Tyers and Tyers (No.2)
[2017] FCCA 3039
•12 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TYERS & TYERS (No.2) | [2017] FCCA 3039 |
| Catchwords: FAMILY LAW – Applications for parenting and property adjustment orders – best interests of children – assessment of contributions – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79. |
| Cases cited: Marriage of Harris (1991) 104 FLR 458 Marriage of W (1980) 6 Fam LR 538 |
| Applicant: | MR TYERS |
| Respondent: | MS TYERS |
| File Number: | PAC 5142 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 4 – 6 September 2017 |
| Date of Last Submission: | 13 October 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 12 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | John Spence & Associates |
| Respondent: | Self-represented |
ORDERS
That the children [X] (born (omitted) 2007) and [Y] (born (omitted) 2010) live with the mother.
That the mother have sole parental responsibility for the children. Prior to making any major long term decision for the children, the mother shall consult the father in writing.
That the mother consult the father on major decisions affecting the long-term care and welfare of the children.
That the children spend time with the father:
(a)Each alternate week from the conclusion of school Thursday to the commencement of school Monday, with changeovers to be at the children’s schools.
(b)For half of the first, second, and third term school holidays, being the second half of the school holiday period commencing the second Saturday of the holidays at 9.00am and concluding at 5.00pm on the Sunday prior to the commencement of the next term.
(c)For half of the December/January school holiday being, being the first half in odd numbered years and the second half in even numbered years. The school holiday period to commence on the first Saturday at 9.00am and conclude at 5.00pm on Sunday prior to the commencement of school for the purpose of calculating the period each parent spends with the children.
(d)On Father’s Day, if not already spending time with the father from 5.00PM on the Saturday preceding Father’s Day to the commencement of school on Monday.
(e)On Christmas Day from 10.00am Christmas Eve (24 December) to 2.00pm Christmas Day in even numbered years and from 2.00pm Christmas day to 5.00pm Boxing Day in odd numbered years.
(f)During Orthodox Easter from 10.00AM Good Friday to 5.00PM Easter Sunday.
(g)By telephone each Tuesday, between 5.30PM to 6.00PM. The father to initiate the telephone call.
The children’s time with the father be suspended:
(a)On Mother’s Day weekend if not already spending time with the mother from 5.00PM Saturday preceding Mother’s Day to the commencement of school Monday.
(b)On Christmas Eve from 10.00AM to 2.00PM Christmas Day in odd numbered years and from 2.00PM Christmas Day to 5.00PM Boxing Day in even numbered years.
(c)During non-Orthodox Easter from 10.00AM Good Friday to 5.00pm Easter Sunday.
Should Orthodox Easter period and non-Orthodox Easter period coincide, then the parents shall alternate the period on each occasion with the first and each alternate occasion with the mother and the second and each alternate time with the father in accordance with these Orders.
For the purposes of implementing these Orders, unless otherwise stated, the father shall collect the children from the mother’s residence and return the children to the mother’s residence.
For the purposes of these Orders, the father’s time with the children during the school term commence on the second Thursday following the commencement of term.
In relation to extra-curricular activities, the mother will notify the father by email as soon as is reasonably practicable of the activities the children are participating in during the time that the children are spending time with the father and:
(a)The father will take the children to their activities during the time that they are in his care.
(b)The father will take the children to any birthday parties to which the children may have been invited.
The mother will sign such documents and do such things as may be necessary to authorise the children’s schools to forward to the father, copies of the children’s school reports, and any such other information that may relate to the activities in which the children are participating whilst at school.
During the school holiday periods the parent with whom the children are not residing may telephone the children each Tuesday between 5.30pm and 6.00pm.
Neither party shall denigrate the other party in the presence or hearing of the children or allow third parties to denigrate the other parent in the presence of hearing of the children.
Neither party shall physically discipline either of the children.
Each party shall provide the other party with details of their current residential address and contact telephone number and advise the other party within 48 hours of any change of residential address or telephone contact number.
Each party will advise the other party of any medical emergency involving the child or children as soon as practicable, including the name of the treating health professional and medication if any prescribed.
All previous interim orders relating to property are discharged.
Within 3 months the wife shall pay to the husband the sum of $7,522 (“the sum”).
As against the husband, the wife is declared the sole owner of her interest in the property known as Property A, more fully described has (omitted) (“Property A”).
As against the wife, the husband is declared the sole owner of his interest in the property known as Property B, more fully described as (omitted) (“Property B”).
As against the husband, the wife is declared the sole owner of her superannuation entitlements.
As against the wife, the husband is declared the sole owner of his superannuation entitlements.
As against the wife, the husband is declared the sole owner of his items of personalty and his bank accounts, in his possession or control, including but not limited to his personal items, tools and equipment presently located in the garage at Property A.
As against the husband, the wife is declared the sole owner of her items of personalty and her bank accounts in her possession or control.
The husband shall give 48 hours written notice to the wife of the day and time in which he will cause his collection of all his personal items, tools and equipment presently located in the garage at Property A to be collected, provided however, that such collection shall occur within 21 days of the husband receiving the above payment of $7,522 from the wife. All items are to be removed on the one day on which the husband arranges the items to be collected.
In default of the payment pursuant to order 16 above, the wife do all things to list for sale and sell by public auction Property A and from the proceeds of sale pay to the husband the sum of $7,522, together with any interest as calculator pursuant to the Rules, from the date of the default until payment.
Pursuant to section 106A of the Family Law Act 1975, in the event that either party fails or neglects to execute any deed or instrument, the Registrar of the Court is appointed to execute such deed or instrument and to do all acts and things necessary to give validity and operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Tyers & Tyers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5142 of 2014
| MR TYERS |
Applicant
And
| MS TYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of property and parenting proceedings between the husband (hereafter “the husband”) born (omitted) 1978, now aged 39 years, and the wife (hereafter “the wife”) born (omitted) 1979, now aged 38 years.
