That if the children reside in Adelaide the husband and wife be at liberty to take the children interstate during the school holiday period for a maximum of seven days provided that:
5.14.1Each will provide the other with 14 days written notice of such intended travel with an itinerary stipulating the destination date of departure and date of return and a contact number on which the children can be contacted.
5.14.2If the children miss any time they spend with the party then the children shall have make-up time with the said party at times to be agreed between the parties to be taken prior to the holiday.
5.15That the husband and wife be restrained and an injunction restraining each of them from moving the children from the Commonwealth of Australia without the prior written consent of the other provided that such written consent shall not be unreasonably withheld in the event of either party wishing to holiday outside the Commonwealth of Australia with the children and that in that event:
5.15.1Each party shall provide to the other at least 21 days written notice of their intention to take the children overseas for a holiday.
5.15.2Each party shall provide to the other party copies of flight details together with an itinerary stipulating the destination date of departure and date of return and an address and contact number on which the children can be contacted no later than 14 days before departure.
5.15.3If the children miss any time they spend with a party then the children shall have make-up time with the said party at times to be agreed between the parties to be taken prior to the holiday.
5.15.4The wife shall provide to the husband the children’s passports for the purpose of such overseas holiday and the husband shall return the children’s passports to the wife forthwith upon the children’s return from such overseas holiday.
5.16That the husband and wife shall consent to and sign any documentation for the issue of passports in respect of the children and any reissue of such upon expiration of them and the said passports shall be held by the wife.
Property Settlement
5.17That in full and final settlement of all claims either party may have or may hereafter have against the other the settlement of property:
5.17.1That within THIRTY [30] days from the date of this order the husband do pay to the wife the sum of SIXTY EIGHT THOUSAND NINE HUNDRED AND EIGHT DOLLARS [$68,908.00].
5.17.2Contemporaneously with the payment in paragraph 5.17.1 the wife do transfer to the husband at the cost of the husband all her estate and interest in the property situated at [G] being the whole of the land comprised in Certificate of Title Register Book Volume […] (“the former matrimonial home”).
5.17.3That prior to or contemporaneously with the said transfer the husband do pay and discharge Memorandum of Mortgage No. […] to Australia Central Credit Union Ltd (“the mortgage”) and the husband shall indemnify the wife and keep the wife indemnified against any claim or demand in respect thereof.
5.17.4That within 7 days from the date of this order the husband do transfer to the wife his interest in the Ford Explorer registration number […].
5.17.5That within 14 days from the date of this order the husband do deliver to the wife the following:
5.17.5.1The pie maker.
5.17.5.2Time life book collection.
5.17.5.3All personal photographs of the wife.
5.17.5.4All photographs of the children for the wife to make copies.
5.17.6That hereafter the husband shall retain for his sole use and benefit absolutely free from any further claim of the wife:
5.17.6.1His separate savings and investments.
5.17.6.2The furniture and effects in his possession.
5.17.6.3Any motor vehicle presently in his possession.
5.17.6.4His superannuation and other employee and entitlements subject to paragraph 5.17.8.
5.17.6.5Any other property of the husband not otherwise specified.
5.17.7That hereafter the wife shall retain for her sole use and benefit absolutely free from any further claim of the husband:
5.17.7.1Her separate savings and investments.
5.17.7.2The furniture and effects in her possession.
5.17.7.3Any motor vehicle presently in her possession.
5.17.7.4Her superannuation and other employee entitlements.
5.17.7.5Any other property of the wife not otherwise specified.
5.17.8That pursuant to Section 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment becomes payable out of the interest held by the husband in The Defence Force Retirement Benefits (DRFDB) Scheme, the Defence Force Retirement and Death Benefits (DFRDB) Authority (“The Trustee”) shall:
5.17.8.1Pay the percentage specified in paragraph 5.17.9 to the wife or the wife’s administrators, beneficiaries, heirs or assigns.
5.17.8.2Make a corresponding reduction in the entitlement the husband would have had in the DFRDB but for this order.
5.17.9That the percentage specified in 5.17.8.1 is 18%.
5.17.10That paragraph 5.17.8.1 has effect from the operative time and the operative time for these orders in 7 business days after service from the date of the orders becoming final.
5.17.11That the trustee of the DFRDB shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payments to, the wife in accordance with paragraph 5.17.8.2 of these orders.
5.17.12Save and accept as specifically otherwise provided each of the parties shall be liable and responsible for payments of debts including credit card liabilities incurred in his or her name and shall release the other from any liability in respect thereto.”
In relation to the costs of travel in the event that the children are permitted to relocate with the wife to Sydney, in her opening the wife’s counsel indicated that the wife was prepared to pay for four return airfares for each of the children to travel between Sydney and Adelaide, but she proposed that the cost of all other travel be shared equally between the parties, save and except the cost of the husband travelling to Sydney which he would have to meet himself.
The wife also made it clear during the trial that if the children were not permitted to relocate to Sydney with her then she would stay in Adelaide and her new partner Mr S would move to Adelaide.
As can be seen the wife seeks a payment of $68,908.00 from the husband. $3,308.00 of this is made up of $1,100.00 that the wife says the husband owes her for one half of Dr B’s fees for his first report, an amount of $825.00 being the cost of motor vehicle insurance for the husband’s motor vehicle which the wife paid, $633.00 being half of an amount paid by the wife for sports fees and school uniforms, and $750.00 being one half of the total amount of $1,500.00 redrawn by the husband from the mortgage subsequent to separation. Unfortunately, the wife presented no evidence whatsoever in relation to these matters save and except in her affidavit of evidence in chief she referred to the amount that the husband redrew from the mortgage. Apart from this the husband was not called upon to answer any of these allegations and he was not cross examined about these matters at all. Finally, and perhaps most importantly, none of these matters were the subject of any application made by the wife to this court. The detail was simply included in her case outline document and that is not good enough. However, I will revisit these matters later in my reasons.
The wife sought the delivery up of certain items of personalty. However, there was no evidence presented in support of this claim and no submissions were made during the trial. Thus I do not propose to make the order sought by the wife.
Factual Background
In January 1960 the husband was born and is now aged 47 years.
In April 1973 the wife was born and is now aged 34 years.
In 1977 the husband joined the Australian Defence Force.
In January 1992 the parties met in Adelaide when the wife joined the Defence Force Reserve.
In October 1992 the parties commenced cohabitation.
In September 1993 the parties married in Adelaide. Following their marriage the parties lived in Defence Force married quarters at R. The wife was employed as a child care worker until she returned to study in 1994.
In October 1994 the husband was posted to New South Wales. The parties lived in Defence Force married quarters in H.
In February 1995 the parties’ son was born and is now aged 12 years.
The wife gained employment 8 months after the son’s birth. When this position was made redundant she obtained a causal position with a bank. She left this position for a permanent position with a pharmaceuticals company.
In 1998 the husband requested to be discharged from the Defence Force and in January 1999 he was posted back to South Australia. The parties again resided in Defence Force married quarters.
The wife says that after the parties moved to Adelaide she undertook employment in a factory, and then in an office. She ceased working in November 1999 because she was pregnant with the parties’ second child.
In July 1999 the husband was discharged from the Defence Force. Upon this discharge he became entitled to the following:
17.1Long service leave (net) $17,912.00
17.2DFRDB-non preserved (net) $70,094.00
17.3DFRDB- preserved $16,531.00
17.4Pension entitlement per fortnight $538.00
Following the husband’s discharge from the Defence Force he was unemployed for 12 months.
In February 2000 the parties’ daughter was born and is now aged 7 years.