The children of the relationship are [X] born (omitted) 2007, and [Y] born (omitted) 2010. They presently live with the wife.
The husband presently lives in the residence of his new partner, Ms U, at (omitted), being a suburb situated approximately (omitted) of Town A, and being about a (omitted) drive from Town A. Ms U has three daughters who live in a week about arrangement with her and Ms U’s former partner. Ms U works (employer and location omitted).
The husband presently spends, on a fortnightly basis, time with the children from Friday after school to Sunday afternoon at 6pm. On the Sunday the children are returned from Town A to Sydney.
The wife’s occupation is (occupation omitted), and the husband’s occupation is qualified (occupation omitted).
At the commencement of the relationship, the wife had a property in her sole name at Property A (the former matrimonial home), and in which the parties and the children of the relationship lived during the course of the relationship, and the husband owned an investment property at Property B (the investment property).
Parties’ proposals
The husband ultimately sought orders as set out in his minute of order, Exhibit K.
He sought parenting orders, inter alia, that the parties have equal shared parental responsibility for the children; that if the husband lived within 45 minutes of the Property A property, the children live with the parties in an equal time shared care arrangement; and other ancillary proposed orders.
He sought property orders, inter alia, that the wife pay to the husband the sum of $160,000; the parties each retain personal property, and superannuation, presently in their own name. The husband did not seek to disturb the ownership of the former matrimonial home, or the investment property.
The wife ultimately sought parenting orders as set out in Exhibit I (with some minor amendments); that the children live with the mother; the mother have sole parental responsibility for the children; the children spend time with the husband each alternate week from the conclusion of school Thursday to the commencement of school Monday, with changeovers to be at school; the parties spend time with the children equally during the school holidays; and other ancillary orders.
The wife ultimately sought property orders as set out in her document headed “Wife’s proposed minute of financial orders”; Exhibit K.
The husband, in a one page document, responded to the wife’s proposed parenting and property orders; Exhibit L.
Material relied upon
The husband relied upon the following documents:
a)His trial Affidavit filed 30 August 2017.
(At the outset of the Final Hearing, the husband clearly informed the Court that he wished to rely upon this Affidavit alone, and did not wish to rely upon his earlier Affidavit filed 8 August 2017. During final oral submissions on day 3 of the Final Hearing, the husband sought to rely upon the annexed documents to that earlier Affidavit, which was opposed by the wife. The wife submitted to the Court that had the husband sought to rely upon such annexed documents at the commencement of the trial, she would have at least objected to annexure 13 being jewellery valuations and certificates.
The Court can indicate that had such objection been made it would likely have been upheld as such valuations and certificates would have needed to have been supported by a valuation Affidavit by a qualified jewellery valuer. The Court did not permit the husband to rely upon those documents by reason of the Final Hearing of the proceedings having proceeded upon the basis of the husband’s reliance upon his later trial Affidavit filed 30 August 2017 and no other Affidavit. The Court should state that even if the husband’s annexed documents to his earlier Affidavit had been admitted into evidence, the Court would not have reached any different conclusion other than as stated in these Reasons for Judgment.)
There were certain documents tendered in evidence, including the parties’ ultimate proposals together with responses; Exhibits A to L.
Both parties were cross-examined. Further, the husband’s new partner, Ms U, and his friend Mr I, were cross-examined.
Evidence
The husband, having appeared without legal representation at the Final Hearing of these proceedings, conducted a quite limited cross examination of the wife. Prior to commencing his cross examination, the Court had reminded him of his obligation, where there was a conflict in the evidence between the parties, to confront the wife in cross examination with his version of the disputed events, failing which the Court might more readily accept the wife’s evidence.
Significant areas of conflict in the Affidavit evidence of the parties, in relation to both parenting and property related issues, were not cross-examined upon by the husband when conducting his limited cross examination of the wife. For example, there was no significant cross examination by the husband of the wife in relation to alleged family violence.
Cross examination by the husband in relation to property issues was very limited; there was some cross examination in relation to the wife’s drawdown of an alleged $72,000 from the home loan for the former matrimonial home (item 11 in the Balance Sheet, Exhibit H), and there was some cross examination in relation to the husband’s contributions towards mortgage repayments, utilities and other living expenses during the relationship, together with some further limited cross examination on property issues.
The wife was an impressive witness.
Ultimately, the Court had concerns as to the reliability of the husband’s evidence. An example was his belated evidence in his own re-examination as to his alleged unsuccessful attempts to obtain employment as a (occupation omitted) post separation. This belated evidence was disingenuous, by reference to his oral evidence in cross examination that he had made no attempt to find paid employment post-separation, his oral evidence in cross examination that he had ceased working as an employed (occupation omitted) at (omitted) in 2014 before the separation “due to the long hours”, and his admission to the family report writer in July 2016 that he did not want to work for someone else and so he had not sought other employment in the meantime.
Another example was the husband’s oral evidence relating to the incident in 2010 when he became angry and started breaking the walls of the home. The husband stated that his punching of the walls had occurred down the corridor some 4 to 5 metres from where the children were (positioned). Yet the police records, annexed to the husband’s own trial affidavit, annexure H, relating to this incident on 13 August 2010, records, inter alia, the husband continuing to punch the walls damaging the gyprock, with the parties’ daughter walking up to the mother saying, “Look mummy there’s holes. Daddy punching holes.”
Often the husband was combative and defensive in cross examination, and declined to make relevant concessions.
Apart from where the Court has made any express finding of fact to the contrary, where there is any conflict between the parties’ evidence, the Court prefers the wife’s evidence.
The parties married in November 2005. They separated on 22 October 2014.
The wife purchased the former matrimonial home in about March 1998 for the sum of $230,000. She contributed $52,000 towards the purchase price and the balance was funded by a bank loan from (bank omitted). The wife rented the former matrimonial home from 1998 to 2005. During this time the wife resided with her parents at (omitted).
In 2002 the wife, with the assistance of her family, renovated the matrimonial home for the cost of about $68,000. She increased the home loan by about $30,000 and her parents provided the balance of funds for the renovations.
During 2005, just prior to the marriage, the parties decided to renovate the former matrimonial home jointly. These renovations were a joint effort between the parties and their respective husbands. The renovations cost about $50,000; these funds were provided from the wife’s savings of about $15,000 and the balance was charged to each of the parties’ credit cards. The renovations included a new fence, kitchen, bathroom, painting and sanding and polishing the floorboards. Following the renovations, and as at the date of the marriage, the former matrimonial home was valued at $445,000. Following the marriage, the parties resided in the former matrimonial home.
The wife, at the time of the marriage, had a car valued at about $14,000, and superannuation of about $23,000.
The husband, at the time of the marriage, besides owning the investment property, had a trail bike and a utility vehicle, tools of trade to the value of about $12,750, and some personal effects.
The husband’s investment property, at a time of the marriage, was valued at about $215,000, with a mortgage of $37,800. Prior to the marriage, the husband spent 8 months living in and making this property habitable. During the marriage, the investment property was rented and the rent covered the loan repayments. The wife did not receive any financial benefit from the investment property during the marriage.
At the time of the marriage the (bank omitted) loan debt on the former matrimonial home was about $215,000 (compared to $193,100 in Exhibit J).
When the parties married, they received certain wedding gifts including cash. The cash, comprising about $38,000, was applied by the parties to repay the credit card debt for the renovations.
From the date of the marriage until about June 2007, the husband worked on and off as a labourer. The wife worked on an irregular basis as a sales consultant.
In February 2007, [X] was born. The mother took seven months maternity leave. She was made redundant in her sales consultant position, and received a payout of $10,000 which was applied to the home loan. She resumed work later in 2007, working three days a week from 9AM to 5PM.
In 2008 the husband refinanced his loan on the investment property through the (omitted) Bank. He had a tax liability for the taxation years 2005, 2006, and 2007, totalling about $24,766 including accounting fees. He paid the outstanding tax liability from this loan facility.
In March 2010 [Y] was born. The mother took about 10 months maternity leave.
During the marriage, the husband perpetrated family violence against the wife. In May 2007 the parties had an argument in the car. The husband threw his mobile phone and broke the wife’s rear view mirror. He kicked the window screen of the car. In May 2010 the husband was verbally abusive to the mother in front of the children. In about August 2010 the wife told the husband that she didn’t want to be with him. He became angry and started to break the plasterboard walls of the home. The children were in the near vicinity. The police were called. They attended the former matrimonial home and the husband was arrested. An Apprehended Domestic Violence Order was taken out by the police to protect the children and the mother. The parties reconciled in about November 2010, the husband having moved out to live with his parents for a brief period. In October 2011 an incident occurred when the husband abused the wife in the presence of the children.
In about 2010 the husband joined Company A, as a (occupation omitted). He worked for this company and he had an income plus drawings.
From 2007 to December 2012, the husband spent money on activities relating to hobbies that he was participating in, often using the Paypal facility to effect these purchases. One activity was learning how to fly a light plane. He purchased items for his hobbies. The wife was aware that he was purchasing items. He spent a significant amount of money in relation to these purchases. It is unclear how much was spent by the husband during this period and the Court is not satisfied that the husband’s expenditure on his hobbies during the relationship amounted to wastage. Despite this expenditure, the husband continued to pay the mortgage and the bills when he was working.
The wife herself purchased items through the Paypal facility, including purchasing lingerie, lipstick, and personalised doormats.
From about October 2011 to separation in about October 2014, the parties lived separate lives, although they were living in the former matrimonial home. The wife was scared of questioning the husband during this period and would agree with the husband to keep the peace.
In 2013 the husband withdrew $120,000 from Company A. He paid $78,000 of this amount into the former matrimonial home mortgage loan account. He also paid some monies from this withdrawal for household bills.
Company A was later in 2014 the subject of (omitted) proceedings in the (court omitted). A sum of about $15,263 was paid by the husband for legal fees from the above withdrawal of $120,000.
During the relationship, the husband contributed his earnings towards the mortgage on the former matrimonial home and paid utility and other household bills. The wife, when working in part-time employment during the marriage, contributed her earnings towards household needs and the children’s expenses. However, in the first 2 years of the marriage, the husband was struggling in his work and the wife paid a preponderance of the mortgage repayments and household bills. During the parties’ separation in 2010 the wife’s family was paying the mortgage, household bills and needs, with the wife paying for the food, childcare and other day to day expenses. And during the last 3 years of the relationship the wife bore the substantial burden of meeting household bills and expenses.
In early 2014, the husband established a small business named Company B to service (omitted). The husband’s tools of trade utilised in this business remained in the former matrimonial home post separation. This business has not operated post separation (and see the court’s discussion in relation to the tools of trade later).
The wife has been the primary carer of the children from birth to date.
The parties separated on 22 October 2014. Initially the wife and children vacated the former matrimonial home, but a short time later returned to live there, with the husband vacating those premises on about 14 November 2014. The wife and children have remained living there to date.
At separation in October 2014, and in November 2014, the wife drew down a total of about $134,000 from the former matrimonial home mortgage loan account. At this time she had no savings. She was not receiving child support from the husband. She then redeposited $67,000 to this account in late October 2014. She went on to spend about $67,000 over a period of time. She spent about $25,000 for her legal fees relating to these proceedings. The balance of about $42,000 was spent on, inter alia, living expenses for herself and the children, including household bills in existence at the date of separation. (See discussion under Contributions).