In June 2000 the parties purchased the former matrimonial home at G, at a purchase price of $146,000.00. According to the husband, the purchase was funded by way of a deposit from the husband’s retirement benefits of $36,000.00 and a mortgage for the remainder of the purchase price, being $116,800.00. The wife says that the husband’s sister assisted in the purchase and acquired a 1% interest in this property. The wife says the husband’s sister lived with the parties rent free for a period of time.
In 2000 the husband was employed as a casual security officer and then as a Defence Force Reservist for a period of 3 months, carrying out work at the Sydney Olympic Games. He was then unemployed for 11 months before obtaining a job with a tradesman for 15 months.
In July 2002 the wife joined the South Australia public service.
In November 2002 the parties refinanced the mortgage on the former matrimonial property for approximately $150,000.00. With these funds a Ford Explorer motor vehicle was purchased. The husband says the funds were also used to consolidate debts. The wife says at this time the husband’s sister’s interest in the property was terminated.
In January 2003 the wife commenced full time employment. She continued her involvement in the Defence Force Reserve.
In November 2003 the husband obtained full time employment in the mechanical field. The husband’s income continued to be supplemented by his DFRDB pension.
On 25 May 2004 the parties separated. The wife left the former matrimonial home to stay with a friend. By agreement the parties shared the care of the two children.
In August 2004 the wife rented a home at P.
In February 2005 the wife obtained a position in the public service requiring her to work a two week roster. The children were then cared for by the parties on a week and week about arrangement.
In April 2005 the wife commenced a relationship with Mr S, a public servant who resides in Sydney. Mr S is the daughter’s Godfather.
In November 2005 the wife moved to her current address at A. The wife’s mother and step father moved in with her.
In November 2005 the wife changed position within the public service. She is now working a two week roster but not working weekends. The children live with the wife in the week she works day shift and with the husband in the week the wife works afternoon shift.
On 7 November 2005 the parties consulted with Dr B, psychologist, and obtained a family assessment report. Dr B concluded in his report:
“My opinion is consistent with the children, in other words, I believe it would be in their best interests (as opposed to the interests of the adult parties) to continue with the existing living arrangements. I could not support the mother’s proposal to relocate to Sydney, with the children, though I respect her prerogative to move wherever she chooses. There is also the option of Mr [S] moving to Adelaide, however, I gather this has been explored and for financial and employment reasons it has been discounted.
If the mother chooses to relocate to Sydney I would support a proposal by the father for residence of the children and for the children to have contact with their mother according to the terms discussed in mediation. The mother’s proposal was based on the assumption that she would relocate with the children and that contact would be with the father, however, the guidelines for contact that she proposed could be used in “reverse”. Thus, in the event of the children residing with their father I would recommend that the children have contact with their mother for all of the short school term holidays, returning to their home in Adelaide on the weekend prior to the resumption of school term in order to help them settle and prepare for the resumption of school. Further, it would be recommended that the children have contact with their mother during the long summer school vacation for four out of six weeks and alternate Christmas Day contact and Easter contact if these do not fit in with the above rota. I would also recommend regular telephone contact and contact between the children and their mother on special anniversaries and occasions as agreed between the parents. Finally, I would recommend that the parents share the cost of airfares for the children to exercise the above contact plan.”
On 6 December 2005 the husband filed a Form 1 Application for Final Orders and a Form 2 Application in a Case.
On 27 January 2006 the wife filed a Form 1A Response and Form 2A Response to an Application in a Case.
On 20 February 2006 Judicial Registrar Forbes ordered by consent that the children reside with the wife from the conclusion of school Monday 20 February 2006 until the conclusion of school the following Monday and each alternate week thereafter, with the husband from the conclusion of school Monday 27 February 2006 until the conclusion of school the following Monday and each alternate week thereafter and on special occasions as agreed. It was also ordered that the husband be restrained from redrawing on the Australian Credit Union Mortgage Account and that the husband pay the instalments on the Australian Credit Union Mortgage as and when they fall due and payable. Orders were made that a Family Assessment report be prepared and valuations be obtained with respect to the former matrimonial home at the joint expense of the parties. Both parties were also restrained from discussing the proceedings with or in the presence of the children.
A decree nisi of dissolution of marriage was granted in May 2006.
On 28 July 2006 the wife filed an Amended Response to the husband’s Application for Final Orders.
On 11 October the husband filed an Amended Application for Final Orders.
Dr B provided an updated Family Assessment Report on 22 May 2006. In his report he made the following recommendations:
“18.that the children, […] and[…], continue to reside with their parents in Adelaide on a week- about arrangement;
19.that in the event of the mother choosing to relocate to Sydney, the children reside with their father in Adelaide and have contact with their mother and her partner, Mr [S], according to the following guidelines:
a) For all of the short school term holidays, returning to their home in Adelaide on the weekend prior to the resumption of school term in order to help them settle and prepare for the resumption of school;
b) For half of the long summer school vacation;
c) For alternate Christmas Days and Easters if these do not fit with the above rota;
d) Regular telephone contact between the children and their mother on special anniversaries (e.g. Mother’s Day) and other occasions as agreed between the parties.”
The current circumstances of the parties
The husband
The husband resides in the former matrimonial home at G. The children each have their own bedroom there when they stay with the husband.
The husband works full time in the mechanical field. His hours are 8:30am to 4:30pm Monday to Friday.
The husband earns $555.00 gross per week from his employment. He receives a DFRDB pension of $302.00 net per week, child support of $54.83 per month, and a Centrelink parenting payment of $49.00 per week.
The husband’s financial position is poor. He owes school fees, he cannot afford to have his hot water service repaired, and his telephone and electricity have been cut off at various times. He says he has to rely on loans from his father to get by.
Both children are generally in good health, although the son suffers from asthma and the daughter wears glasses because she has a “lazy eye” and short-sightedness.
Both children are involved in sport and extra-curricula activities. The son plays hockey, rugby and baseball. The daughter attends ballet lessons.
The wife
The wife lives in a rented house at A. It comprises 4 bedrooms and has a substantial secure back yard. When they are with the wife the children each have their own bedroom.
Until just before the commencement of the trial the wife’s parents were also living at the wife’s home. However, they are now travelling around Australia.
At the time of the hearing the children had just completed Years 6 and 1 respectively. The parties had agreed to pay one half of the school fees and ancillary costs, but the husband owes the school $2,000.00.
The wife has re-partnered with Mr S, and they intend to marry and have children of their own. Currently Mr S lives and works in Sydney. He visits the wife in Adelaide on a monthly basis.
Mr S is a senior public servant and he owns his own home. His home comprises 3 bedrooms and it has a modern and upgraded kitchen and bathroom facilities. He also owns an investment property which is leased out.
Apart from his employment with the New South Wales public service Mr S has part time employment training in various aspects of his profession.
Mr S’s salary package is approximately $74,000.00 gross per year. He works a roster that commences at 7:00am and finishes at 5:30pm four days each week, and every second weekend he has a four day break.
The wife is a public servant with the South Australian public service. She works one week of day shift from 8:45am to 3:15pm, and one week of afternoon shift from 1:00pm to 9:30pm. She has the children with her in the week that she works day shift.
The wife earns $870.00 gross per week from her employment. She receives $50.00 per week tax free from her involvement in the Defence Force Reserve, and she receives Centrelink tax benefits and rent assistance of $84.00 per week.
The wife pays child support to the husband at the rate of $54.83 per month.
The wife plays sport competitively, and she is a member of the South Australian team. She has been added to the Australian training squad but at the time of the trial she had not been able to take up this opportunity.
The issues in dispute
Children’s issues
The primary issue is with whom and where the children will live. The wife wants the children to live with her in Sydney and spend time with the husband in Adelaide, but even if she stays in Adelaide she wants to have the primary care of the children. The husband wants the children to live in Adelaide primarily with him and spend time with the wife in either Adelaide or Sydney wherever she is residing.