Since separation, the wife has received six payments by way of child support from the husband, in the sum of about $1,946. The Child Support Assessment of 25 July 2017 states that the husband is to pay $2,780 to the wife for the support of the children annually. The husband’s provisional adjusted taxable income is $5,603. The husband has a current outstanding child support amount of about $2,300. Over the last 3 to 4 months, the husband has paid child support of only $20 per month.
After the separation, the wife attended to pay the mortgage on the former matrimonial home, the children’s school fees, and the children’s extracurricular activities.
On 10 November 2014, this Court made an order by consent for the wife to have exclusive occupation of the former matrimonial home. By consent, the children would live with the mother. By consent, the children would spend time with the husband each alternate weekend from 9AM Saturday to 5PM Sunday, with such time to be supervised by the paternal grandmother. Changeover was to occur by the husband in the company of the paternal grandmother. It was noted that the husband’s property was to remain stored in the garage of the former matrimonial home, pending further order, or written agreement of the parties.
On 8 May 2015, by consent, an interim injunction was placed by the Court on the husband restraining him from dealing with the investment property or further encumbering it.
Shortly after the separation, there was an argument between the parties at the former matrimonial home. The wife was shaken by the incident. The wife called the police.
The wife obtained an Apprehended Violence Order against the husband in the Local Court in about mid-December 2015.
At separation, certain items relevant to the husband’s business remained at the former matrimonial home; two cars, tools of trade, and further items stored by the husband. In relation to the tools and other items, the wife wrote to the husband’s former solicitors, on 29 July 2015, 12 November 2015, 17 December 2015, and 24 June 2016, requesting the husband to remove such items from the former matrimonial home. In the letter from the wife to the husband’s former solicitors dated 24 June 2016, she states, inter alia
Please confirm with your client when I can expect to have his possessions removed from my garage. I cannot stress enough the number of times I had pleaded with your client to do this.
On 28 October 2015, the husband’s former solicitors wrote to the wife stating, inter alia, that the husband was
unable to work and subsequently not in a position to make financial contributions precisely because of his inability to relocate. Relocation would require our client to expend funds which he currently does not have.
On 21 December 2015, the husband’s former solicitors wrote to the wife stating, inter alia, that,
In regards to the vehicles, property and other effects of our client’s located at the matrimonial home, we draw your attention to the family law orders wherein it is stated that the property is to remain in the home until such time as settlement has occurred. Additionally, we draw your attention to the injunction which as at this stage remains in place on our client’s property, which impacts his financial ability to facilitate the removal of same, in conjunction with the ADVO which prevents him attending the matrimonial home.”
On 1 February 2016 the husband’s former solicitors wrote to the wife stating, inter-alia, that, “our client remains, regrettably, unemployed and unable to direct his company due to the injunction in place.”
The husband’s former solicitors wrote to the wife on 9 February 2017 stating, inter alia,
We remind you that the aggregate effect of the orders are such that our client is unable to sell his property (the investment property), however, he was permitted to further encumber the property with a further mortgage of $100,000. We are instructed that in total, an amount of about $200,000 has been mortgaged against (the investment property). The further mortgage of $100,000 was in part applied to our clients legal costs, as well as his day-to-day costs of living.
The letter further states
Moreover, it is our understanding that our client has not collected his work tools and equipment from (the former matrimonial home), for the reason that he would have no place to relocate those items. Consequently, he is unable to resume his former self-employment, which has been his predominant form of support for much of his working life….Our client is therefore left with few alternatives but to affect the sale of (the investment property) so that he may meet his above-mentioned liabilities, his legal costs, living expenses, and so that he may relocate and resume his work activities.
The husband asserts that relocation of his tools of trade and other gear in the garage of the former matrimonial home will require a large truck to complete possibly two trips, with at least two people to load, over an eight hour period. His toolbox weighs about 300 kg.
On 14 March 2016, this Court made an order permitting the husband to further encumber the investment property for an amount of $100,000. The husband drew down $100,000 from the mortgage loan on the investment property, and paid, according to the husband, “my legal fees (I have paid approximately $140,000 to date) furniture, repairs to my vehicles, including registration et cetera, living expenses for the children and I.” There is no breakdown given by the husband in his trial affidavit as to how the $100,000 was spent, apart from him spending about $2,900 on repairs to 2 vehicles, including a towing fee (and see the discussion below under Contributions).
The husband has skills in (occupation omitted)(omitted). The husband is licenced to be a (occupation omitted) only.
The wife has been making the mortgage repayments on the former matrimonial home since the parties’ separation in October 2014.
Presently, the children live with the wife. They spend time with the husband every Wednesday from after school. He then drops them off at 7PM. He then spends time with the children every fortnight from Friday after school and returns the children from Town A to Sydney on Sunday at 6PM.
The wife is happy for the husband to continue calling the children every second day however she thinks it would be better if the phone calls were limited to one call on these days.
The wife elaborated upon her proposal for the children to spend time with the husband each fortnight from after school Thursday to the commencement of school Monday. She stated her concern in relation to the children’s travel to and from school and attendance at their afterschool activities if spending more extensive time with the husband. She referred to the child [X] attending sport omitted) on Monday and Thursday afternoons in (omitted). The child [Y] has afterschool sport at (omitted) on Monday afternoons. She stated that she needed to continue in paid employment, and that she had to keep her employer “on-side” inferring that certainty of childcare arrangements was important.
The wife would be comfortable in driving for up to 30 minutes to affect changeovers for the children when spending time with the husband, but believes that a 45 minute drive is too far. She would agree to travelling a distance of between 13 to 15 kilometres, but not 20 kilometres.
As far as the wife is concerned, the parties do not communicate well and have not communicated well for some time. The wife struggles to communicate amicably with the husband. The wife does not feel comfortable making requests of the husband. The wife finds the husband intimidating. Whilst the husband sends email correspondence to the wife and the wife responds to such emails, in relation to parenting issues, the parties do not reach decisions.
After the conclusion of these proceedings, the husband intends to move from (omitted) to live initially with the paternal grandparents in their home at (omitted) in Sydney so that he can spend more time with the children. He would thereafter seek to find suitable accommodation to live in, and in this context, he has researched possibly living in suburbs such as (omitted). He also wishes to re-establish his former business Company B. He does not know whether Ms U and her children will move with him to Sydney. The husband stated that his relationship with Ms U is a permanent relationship. If Ms U and her children remained living in (omitted), the husband would want to spend time with them.
Ms U gave oral evidence that she has not discussed with her former partner the possibility of moving to Sydney with her children. In any event, Ms U stated that her eldest child is doing the Higher School Certificate at her school in the Town A area in 2018, so she would not be in a position to move to Sydney until at least the end of 2018.
The husband’s friend, Mr I gave evidence. In cross examination, he stated that he has been very unwell with severe tonsillitis and was not thinking properly. His recollection of when the husband had last attended his property at (omitted) was poor. Mr I’s Affidavit states that he is a close friend of the husband. His Affidavit asserts that about two years ago he loaned the husband $2,000. At that time the husband had told him he was not working. His Affidavit further asserts that about six months ago the husband contacted him about a loan that the husband owed. On that occasion Mr I asserts that he loaned the husband $6,000 so that the husband could repay this loan.
Mr I refers to the husband’s wedding being in about November 2014 which is incorrect. In any event he refers to the former matrimonial home, prior to the parties wedding, being the subject of renovations. He states that this time, “it was a wreck; I could not have lived in it.” This statement is not particularised, nor elaborated upon, and the Court does not accept this evidence.
The statements by Mr I as to the former matrimonial home being “gutted” at the time of the renovations is inconsistent with the extent of renovations outlined by the wife in her trial Affidavit, and the Court notes that the wife was not cross-examined by the husband as to Mr I’s assertions in this context. The Court does not accept this evidence of Mr I. There was brief cross examination by the husband of the wife relating to her involvement in the renovations of the former matrimonial home, with the wife confirming her involvement in all renovations, and the Court accepts her evidence.
Mr I confirmed in cross examination that what was in his Affidavit was what the husband had told him and he believed it to be the truth. Unfortunately, Mr I was not a particularly impressive witness, occasionally failing to answer a question posed to him in cross examination directly, and where his evidence is in conflict with the wife’s, the Court prefers the wife’s evidence.
Family Report
The family report writer interviewed the parties, other relevant persons, and the children in July 2016.
The family report writer noted that on 10 November 2014, consent orders were made in the Court for the children to live with the wife and spend time with the husband each alternate weekend from 9AM Saturday to 5PM Sunday supervised by the paternal grandmother.
In March 2015, the family report writer noted that the wife had made a unilateral decision to cease the children’s time with the husband. Then on 8 May 2015 the Court made orders, inter alia, that the children spend unsupervised time with the husband on alternate weekends from 9AM Saturday to 5PM Sunday. The parties told the family report writer at the interviews with her, that these orders were being facilitated presently, together with an informal agreement for the children spending one week block period with the husband during the most recent school holidays.
The wife told the family report writer that she was working as a (occupation omitted) for 4 days per week from 9:30AM to 2:30PM. She also receives benefits from Centrelink.
The child [X] was in Year 4 (Year 5 in 2017) and [Y] in Year 1 (Year 2 in 2017).
The husband told the family report writer that he was proposing an equal time week about arrangement in relation to the children. He told the family report writer that, if his equal time proposal was not accepted by the Court, he would seek to have the children for 4 to 5 nights per fortnight. He said he wanted this time and a block period, and for it to include some weekend and weekday time.
The husband told the family report writer that he wanted all direct communication between himself and the wife to be in writing following the expiration of the Apprehended Violence Order. He suggested that this occur via text message or email.
The husband told the family report writer that he had completed parenting, parenting after separation, and parenting in step-family courses through Relationships Australia and Unifam.
The wife told the family report writer that the current half-hour telephone calls between the children and the husband were too long for the children, and they quickly lost interest.
The wife told the family report writer that she and the husband only presently communicated via their solicitors due to the existing Apprehended Violence Order. She said that prior to this order, the husband had bombarded her with emails. She told the family report writer that she asked his solicitor to inform the husband to cease this behaviour, but this did not occur. She stated that the husband had been patronising to her regarding her parenting in these emails. She stated that these emails supported her Apprehended Violence Order application. The wife told the family report writer that she knew that she and the husband would need to directly communicate in the future, but she did not want to be abused by him.
The wife told the family report writer that she was never physically or verbally abusive to the husband because she was too frightened of him, having previously referred to family violence incidents perpetrated by the husband against her.
The wife told the family report writer that she had applied for the Apprehended Violence Order in 2015 following a telephone call between the husband and herself. She stated that she felt frightened after this telephone call and worried for her safety.
The child [X] (then aged 9 years and 5 months) spoke positively of her relationships with the parents. She stated that if the husband lived in a bigger house close by to her house and school, then she would like to live half the time with him. She said that, if this was the case, she thought the wife would be happy with this proposal.
The child [Y] (then aged 6 years and 4 months) also spoke positively of the parents. He said he would like to spend a little bit more time with the husband.
The children were observed to be physically affectionate towards the husband during the observation session. The children similarly had a positive observation session with the wife.