In the context of this primary dispute the following issues have emerged:
58.1The views of the children. The son has expressed the view that he wants to leave the current living arrangements in place, but the daughter prefers not to make a decision about where she wants to live.
The husband says that great weight should be accorded to the children’s views and particularly the son’s, but the wife says that they are unreliable because of the flawed methodology of the psychologist Dr B, and in any event, because of the “emotional” influence exercised on the children by the husband. The husband denies that he has influenced the children in the expression of their views.
58.2The wife says that her personal circumstances will improve greatly in Sydney and that will impact favourably on the children. She will be able to pursue a course of study and have the full time ongoing support of her partner Mr S. She says that the children will be able to cope with the inevitable changes to their lives and they will be able to maintain a close and loving relationship with their father by spending time with him primarily during school holidays and by speaking to him on the telephone on a regular basis.
The husband says that the wife is acting out of self-interest and she is not thinking of the children at all in proposing to relocate with them to Sydney. The husband says that the children are progressing extremely well in Adelaide where they can see both parents on a frequent and regular basis. He says that a move to Sydney will detrimentally affect their relationship with him, whereas in Adelaide they can continue their stable, settled and predictable life style.
58.3The wife says that the husband is not able to properly care for the children. She says that he does not provide them with a clean and tidy household, he fails to attend to their medical and personal hygiene needs, he fails to provide them with nutritious meals, he fails to provide any routine or structure to their lives, he does not actively engage with them, he does not become involved in their activities and leaves them to their own devices, he forgets to take them to sporting and other activities, he does not ensure that they are physically active, his inability to manage his finances impacts negatively on the children, and he is unreliable and disorganised. The husband denies almost all of these allegations and in turn alleges that the wife leaves the children with others for excessive amounts of time whilst she pursues her own interests and that she has an anger management problem. The wife denies leaving the children with others excessively, and although she concedes that she did have issues with anger, depression and lack of patience during the period of cohabitation this was caused by the stress of living with the husband and attempting to cope with his behaviour. In any event, the wife says that she has long since addressed and overcome any difficulties in this regard.
58.4The wife says that the husband places emotional pressure on the children, that he discusses adult issues with them including about the proceedings and the reports of Dr B, that he denigrates her and her partner to and in the presence of the children, that he adopts an abusive and belligerent attitude towards the wife and her partner in the presence of the children, and that he does not support or encourage the children’s relationship with her or her partner. The husband denies these allegations.
58.5The wife says that the recommendations of Dr B should be rejected. She says that his methodology was flawed, that she was misled as to the nature of the assessment, that he did not properly assess the children or their views, that he was in effect biased towards the husband, that he did not provide the wife with the same opportunities to put her position, that he failed to include relevant comments of hers in his reports, and he misreported other comments of hers.
Property settlement issues
By the conclusion of the trial there was no issue about the assets and liabilities of the parties. However, there was a significant dispute about how to treat the husband’s DFRDB pension. The wife sought that there be a splitting order such that she receive 18% of each pension payment. The husband sought that his pension be treated as a financial resource and income, and on that basis when comparing the incomes of the parties his pension should be left entirely with him.
In relation to the respective contributions of the parties the wife says that they should be assessed as being equal both in respect of the non-superannuation and the superannuation assets (excluding the pension), but the husband says that they should be assessed at 60%/40% in his favour in relation to the non-superannuation assets and equal in relation to the superannuation assets (excluding the pension). The difference on the husband’s case is the greater initial contribution made by him. For the wife’s part she concedes that the husband made a greater initial contribution but she says in effect that that is offset by her greater contribution in other areas during cohabitation and subsequent to separation.
In relation to the relevant Section 75(2) factors, the husband submits that if the status quo continues with the children then there should be no adjustment, but he says that if contributions are assessed as being equal then there should be an adjustment of 10% in his favour to allow for the wife’s greater income, property and financial resources. Equally, the husband says that if there is a superannuation split that will reduce the husband’s income and increase the wife’s income, and there should be an adjustment for this in his favour.
The husband further says that if the children are permitted to relocate then the impact of the wife having the primary care of the children should only result in a 10% adjustment in her favour, resulting in an overall assessment of 50%/50% in relation to the contributions of the parties.
The wife says that the only adjustment for any Section 75(2) factor should be to the husband’s pension. She says that as a result of the wife’s higher income and greater earning capacity her entitlement should be reduced to 18%. With the other categories of assets the Section 75(2) factors balance each other out.
The principles to be applied
Children’s issues
This case involves the prospect of the children relocating to Sydney from Adelaide, and this is a significant issue in determining with whom the children should live.
Prior to the commencement of the Family Law (Shared Parental Responsibility) Act 2006 on 1 July 2006 the approach to determining a case involving the proposed relocation of a child’s residence had been settled by the High Court in AMS v AIF : AIF v AMS (1999) FLC 92-858 and the subsequent Full Court decisions of A v A : RELOCATION APPROACH (2000) FLC 92-035 and H v L (2000) FLC 93-036. There had been a more recent High Court case, namely U v U (2002) FLC 93-112, but that case did not alter the basic principles to be applied; what it did do was ameliorate the strict approach set out in A v A (supra). As was said by the Full Court in BOLITHO and COHEN (2005) FLC 93-224:
“72.We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
The High Court did stress though that the Court is not confined to a choice between the proposals of the parties. The objective is to achieve what is in the child’s best interests, but those interests may not be best served by what the parties put forward as appropriate arrangements for where the child will live and what time the child will spend with the parties. In that event all options that are open on the evidence need to be considered.
It is clear that there can be no dissection of the case into discreet issues, namely a primary issue as to with whom the children should live and a further or separate issue as to whether the relocation should be permitted (AMS v AIF : AIF v AMS, supra, per Gaudron J p.86,032). Further, the welfare or best interests of the child remains the paramount consideration but it is not the sole consideration. For example, the “legitimate interests and desires of the parent cannot be ignored” (AMS v AIF : AIF v AMS, supra, per Kirby J p.86,041). Moreover, a Court cannot require the applicant to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances (AMS v AIF : AIF v AMS, supra, per Gleeson CJ, McHugh and Gummow JJ p.86,027).
In A v A : RELOCATION APPROACH (supra) the Full Court set out in summary form the relevant principles to be applied as follows (p.87,551-87,553);
"In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
· It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
· The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."
To return to U v U for a moment, I stress that it was the strict application of this three stage process which the High Court doubted. Gummow and Callinan JJ said this, at p.89,089:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discreet and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
In my view the changes brought about by the Family Law (Shared Parental Responsibility) Act do not alter the approach to be taken to these cases. The assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the Family Law Act. However, the objects, the principles, and the factors to be taken into account in determining what is in the child’s best interests have changed, and there is a presumption that needs to be addressed, and these changes may very well affect the outcome in individual cases.
Turning then to Part VII as amended. Firstly, there are the objects of the provisions relating to children, namely:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
Secondly, the basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(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. (Section 60CC(2))
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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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. (Section 60CC(3))
The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of Section 61DA(1) 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 for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence. (Section 61DA(2))
Further the presumption may be rebutted by evidence 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. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
Property settlement issues
The provisions of Section 79 of the Family Law Act define the court's power and obligations in determining applications for property settlement. The court has a discretion to make orders altering the interests of parties in property, provided the court is satisfied that such orders are appropriate, just and equitable.
The court is obliged by the provisions of Section 79(4) of the Family Law Act to take into account the following matters:
81.1The financial and non-financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them (sub-paragraph (a) and (b));
81.2The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));
81.3The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));
81.4The matters referred to in Section 75(2) so far as they are relevant (sub-paragraph (e));
81.5Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));
81.6Any child support payable (sub-paragraph (g)).
Accordingly, in assessing the entitlement of each of the parties for property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in Section 75(2).
According to guidelines established through a series of leading decisions, the court should determine the following matters on the evidence, that is:
83.1Firstly, the court must determine the assets, liabilities and financial resources of the parties to the marriage.
83.2Secondly, the court must consider all relevant contributions of each of the parties, and, where possible, the court should assign an entitlement of each of the parties arising as a result of those contributions.
83.3Thirdly, the court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of Section 75(2). The court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions having regard to the relevant Section 75(2) factors.
83.4Fourthly, the court takes a step back and considers whether the proposed orders are just and equitable.
The proposals of the parties – children’s issues
The husband
The husband’s position is that the children should remain living in Adelaide, that he have their primary care and they spend time with the wife wherever she may be living. If she is living in Adelaide then that time should be:
84.1During each alternate weekend.
84.2During one half of each school holidays.
84.3For an evening meal in the intervening week.
84.4On Mother’s Day, on the wife’s birthday and on the children’s birthdays.
84.5By telephone.
He proposes that they continue to live in the former matrimonial home at G but that is subject to what happens with property settlement. There is a possibility that the husband will not be able to retain that home. However, he has not suggested where he and the children would live in that event.
He proposes that the daughter continue to attend the same school but that the son should attend either C College, M College or B College.
The husband asserts that the wife’s wish to relocate to Sydney is motivated solely by her self-interest in pursuing her career and residing with Mr S. He says that she has given no consideration to the impact on the children of such a move.
The husband says that the children are thriving in Adelaide and that they should be permitted to continue their stable and settled lifestyles. They are progressing well at school and they have established friendships and sporting and social activities. He says a move to Sydney would be entirely disruptive for them, and he has concerns that the wife will leave them in the care of others whilst she pursues her career.
The wife
The wife proposes that the children relocate to live with her in Sydney. They would live with Mr S in his home in F. He describes that home as a three bedroom, fibro home in very good condition. He says it has been regularly maintained and improved and it has modern and upgraded kitchen and bathroom facilities. He says the children have stayed in that home on a number of occasions and they have always seemed happy and comfortable in the surroundings.
The children have been tentatively enrolled in schools in the F area, namely P College for the son and L College for the daughter. The latter school is a primary school which adjoins the former.
In Sydney the wife intends to commence part-time study. She is able to undertake a course at TAFE in western Sydney. Apparently this course is only available in Adelaide on a full-time basis but in Sydney it is available part time which will enable the wife to also work part time. However, she will be supported financially by Mr S who is employed as a senior public servant. He also undertakes work outside of his full time employment as a trainer.
Apart from his own property at F, Mr S also has an investment property which is leased out. However, he may have to sell that property to fund the wife’s legal costs in these proceedings.
The wife says that her prospects of future employment in her chosen field of study are greater in Sydney than in Adelaide.
The wife and Mr S intend to marry and have children of their own.
As referred to earlier, if relocation is permitted the wife proposes that the children spend the following time with the husband:
95.1During alternate Easter periods commencing in 2008.
95.2The weekend of Father’s Day in each year.
95.3For all but the last weekend of the end of first, second and third term school holidays.
95.4For four weeks in each Christmas school holiday period.
The wife proposes that the children speak with the husband by telephone twice each week and they communicate regularly and frequently by email, text message, and via the internet including web-cam.
The wife offers to pay the cost of the children flying to and from Adelaide on four occasions in each year, with the cost of all other travel being shared. However, if the husband is to travel to Sydney to see the children then that would be at his own expense.
The wife also says that the husband should be on leave from his employment during all periods that the children are spending time with him.
In the event that the children are not permitted to relocate with the wife to Sydney, the wife says that she will not move and Mr S will come to live with her in Adelaide. In that event the wife proposes that the children live with her and they spend time with the husband each alternate weekend, each alternate Wednesday from the conclusion of school until 8:00pm, on special occasions and for one half of each school holiday period.
The wife proposes that in Adelaide the children would no longer attend Catholic schools but she did not indicate which schools she had in mind.
The wife’s reasons for wanting to move to Sydney include that she wishes to pursue her relationship with Mr S, she wants to take a different career path, and there are greater opportunities for her in Sydney both career-wise and sporting-wise. She considers that in Sydney the children will be exposed to a much more “interesting and dynamic lifestyle” and, that they will generally benefit from the environment that she and Mr S can provide them there.
The wife says that if relocation is not permitted and Mr S has to move to Adelaide that will create significant financial difficulties for him and that will impact upon the support he can provide to the wife and the children. He says that he would not be able to transfer his employment to South Australia and he will have to start his career again. He says though that there is no guarantee that he could even join the public service in Adelaide.
As a third alternative the wife has suggested that the husband could relocate to Sydney as well. They lived in Sydney for approximately 5 years from 1994 to 1999 whilst the husband was in the Defence Force. However, the husband said that not only does he not want to live in Sydney but he simply could not afford to do so.
The evidence
The wife was represented by Ms Ross. The wife gave evidence and was cross examined. She relied on her affidavit filed on 28 July 2006 and her Form 13 Financial Statement filed on the same date.
The husband was represented by Mr Richards. The husband gave evidence and was cross examined. He relied on his affidavit filed on 19 July 2006 and his Form 13 Financial Statement filed on the same date.
The wife called two witnesses, namely her partner, Mr S who filed an affidavit on 19 July 2006, and her friend Ms L who filed an affidavit on 28 July 2006. These witnesses gave evidence and were cross examined.
The husband relied on the affidavits of his solicitor, Ms Barbara Rowe filed on 11 October 2006, his friend Mrs A and her husband Mr A both filed on 19 July 2006. None of these witnesses were required for cross examination.
Dr B provided two reports respectively dated 7 November 2005 and 22 May 2006. The former was arranged privately by the parties but the latter was prepared pursuant to an order made by this court. Both of these reports were before the court and at the request of the parties Dr B was called as a witness by the court allowing each party to cross examine him.
The wife gave her evidence reasonably well, and in general terms I found her to be a credible witness. Indeed, in most instances, I prefer her evidence to that of the husband wherever there is a dispute.
I was not impressed with the evidence of the husband or with his presentation. He clearly does not like Mr S and he is angry at the wife. He conceded that he scowls at Mr S and stares at him on occasion. Indeed, I accept the allegations of the wife that not only does he do this and particularly at handovers, but that he is also abusive and belligerent towards both of them whenever they meet.
I find that the husband’s application for the children to live with him primarily is nothing more than a ploy in response to the wife seeking to relocate with the children. There is no basis on the evidence for the children to live with the husband primarily rather than continue the shared care arrangement that has been in existence since not long after the parties separated. I reject the husband’s claims that the wife leaves the children with others more than is necessary or such that their best interests are compromised. It is particularly telling that the husband did not make his application seeking orders in this court until the wife raised the prospect of relocation.
In relation to the children’s issues I highlight the following further examples of where I do not accept the husband’s evidence:
112.1I find that the husband has involved the children in adult issues by discussing with them the contents of the first report of Dr B.
112.2I find that the husband’s house is untidy and disorganised as alleged by the wife.
112.3I find that the husband continues to be upset and angry at the wife being in a relationship with Mr S, and at bringing the children into contact with him. I accept the wife’s evidence that the husband has required the children to refer to Mr S as “S”, and that he denigrates both the wife and Mr S to and in the presence of the children.