The family report writer, under the heading “Evaluation”, stated, inter alia, that the children both reported that they wanted to spend additional time with the husband, because they felt that the current amount of time was inadequate. She stated that whilst the children have been exposed to significant parental conflict, this did not appear to have impacted significantly on their views on spending time with the husband. She stated that it appeared that the children’s views were based on what was assessed to be an established and positive relationship with the parents, including the husband’s new partner. However, the family report writer stated that given the children’s age and developmental stage that their views could only be given limited weight.
The family report writer observed that the husband had appeared to have appropriately sought treatment for depression around 2010. There were no indications of current mental health problems for the husband identified in her assessment. She noted that the husband was currently engaged with a counsellor.
The family report writer stated that the parties had shown an inability to communicate effectively regarding the children. They had also continued to involve the children in the parental conflict in a way that was developmentally inappropriate. The family report writer suggested that this had likely already caused emotional and psychological harm to the children, and the harm will likely be increased should the children continue to be exposed to this parental conflict in the future. She noted that exposure to parental conflict can also impact on the children’s relationships with one or both of the parents, and on their ability to engage in meaningful and healthy relationships as they move into adulthood.
The family report writer stated that due to the continuing parental conflict, and poor communication, it was suggested that a shared care arrangement for the children would be inappropriate, and likely to lead to them being exposed to additional conflict. It was suggested by the family report writer instead that the husband’s alternative application that the children spend 4 to 5 nights per fortnight in a block period with him, could be adopted should he reside close to the children’s school. It was recommended that this time encompass both weekday, and weekend time, plus school holiday time, and significant events for the children and the husband. It was recommended that any changeovers, where possible, occur at the children’s school to reduce the possibility for parental conflict.
The family report writer stated that in matters where there is significant parental conflict, shared parental responsibility is not recommended because it is likely to expose the children to additional conflict in the future. In this case, the family report writer suggested that the wife, as the recommended primary carer, hold sole parental responsibility for the children. However this should not exclude the husband from being able to access information directly from the children’s schools, and health professionals regarding the children’s progress. An order could be made for the wife to provide the husband with any details of health professional appointments the children attend if considered appropriate by the Court.
In relation to telephone calls between the children and the non “live with” parent, the family report writer stated, inter alia, that by reason of previous parental conflict arising out of telephone contacts, it was recommended that an order be made for 15 minute telephone calls between the children and the non “live with” parent, to occur every second day.
The family report writer stated that the husband’s decision not to seek employment, despite him appearing to have the skills and ability to do so, could be considered a failure on his behalf to fulfil his obligation to maintain the children.
The family report writer gave oral evidence consistent with the family report.
The family report writer stated that an equal time arrangement needs good communication between the parents so that the children have the emotional freedom to move seamlessly between the two households. Where there is significant conflict and poor communication between parties then an equal time arrangement is not recommended.
The family report writer supported changeovers occurring at the children’s schools to reduce potential conflict.
On the issue of communication between the parents, the family report writer stated that if one party was more communicative then the other, the end result may well still be poor communication between the parties.
The family report writer confirmed that the eldest child [X] had indicated at the family report interviews that the parents had spoken negatively about the other parent at times.
The family report writer stated that she was prepared to recommend the children spending substantial and significant time with the non “live with” parent provided the latter lived within a reasonable distance of the “live with” parent, which was consistent with the recommendations in the family report.
The family report writer stated that telephone calls between the parent and the children in this case did not need to be supervised. The children should be permitted to dictate when they wish to end the telephone call. Ideally, the children would ring the relevant parent when they want to speak with them.
The Court accepts the evidence of the family report writer, including her recommendations.
Parenting
Section 60B of the Family Law Act, 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The children have a meaningful relationship with each parent and would benefit from a continuance of those relationships.
The wife has been the child’s primary carer. The husband, when not working in employment, assisted with the care of the children.
Should the children spend time with the husband, during school term times, on a fortnightly basis from after school Thursday to before school Monday morning, during their school holidays (sharing equally such time during the school holidays with the wife), and on other special occasions, it is likely that the children’s meaningful relationship with the husband can be maintained and enhanced.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court accepts the wife’s evidence as to family violence having been perpetrated against her during the relationship.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court gives some weight but not significant weight to the children’s views expressed to the family report writer.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children have close relationships with both sets of grandparents. They appear to have warm relationships with the husband’s partner and her children.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents have taken such opportunities, however the wife has usually made such decisions since separation.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties fulfilled such obligations during the relationship. After separation, the husband paid very little child support to the wife. The husband asserts that post separation he was prevented from earning an income in his former business, Company B, because his tools of trade for that business were in the garage of the former matrimonial home, he needed funds to remove those tools and to store them, and there was an injunction restraining him from drawing down funds from the investment property’s mortgage loan to enable him to do this (at least until 14 March 2016 when, pursuant to Court orders, the husband was permitted to further encumber the investment property for a sum of $100,000; the husband maintains that this sum was spent on legal fees, furniture, repairs to his vehicles including registration, and living expenses for himself and the children – there is no persuasive evidence before the Court that the husband could not have expended some modest part of this sum to retrieve his tools of trade from the former matrimonial home and store them externally).
The Court accepts the wife’s evidence that post separation she had made numerous offers to the husband to attend the former matrimonial home to retrieve his tools of trade. The husband, being a qualified (occupation omitted), post separation, had he been so minded, could have sought employment opportunities as a (occupation omitted) with a view to earning an income. The husband conceded in cross examination that he made no attempt to find paid employment by reference to his trial Affidavit. He had told the family report writer in July 2016 that he did not want to work for someone else, and so he had not sought other employment in the meantime. The Court rejects the husband’s belated evidence on this issue, in his own re-examination, to the effect that post separation he did seek employment as a (occupation omitted) but that he was unsuccessful in obtaining employment due to his lack of tools and a car. There is no persuasive evidence before the Court that the husband would have been prevented in some relevant way from seeking and obtaining employment opportunities as a (occupation omitted) post separation. It is now almost 3 years post separation and the husband has not yet begun to earn income in his pre-separation occupation as a (occupation omitted).