112.4I find that the husband has attempted to influence the children by telling them that he would be lonely if they go to Sydney whereas the wife has Mr S.
The husband did not hide his attitude to the wife and to Mr S, and I accept that he has no qualms in exposing the children to the same, but that said, he clearly enjoys an exceptionally close relationship with the children and they seem to be able to look beyond his thoroughly disagreeable manner.
Mr S’s evidence was appropriately supportive of the wife’s position. He clearly wants to continue his relationship with her and the level of his commitment is shown by the fact that he is prepared to move to Adelaide if the wife and the children cannot relocate to Sydney. However, his situation and the impact upon him and his finances of such a move cannot take priority over what is in the best interests of the children.
The evidence of Ms L was of no assistance to the court in determining the issues in this case. It was a grab-bag of largely irrelevant events. As such I do not know what the point was in calling her as a witness.
Neither Mr and Mrs A were required for cross examination and it is not difficult to see why. Like Ms L their evidence was of little or no assistance to the court in deciding this case. The most that can be said is that they both indicate that in the past the husband has assisted in the care of the children.
Dr B is an experienced psychologist who has had a significant presence in this jurisdiction for some time. His report and oral evidence have assisted me greatly in this case.
As referred to already, in his first report of 7 November 2005 Dr B recommended that the children should remain in Adelaide with the parties continuing to share their care. I set out his summary in full as follows:
“It was readily apparent during this assessment that [the children] have a close bond with each of their parents and Mr. [S] who, in turn, demonstrated good parenting skills and the capacity to provide safe and effective care of the children.
The mother’s motivation to move to Sydney is strongly influenced by her wish to reside with Mr. [S], however, she also contends that the children will be advantaged by such a move in terms of exposing them to new experiences and opportunities and a broader range of interests.
The father is opposed to the relocation of the children because he believes that the motivation for the move is most dominantly the mother’s self-interests rather than the best interests of the children. The father stated that he has contemplated making a formal application for residence of the children because at present they spend approximately two-thirds of their time with him. Associated with this, he is bothered by the mother’s willingness to leave the children in the care of other people in order to free her up for her own interests and he believes that this process would increase in the event of relocation.
The children were consistent in their wishes to leave things as they are at present, i.e. to continue residing in Adelaide and to have “shared-care” with their parents. When asked in the presence of the mother and Mr. [S] about their views on the possibility of relocating to Sydney, [the children] were noticeably uncomfortable and unable to give an opinion, in my judgment because this was not their wish and they did not want to hurt the feelings of their mother or Mr. [S]. When asked the same question in the presence of their father the children were consistent and adamant in their views that they would prefer to reside with their father in Adelaide and have contact with their mother in Sydney.
My opinion is consistent with the children. In other words, I believe it would be in their best interests (as opposed to the interests of the adult parties) to continue with the existing living arrangements. I could not support the mother’s proposal to relocate to Sydney, with the children, though I respect her prerogative to move wherever she chooses. There is also the option of Mr. [S] moving to Adelaide, however, I gather this has been explored and for financial and employment reasons it has been discounted.
If the mother chooses to relocate to Sydney I would support a proposal by the father for residence of the children and for the children to have contact with their mother according to the terms discussed during mediation. The mother’s proposal was based on the assumption that she would relocate with the children and that contact would be with the father, however, the guidelines for contact that she proposed could be used “in reverse”. Thus, in the event of the children residing with their father I would recommend that the children have contact with their mother for all of the short school term holidays, returning to their home in Adelaide on the weekend prior to the resumption of school term in order to help them settle and prepare for the resumption of school. Further, it would be recommended that the children have contact with their mother during the long summer school vacation for four out of the six weeks and alternate Christmas Day contact and Easter contact if these do not fit in with the above rota. I would also recommend regular telephone contact and contact between the children and their mother on special anniversaries and occasions as agreed between the parents. Finally, I would recommend that the parents share the cost of airfares for the children to exercise the above contact plan.”
In his second report of 22 May 2006 he came to the same conclusion. He said this in his summary:
“My overall impressions gained from this updated family assessment were very similar to those of the original family assessment performed last year. The children, […], impressed as being healthy (both physically and psychologically), happy and well-adjusted children. They each have a close emotional bond with their biological parents and with their mother’s partner, Mr. [S]. Differences observed during this updated assessment were the “beefing up” of the mother’s concerns about the quality of care the children receive when they are with their father and a similar response by the father in respect of the parenting the children receive during the time they spend with their mother. Further, while [the son] remained clear in his view to keep living arrangements as they are, [the daughter] displayed less certainty about this, however, while she expressed increased interest in residing with her mother, in my opinion [the daughter] was torn between loyalties to each of her parents (and Mr. [S]) and caution also needs to be exercised in relation to the weight that ought to be attached to [the daughter’s] views because of her young age. Further, it is highly noteworthy that [the daughter] spontaneously conceded that she would prefer an adult to make this important decision for her.
In coming to a conclusion about the issue of residence, I have been significantly influenced by the fact that the present arrangement (shared-residence) has been in place now for approximately two years. Impressions gained from the present assessment are that the children are thriving and that this is an extremely important measuring stick for the success or otherwise of the arrangement. Thus, in relation to the issue of residence, in my opinion it would be in the best interests of the children to keep things as they are; i.e. to maintain shared residence.
In the event that the status quo prevails, this will have obvious ramifications for the mother’s decision-making about relocation to Sydney. I remain of the opinion that the mother’s motivation to move to Sydney is strongly influenced by her wish to reside with Mr. [S] and while this is entirely her prerogative I am not convinced that it would also result in advantages for the children. If the mother decides to relocate to Sydney I would be forced to support the father’s application for residence, even though I believe the best arrangement from the children’s points of view would be to keep things as they are.”
The wife through her counsel attacked the methodology of Dr B and criticised his assessment and recommendations. Her complaints were as follows:
120.1The wife assumed that Dr B would be conducting various psychological-type tests of the children and of the husband and her. In cross examination Dr B said that he did not indicate that to the wife and nor did he give her that impression. He prefers to meet with the parents and the children and make his own assessment from what he is told and from what he observes on the basis of his 30 years of experience. I can find nothing wrong with this approach by Dr B and I reject any suggestion that the wife was given any information otherwise.
120.2The wife says that she did not understand that she could raise with Dr B all the concerns that she had about the husband and his ability to care for the children until after she read in the first report what the husband had told Dr B. She says that Dr B seems to have accepted the husband’s criticisms of her and in reaching his conclusions he did not have all of the information needed to make a balanced assessment of what was in the best interests of the children. In cross examination Dr B indicated that he did not rely on the criticisms made by the husband. He placed the most weight on how the children presented and what they each said to him. In that regard he indicated that the criticisms by each party of the other party’s care or lack of care of the children were not consistent with how the children presented, and thus he did not accept those criticisms. Again, I find nothing wrong with Dr B’s methodology.
Not satisfied though, the wife, despite being given the opportunity to make whatever criticisms that she wanted of the husband and his care of the children during the interview for the purposes of the second report complained that Dr B did not let her answer the criticisms made by the husband of her whereas he allowed the husband to respond to her criticisms. She also suggested that she was not given enough time to express all of her concerns. Dr B rejected these claims and again emphasised that it is the presentation of the children which matters to him and that in this case they appeared healthy and well-adjusted having close bonds with each parent. Thus, it was difficult for him to accept that either parent was not caring adequately for the children.
I also reject these baseless complaints by the wife and find that Dr B did not give preferential treatment to the husband.120.3The wife says that Dr B should not have interviewed the children about where they wanted to live in the presence of each parent. She considered that interviewing them separately would have provided a more accurate response, particularly in the absence of the husband. The wife’s case is that the husband has “emotionally” influenced the children.
In cross examination Dr B indicated that he conducted his interviews this way in order to observe the quality of the interaction, and he felt that the children would be more comfortable in talking about their views in the presence of each parent. Dr B added that he was alert to any influence and he deliberately chose to interview the children this way to test consistency across the interviews. In any event, on the second occasion he also interviewed the children separately from each parent.
I comment that in his typically professional way Dr B conceded that he could have interviewed the children separately on each occasion, and he may have received different responses, but he made a conscious decision to only interview separately on the second occasion.
Dr B also made the telling comment during his cross examination that the children’s views were only one of a number of factors in reaching his conclusions and making his recommendations.120.4The wife claims that Dr B did not put everything in his report that he was told by her. Dr B conceded this, saying that he tries to confine his report to what he considers relevant. Again, I find this to be a proper approach by Dr B.
120.5The wife suggests that Dr B misreported some of the concerns that she expressed to him.
In cross examination Dr B conceded that he did not always record precisely what the wife told him, but he indicated that that did not affect his conclusions or recommendations in any way. It is obvious to me from reading his report and hearing his oral evidence that that is the case.
120.6The wife claims that Dr B did not consider the advantages to the children of moving to Sydney.
In cross examination Dr B rejected this claim and again it is quite clear to the court that he considered all available options and the advantages and disadvantages of each of them. It is equally clear that Dr B concentrated on certain aspects of each option on the basis that some were more important than others. For example, it was a significant issue to consider the relationship between the children and their father and how a move to Sydney might impact upon that.
120.7The wife complains that a basis for Dr B’s conclusions was that there appeared to be no “compelling” reasons why the children should move to Sydney. Now, the authorities do not require there to be compelling reasons either way, but that does not mean that Dr B’s methodology was flawed because of how he approached this issue. The context of his agreement to the specific question that was put to him in this regard in cross examination was that the children were thriving in their current environment and that was contributing to their good psychological health and adjustment. Thus, this was a reason to leave them where they were rather than move to Sydney and put their psychological health at risk. Dr B considered that a move to Sydney could destabilise these children.
120.8The wife suggests that it was inappropriate for Dr B to reveal the comment that the daughter had made to Dr B that it might be nice to live in Sydney when she was being interviewed in the presence of the husband.
In cross examination Dr B said he considered it reasonable to “put the child to the test”, although he conceded that he “could have handled it better”. Again though that does not affect his conclusions or recommendations.
Post-separation contributions
Following separation the wife borrowed the sum of $5,000.00 to pay off one half of the amount owing on the Citibank credit card and the Grace Brothers store card. She has then been solely responsible for making payments off that loan.
For his part the husband has met his share of these debts and all of the Harvey Norman store card debt of $550.00.
The wife has commenced and is continuing to contribute to a scholarship fund for the future education of the children, and at the time of swearing her affidavit the amount in the fund was $5,578.00. I hasten to add though that this amount is not included in the assets for distribution, and therefore the relevance of this is as a Section 79(4)(c) contribution to the welfare of the children.
The parties have shared the care of the children since separation. However, there have been some concerns about the husband’s management of his finances and that has impacted on the care of the children during this time.
Although the parties have shared the care of the children, because of the difference in their incomes the wife has been required to pay child support to the husband, which she has done.
With the parties’ time share investment there are annual maintenance expenses. The evidence is that the husband has paid these amounts which total $636.00. However, there was an amount of $550.00 due in January 2007, and there was no evidence as to who would be paying this.
The husband has continued to make repayments off the mortgage registered on the title to the former matrimonial home, although the wife says that he has not always made the minimum payment required. However, there was no evidence presented as to that which would allow me to take it into account in any meaningful way. Further, the wife alleges that the husband re-drew $1,500.00 from the loan without telling her. The husband did not deal with this at all in his evidence, and he was not cross examined about it. Thus I do not know what I am supposed to make of it. The wife in her outline of argument says that she seeks to be reimbursed one half of this amount, namely $750.00. Clearly if nothing is done the wife will be prejudiced because the full amount of the mortgage is to be taken into account as a liability. I do not consider though that it is a matter of contribution, rather it is a matter of the justice and equity of the proposed orders, and that is where I will deal with this. I add that the fact of the husband making mortgage repayments is offset by the fact that he has had the sole benefit of living in the former matrimonial home.
In relation to these post-separation contributions I find that they can be assessed as equal. They are both employed and they are sharing the care of the children. The wife says that she has put in more finances and more energy into the latter but I do not consider that there is sufficient there to require a differential finding.
Conclusion on contributions to the non-superannuation assets
The husband’s counsel submitted that the contributions should be assessed at 60%/40% in the husband’s favour. The only reason for this was said to be the husband’s greater initial contribution.
The wife’s counsel submitted that the contributions should be assessed as equal.
The summary of my findings is that the husband has made greater initial contributions, the husband’s contributions during cohabitation pursuant to Section 79(4)(a) and (b) outweigh the wife’s, the wife’s contributions during cohabitation pursuant to Section 79(4)(c) are greater than the husband’s, and the post-separation contributions are equal.
In my view, in weighing up all of the contributions of the parties overall they should be assessed at 52.5%/47.5% in the husband’s favour. Although the wife has made significant and substantial contributions, the initial contribution of the husband and his marginally greater financial contributions during cohabitation, require a weighting in his favour but that weighting should not be as large as the husband suggests. As I have said before on a number of occasions, there is a danger in comparing contributions that can be quantified in money terms such as the husband’s, with contributions which cannot, such as the wife’s. There can be a tendency to discount the latter contributions by highlighting the former simply because they cannot be quantified. This has been recognised in leading cases such as Mallet & Mallet (1984) FLC 91-507 and Ferraro & Ferraro (1993) FLC 92-535, and the message is that even though they cannot be quantified in money terms great weight should still be accorded to contributions such as those of parent and homemaker.
The superannuation of the parties
The superannuation assets comprise two categories, namely the respective entitlements of the parties in accumulation funds, including the husband’s rollover amount, and the husband’s DFRDB pension.
The parties are agreed that their contributions to the former category are equal but that is not the case with the latter category. The wife says that the contributions to the pension should be assessed at 78%/22% in the husband’s favour. The husband does not suggest a different assessment of contributions but his approach is that the justice and equity of the case requires that he retain all of his pension.
The husband looked to rely on cases that have treated pensions like this as income or as a financial resource or where the court has simply exercised its discretion not to make a splitting order.
There is no doubt that the wife has contributed indirectly to the husband’s pension and that it cannot simply be treated as income (Jarman & Jarman (2006) FLC 93-289). However, whether any splitting order is made is a matter which should be considered in the context of Section 79(2) of the Act, in other words, the court cannot make an order unless it is satisfied that in all the circumstances it is just and equitable to make the order.
Thus, returning to the issue of contribution, the wife’s assessment is based on applying a formula comparing the time the husband was in the fund and the period of cohabitation prior to the husband’s discharge from the Defence Force, and then weighing this up in the context of the history of all other contributions made by the parties. She takes this approach from the case of Trott & Trott (2006) FLC 93-263.
Now, I have no difficulty with this approach given that it is consistent with the Full Court decision in Coghlan & Coghlan (2005) FLC 93-220 at paragraph 66.
On that basis there is no doubt that the husband has made the greater contribution overall to the pension given that he was in the fund for approximately 15 years before cohabitation and only 7 years during cohabitation. During cohabitation the relevant years are 1992 to 1999 and I have already addressed the respective contributions of the parties during this period as part of my earlier consideration of the parties’ contributions to the non-superannuation assets.