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Should the children spend time with the husband, as discussed above under the meaningful relationship primary consideration, there should be no detrimental effect upon the children’s meaningful relationship with the wife.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
The husband proposes, following the conclusion of these proceedings, to move to Sydney so that he can spend more time with the children. He proposes initially to live with his parents in (omitted), and then seek to find suitable accommodation elsewhere in Sydney.
(f) The capacity of each of the child’s parents; and 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
Both parties would appear to have such capacities. The husband states that in 2010 he was diagnosed by Dr S as having suffered a major depressive episode. He told Dr J, psychiatrist, in August 2016 that the depression was caused by work and financial pressures and relationship issues. He also told Dr J that he had been seeing Mr N for about four months on a fortnightly to monthly basis with discussions centering around frustrations with the family court system. It is noted that Dr J in his report opined that the husband at consultation did not present with symptoms indicative that he presented as a risk to others including the children. Dr J further opined that the husband might benefit from seeing a psychologist or counsellor for ongoing support to assist in coping with a difficult situation.
(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
The Court refers to the additional consideration discussion immediately above.
3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
In respect to the husband, the Court refers to its discussion above and below in relation to the need to protect primary consideration and family violence additional consideration respectively. Further, the Court refers to its discussion above in relation to the husband’s meagre payments of child support post separation.
(j) Any family violence involving the child or a member of the child's family.
The husband perpetrated family violence towards the wife, occasionally in the presence of the children, during the relationship, and as discussed previously in these reasons. The episode in 2010 was particularly serious and involved the police attending the former matrimonial home. This family violence has likely contributed to the wife’s inability to communicate with the husband and feeling intimidated by him. The Court gives significant weight to this additional consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
The wife obtained Apprehended Domestic Violence Orders both in 2010 and December 2015 against the husband (the latter order related to a telephone call from the husband to the wife at her work; the husband admitted to the family report writer that he had been inflammatory with his question, “why are the children dumped with the maternal grandmother whilst you are working?”).
(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.
The wife’s proposed parenting orders would, in the view of the Court, be least likely to lead to the institution of further proceedings in relation to the children.
m) Any other fact or circumstance that the Court thinks is relevant.
The husband has no concrete plans as to his future accommodation in Sydney, apart from his intention to live initially with the paternal grandparents at their home in (omitted). He has not operated his business Company B for almost 3 years and has not earned an income from work exertion during this period. It is quite unclear as to whether his partner Ms U would join him in Sydney after her eldest daughter concludes her high school studies at the end of 2018.
As to changeovers, if conducted at schools, that would reduce the prospect of conflict. Further, as to changeovers during non-school occasions, in view of the husband’s future accommodation being uncertain, the wife’s proposals for changeovers at her residence will provide certainty, and remove the risk of any future accommodation of the husband being situated greater than the wife’s tolerances for driving, as previously stated.
As to the wife’s proposed order (proposed order 15 in exhibit I) that the husband pay half of the children’s school expenses and half of their extracurricular activities fees within seven days of receiving an invoice from the mother, the husband opposes the making of such order. He submitted,
According to the child support regulations, the responsibility of paying school fees at private schools falls to the parent/s who enrols the children. Each party pay for the extra-curricular activities for the children as arranged by them, in their time, with a view to this negating the need for unnecessary communication between the parties. Such payments would also fall within the scope of child support where applicable.
In the view of the Court, the wife’s proposed order in effect represents a proposed application by her to depart from a prior child support assessment; the evidence adduced at these final parenting and property proceedings did not seek to address such a departure application. The Court declines to make this order in favour of the wife.
Parental responsibility: section 61DA(1) and (2)
By reason of the husband’s family violence perpetrated against the wife in the presence of the children in 2010 in particular, the presumption of equal shared parental responsibility does not apply.
The wife, post separation, has been usually making decisions on the behalf of the children, despite post separation and to date the parties having exchanged information by email in relation to the children. The wife is unable to reach agreement with the husband in relation to significant issues affecting the children and she feels intimidated by the husband. In this latter regard, the perpetration of family violence by the husband towards the wife during the relationship, together with the wife’s experience of being verbally abused by the husband from time to time during the relationship, has likely contributed to the wife feeling intimidated by the husband when dealing with him.
There is a significant prospect, should the parties have equal shared parental responsibility for major decisions affecting the children, that the parties will be unable to reach agreement in a timely fashion in relation to prospective major decisions affecting the children, and there will be conflict between them when they seek to reach agreement, leading to a significant risk of the children being adversely emotionally impacted by such conflict.
The wife has been the primary carer of the children from birth to date and pursuant to the Court’s proposed final parenting orders in these proceedings, she will continue to have the primary care of the children. It will be in the best interests of the children that the wife has sole parental responsibility for the children. The wife should be required by Court order to consult with the husband on major decisions affecting the long term care and welfare of the children.
In any event, despite the presumption of equal shared parental responsibility not applying, an equal time arrangement would carry the real risk of the parties being in conflict with each other with potential adverse emotional effects upon the children, and would not be in the best interests of the children. The wife’s proposed “time with” and other parenting orders will represent substantial and significant time under the Act.
Summary
Evaluating the above discussed primary and additional considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of children to make final parenting orders in accordance with the wife’s proposed parenting final orders set out in Exhibit I (including adding the words, “Prior to making any major long-term decision for the children, the mother shall consult the father in writing”, at the end of proposed order 2; adding the words “with changeovers to be at the children’s school(s)” at the end of proposed order 4(i) in Exhibit I; and adding the words “as soon as is reasonably practicable” after the word “email” in proposed order 8 in Exhibit I.