In my view the contributions between 1992 and 1999 can be assessed as being equal, but after factoring in the husband’s initial contributions and looking at the history of all other contributions made by the parties, I would assess the contributions of the parties to the pension at 85%/15% in the husband’s favour.
I must say though that given the absence of evidence as to the husband’s entitlements at the commencement of cohabitation and as to whether the rate of contributions to the fund altered or indeed any detail relative to the fund itself, this assessment has been an almost impossible task.
Section 75(2) of the Family Law Act
I now turn as Section 79(4)(e) of the Act dictates to the individual matters that need to be taken into account pursuant to Section 75(2). The only sub-paragraphs that are relevant here are (b), (c), (m) and (na).
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
To repeat, according to his financial statement, the husband earns $555.00 gross per week from his employment, he receives a DFRDB pension of $302.00 net per week, child support of $54.83 per month and a Centrelink payment of $49.00 per week. This totals $919.00 per week.
To also repeat, according to her financial statement the wife earns $870.00 per week from her employment, $50.00 per week tax free from the Defence Force reserve, and Centrelink benefits of $84.00 per week. This totals $1,004.00 per week.
The husband is secure in his employment and the only issue raised about his capacity to earn income is the wife’s submission that he could earn income by again joining the Defence Force Reserve. That is so, but it is clearly a lifestyle choice. It would involve after hours and weekend work and the husband has no desire to undertake that commitment. On the other hand though it is not open to the husband to plead “poverty” if his financial circumstances could be improved by him joining the Defence Force Reserve, something which he has done in the past. Thus, the husband certainly has the capacity to earn more income in this way, and I proceed on this basis.
I have included the husband’s pension in his income, but of course strictly it should be treated as “another species of asset” (Coghlan & Coghlan, supra) and that is how I propose to deal with it here.
With the wife’s employment, she said that if she moved to Sydney she would study part time and work part time, but she did not indicate what she intended to do if she stayed in Adelaide. I proceed though on the basis that she will continue in her employment in the South Australian public service. I note though that if she remains in Adelaide, Mr S will move here and they will marry. However, his employment situation is unclear and I am not in a position to make any finding as to what specific income he will bring to the household. I will refer to this issue again later in these reasons.
Proceeding on the basis that the wife will continue in her employment in Adelaide, there is a clear disparity between the respective incomes of the parties in favour of the wife.
In relation to the property of the parties there are of course the superannuation assets and the non-superannuation assets, and I have set them out in paragraph 209 above. I repeat though that that does not include all of the assets and liabilities of the parties and I have identified those in paragraphs 210.3 and 210.4 above.
As a result of my findings on contributions, the husband is entitled to more of the non-superannuation assets and more of the pension than the wife, and thus there is a disparity that needs to be taken into account. With the parties’ respective entitlements to superannuation, it is agreed that their contributions should be assessed as being equal, however the effect of that is that a distribution on that basis would require either a splitting order given that the wife’s entitlements are greater than the husband’s, or a cash adjustment. Of course, this would increase the disparity between their respective assets.
In relation to financial resources, the wife’s counsel submitted that the court should take into account the husband’s “interest” in his father’s estate as a resource. However, to repeat, there is insufficient evidence as to precisely what this entails, and I am not in a position to take it into account in any way.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The children will live with each parent on a week and week about basis in Adelaide. Thus they will each have the same level of responsibility for the children and there is no basis for any adjustment here.
(m) if either party is co-habiting with another person – the financial circumstances relating to the cohabitation;
I have touched on this in paragraph 249 above. It is of course a question of interpretation as to whether the wife and Mr S are yet “cohabiting”, but whether I take into account Mr S’s financial position here or pursuant to Section 75(2)(b) I do not consider that it matters. Whenever the wife travels to Sydney she lives with Mr S, and whenever Mr S travels to Adelaide he lives with the wife, and there is no doubt on the evidence that once the result of these proceedings is known they will not only live together but they will marry.
Although there is no certainty about Mr S’s employment situation in Adelaide, I consider that I can safely proceed on the basis that he will find some form of employment. As to his assets, Mr S has two properties in New South Wales. The investment property will need to be sold to fund the wife’s legal costs, but there is no evidence of what Mr S would do with his residential home. Presumably if he is moving to Adelaide he will sell this also. In any event, he will be able to bring an asset base to his relationship with the wife and she will benefit from that. Thus, this has to be taken into account here, although to repeat it could just as well have been taken into account under Section 75(2)(b) on the basis that what Mr S is able to bring to the relationship by way of income and property can be considered a financial resource of the wife.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage;
Because of the difference in their incomes, the wife has been paying child support to the husband. There was a very brief mention of some arrears from 2004/2005 in the husband’s evidence but there was no evidence as to how these arrears arose or what the current position is with them save and except that the common position of the parties was that the husband was not pursuing them and they were not to be brought into account in these proceedings.
As to the future, given that there will be a splitting order in relation to the husband’s pension, and the husband will thereby have less income and the wife more income, I would expect the wife’s child support liability to increase. However, I would also expect that the wife will comfortably meet this commitment. Thus, once again there is no adjustment resulting from this factor.
Conclusion on Section 75(2) factors
The husband’s counsel submitted that if the status quo remains with the children then there should be no adjustment for any Section 75(2) factors. However, he did submit that if contributions were found to be equal there should be an adjustment for Section 75(2) factors of 10% in the husband’s favour. That would be on the basis of the wife’s greater income, the benefits that Mr S will bring to their relationship, and the “lesser capital position of the husband”.
The husband also submitted that if there is a splitting order in relation to the pension then that would also justify an adjustment because it would increase the margin between their respective incomes. However, the husband’s counsel did not indicate to what category of asset he was suggesting this adjustment should be applied.
As much as I could understand the submissions of the wife’s counsel, she put that the only adjustment for Section 75(2) factors should be to the husband’s pension. She suggested for example that the wife’s greater income should result in a reduction of 4% to her entitlement on the basis of contributions.
There is no necessary justification for confining an adjustment pursuant to Section 75(2) to the pension. Indeed it is open to apply any adjustment across the board, however, in this case I consider that there should only be an adjustment in relation to the non-superannuation assets and the pension. For one thing the parties were ad idem as to the overall percentage division to be applied to the superannuation assets, namely 50%/50%. Their differences were as to whether justice and equity considerations required that there be no actual adjustment either by way of splitting order or by cash, and I deal with this later in these reasons.
I consider that an allowance of 2.5% in the husband’s favour would be justified in relation to the non-superannuation assets and the pension. The basis of that is the greater income of the wife and the benefits the wife will receive from her cohabitation with Mr S, offset to some extent by the greater percentage the husband is to have of the non-superannuation assets of the parties and of the pension.
Section 79(4)(d), (f) and (g)
Next, I am obliged to consider the effect of any proposed orders upon the earning capacity of either party (Section 79(4)(d)); any other order made under the Act affecting a party to the marriage or a child of the marriage (Section 79(4)(f)); and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or has provided for a child of the marriage (Section 79(4)(g)).
In relation to the first matter, the evidence does not indicate that the earning capacity of either party will be affected by the proposed orders.
In relation to the second and third matters, I have already taken them into account and there is nothing further to be addressed.
Conclusion
The non-superannuation assets of the parties should be divided 55%/45% in the husband’s favour, the parties’ entitlements to the superannuation assets (excluding the pension) should be divided equally in the husband’s favour, and the parties’ respective entitlements in the husband’s pension should be assessed at 87.5%/12.5% in the husband’s favour.
Just and equitable
Pursuant to Section 79(2) of the Act, the court cannot make an order unless the court is satisfied that in all the circumstances it is “just and equitable” to make the order. To assess that I need to stand back and consider the practical effect of my proposed orders (Waters & Jurek (1995) FLC 92-635; JEL and DDF (2001) FLC 93-075; Phillips & Phillips (2002) FLC 93-184).
The net non-superannuation asset pool comprises a monetary equivalent of $166,000.00. The superannuation assets (apart from the pension) total $64,074.00, and the DFRDB pension is valued at $350,000.00 (in round figures), but in reality comprises a fortnightly payment to the husband of $604.00 (net).
Both parties submitted that given the size of the non-superannuation asset pool it was unrealistic to include the pension at its lump sum value, and I agree with that approach. However, consistent with my earlier comments it is not open to treat the pension as income or as a financial resource. It is “a species of asset” to which both parties have contributed and it is clearly distinguishable from the income earnt by the parties from their employment (Jarman & Jarman, supra). Further, given it’s nature I do not consider that it cannot be treated as a financial resource (Trott & Trott, supra).
The effect of my findings on contributions and Section 75(2) factors is that the husband is entitled to net non-superannuation assets to the value of $91,300.00, and the wife is entitled to net non-superannuation assets to the value of $74,700.00.
The husband currently has the benefit of net non-superannuation assets totalling $152,000.00 calculated as follows:
Assets
House property at G $290,000.00
Capri motor vehicle $2,000.00
TOTAL $292,000.00Liabilities
Mortgage secured over the title to the G property $140,000.00
NET $152,000.00The wife currently has the benefit of net non-superannuation assets totalling $14,000.00 calculated as follows:
Assets
Time share in resort in New South Wales $6,000.00
Ford Explorer motor vehicle $8,000.00
TOTAL $14,000.00Thus, if the parties each retain these assets and liabilities the husband would have to pay to the wife the sum of $60,700.00.
With the parties’ entitlements to superannuation (excluding the pension) the effect of my findings on contributions and Section 75(2) factors would be a splitting order in relation to the wife’s superannuation entitlements. The order would be an order pursuant Section 90MT(1)(a) with a base amount allocated to the husband of $4,355.00 (to the nearest dollar). In addition, the husband would retain his superannuation entitlements.
With the husband’s pension the effect of my findings on contributions and Section 75(2) factors would be a splitting order pursuant to Section 90MT(1)(b) providing for the wife to be entitled to be paid 12.5% of each splittable payment.
To return to the respective superannuation entitlements of the parties (not including the pension) the husband’s counsel proposed that each party retain their entitlements with a cash adjustment being made rather than a splitting order. This would result in a payment by the wife to the husband of $4,355.00 which obviously would be set off against the amount of $60,700.00 that the husband is required to pay to the wife in relation to the non-superannuation assets. The wife though says that there should be no cash adjustment and indeed that there should be no splitting order in relation to this superannuation. She submits that it would be just and equitable to simply leave each party with their respective superannuation entitlements (not including the pension). Her reason for that is the small amount involved compared with the benefit that the husband has in retaining the majority of his pension.
I also note the wife’s counsel’s submission that if I do not do what the wife proposes here then the wife’s case changes as to the assessment of the respective contributions of the parties to their entitlements to superannuation. She submits that the wife has contributed more because the value of her superannuation entitlement is greater than the husband’s. However, apart from the difficulty of back-tracking like that, this overlooks that it is not only the financial contributions to such funds that is relevant but that even if one only considers that aspect the husband has made a greater contribution to his rollover fund than the wife because he was a member of the fund from which he received the rollover amount for a number of years prior to marriage. Thus I do not accept the wife’s counsel’s submissions in this regard.
However, I do agree with the husband’s counsel that it makes sense to require the wife to make a cash payment to the husband rather than make a splitting order in relation to the superannuation entitlements, and particularly given the relatively small amounts involved.
With the husband’s pension, the husband’s counsel submitted that it would be just and equitable if there was no splitting order and the husband retained his pension. This is put on the basis that to take income away from the husband will prejudice the children, and on a comparison of the respective incomes of the parties the wife already receives more than the husband.
However, this submission is based on the false premise that the pension is nothing more than income. Further, it fails to acknowledge that if the wife’s income is increased by her receiving some of the pension that would result in not only an adjustment pursuant to Section 75(2) of the Act but it could lead to a greater child support liability on the part of the wife. Thus, I reject the husband’s submissions in this regard.
Overall, the husband’s counsel submitted that the order should be framed to permit the husband to retain the former matrimonial home for the benefit of the children. In money terms the husband’s evidence is that he can borrow $230,000.00 from the bank on the basis of all of his current income including the pension. There is $140,000.00 owing in respect to the mortgage, and the husband has to pay out his loan for legal fees in the sum of $40,000.00. Thus that leaves $50,000.00 to pay out the wife. As can be seen from the calculations above, without any further adjustment the husband has to pay to the wife the sum of $56,345.00.
In my view there is no basis for favouring the husband by adjusting the final result in the way that he seeks. The wife too has a responsibility to care for and support the children including providing them with stable and secure accommodation. She will need all of her entitlement under the proposed orders to do that. However, given the relatively closeness of the figures, what I will do is give the husband the option of retaining the former matrimonial home, but if he cannot then it will have to be sold and the proceeds divided appropriately between the parties.
The wife seeks to add to the amount the husband pays her one half of the sum of $1,500.00 the husband redrew from the mortgage, $1,160.00 being one half of the cost of Dr B’s first report, $825.00 being one half of the husband’s motor vehicle insurance premium, and $633.00 being one half of the cost of sports fees and uniforms. However, there was no evidence presented by the wife of the latter three alleged debts, and thus the only one that I am prepared to accept is the first one. That was deposed to in the wife’s affidavit of evidence in chief and was not responded to by the husband. Thus including the amount of $750.00 will increase the amount to be paid by the husband to the wife to $57,095.00.
Bringing this all together, and on the basis of the husband retaining the former matrimonial home, he will also have his Ford Capri motor vehicle, he will have his furniture and household effects, he will have sole responsibility for the mortgage secured over the title to the former matrimonial home, he will have to pay out his litigation loan, and he will have to pay to the wife the sum of $57,095.00. There will also be a splitting order in relation to the husband’s pension providing for the wife to receive 12.5% of each splittable payment, namely approximately $40.00 per week.
In relation to the wife, she of course will receive the payment of $57,095.00 from the husband, she will retain the time share in the resort in New South Wales and her Ford Explorer motor vehicle, her furniture and household effects and she will receive approximately $40.00 per week by way of the superannuation splitting payment.
Of course, if the husband is not able to pay out the wife then the home will have to be sold and the net proceeds divided 55%/45% in favour of the husband, subject to the husband receiving from the wife’s share the sum of $4,355.00 referred to above, the sum of $6,800.00 being 55% of the value of the other non-superannuation assets after allowing for the value of the asset retained by the husband, less the sum of $750.00 also referred to above.
Having considered the result and revisited the history of the relationship between the parties, their respective contributions and the relevant Section 75(2) factors, I am satisfied that my proposed orders are just and equitable.
Orders
The orders that I propose to make include a splitting order in relation to the husband’s DFRDB pension. However, the trustee of the fund has not yet been advised of the terms of the splitting order, and certainly has not been accorded procedural fairness in relation to the same. Thus, the trustee must now be provided with a copy of the proposed splitting order and be given the opportunity to be heard in relation to the same. Accordingly I propose to adjourn this matter for a period just beyond 28 days for this purpose. The order that I propose to make at that time subject to any submission that may be made by the trustee in relation to the proposed splitting order are set out at the commencement of these reasons.
I certify that the preceding
289 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 16th day of August 2007.
……………………………………….
Associate
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Statutory Construction
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Costs
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