Property Adjustment
Pursuant to section 79(1) of the Act, in property settlement proceedings, the Court may make such order as it considers appropriate, in the case of proceedings with respect to the property of the parties to the marriage or either of them, altering the interests of the parties to the marriage in the property. Such order may include an order requiring either or both of the parties to the marriage to make, for the benefit of either or both of the parties to the marriage, such transfer of property as the Court determines.
The Court, in determining property proceedings, should firstly identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property that is available for distribution between them. The Court should then determine whether it is just and equitable to make an order altering the parties’ interests in such property. If the Court is satisfied that it is so just and equitable, the Court should then consider the contributions made by each of the parties pursuant to section 79(4) of the Act before looking at their future needs by reference to the factors set out under section 75(2) of the Act.
Balance sheet
A joint balance sheet (Exhibit H) provided (after certain agreed amendments):
| Ownership | Description | Wife’s value | Husband’s value | ||
| ASSETS | |||||
| 1. | W | Property A | 830,000 | 830,000 | |
| 2. | H | Property B | 415,000 | 415,000 | |
| 3. | W | Household contents | 5,000 | 5,000 | |
| 4. | W | Jewellery | E5,000 | 17,000 | |
| 5. | H | Interest in Company B | 5,000 | ||
| 6. | W | Bank account – (omitted) | 149 | ||
| 7. | H | Bank Account – (omitted) | 20.66 | ||
| 8. | W | (car model omitted) | 6,500 | 12,000 | |
| 9. | H | (car model omitted) | 4,000 | ||
| 10. | H | Tools & equipment | 5,000 | ||
| 11. | W | Drawn from Home Loan | 72,000 | ||
| 12. | |||||
| 13. | |||||
| 14. | |||||
| Total | $ | $ | |||
| 15. | H | Drawdown from home loan | 100,000 | ||
| Total | |||||
| LIABILITIES | |||||
| 16. | W | Mortgage – Property A | 137,000 | ||
| 17. | H | Mortgage – Property B | 200,000 | ||
| 18. | W | Credit Card | Nil | ||
| 19. | H | Credit Card | 2,500 | ||
| 20. | W | Loan from Ms H | 15,000 | 0 | |
| 21. | W | Loan from (omitted) | 52,000 | 0 | |
| 22. | H | Loans - Various | 135,991 | ||
| 23. | W | Children’s Accounts | 35,000 | ||
| 24. | |||||
| SUPERANNUATION | |||||
| Member | Name of fund | Type of Interest | Wife value | Husband value | |
| 25. | W | (superannuation fund omitted) | 40,000 | ||
| 26. | H | (superannuation fund omitted) | 37,873 | ||
Various notations were made at the conclusion of the balance sheet by the husband, which the Court treats as submissions of the husband.
As to item 4, the wife’s jewellery, there is no relevant evidence to support the husband’s assertion of $17,000 for such jewellery (see the Court’s earlier comments in relation to the jewellery). The wife has made an admission against interest that such jewellery is estimated to be valued at $5,000, and accordingly, this amount shall go into the balance sheet.
As to item 8, the wife’s (car model omitted), there is no persuasive evidence to support the husband’s assertion of $12,000 for such car. The wife has made an admission against interest that such car is valued at $6,500, and accordingly, this amount shall go into the balance sheet.
As to item 11, the wife’s alleged drawdown of $72,000 from the home loan (being the home loan relating to the former matrimonial home), it is noted that the wife concedes that the sum of $67,023 was so drawn down, and, by reference to paragraph 99 and annexure K to her trial Affidavit, she asserts that the drawdown was applied to living expenses for the children and herself.
The wife states that at the time she drew down on the loan, she had no savings and she was not receiving child-support. She states that she had outstanding bills, the car had broken down, and repairs were required to be undertaken to the former matrimonial home. In annexure K she gives detail as to how the money from the drawdown was applied (it would appear to cover a significant period dating from separation), including a list of items received by the husband that she was required to replace together with the replacement cost of same (see the second page of annexure K), and reference is made to paying $25,000 for legal fees.
It is noted that the husband did not conduct any significant cross-examination of the wife in relation to the various items of expenditure in annexure K. Apart from legal fees, the items of expenditure in annexure K would indeed appear to relate to the wife’s living expenses for herself and the children post separation, and to a lesser extent pre-separation, as asserted by the wife in her trial Affidavit.
The Court finds, by reference to the mother’s trial affidavit evidence and annexure K, including the nature of certain expenditure by the wife during the relationship through the Paypal facility (eg lingerie) that the items set out in annexure K totalling some $42,023 ($67,023 less $25,000 for legal fees) represented reasonable living expenses of the wife. It is clear, and relevant in this context, that the husband paid no significant child support to the wife post separation, apart from some very minor amounts, again in circumstances where he had failed to exercise his earning capacity as a (occupation omitted).
Again, the list in annexure K refers to legal fees of $25,000; this expenditure for the wife’s legal fees should be taken into account in the husband’s favour under s75(2)(o) of the Act, with the item 11 amount of $72,000 being removed from the balance sheet, as the sum for legal fees of $25,000 has otherwise depleted the asset pool available for distribution between the parties, noting the wife drew down on the mortgage loan for the former matrimonial home.
As to item 15, the husband’s drawdown from his “home loan” on the investment property in the sum of $100,000, this drawdown was conceded by the husband to have been made by him, following the Court’s order of 14 March 2016 which had permitted him to further encumber the investment property for an amount of $100,000. The Court regards its order made on 14 March 2016 to have been a partial property order of $100,000 in favour of the husband, despite the Court not having stated this expressly in either its order or reasons for decision; in this context the Court refers to the submission by Counsel for the husband at the interim property hearing at page 45.9-46.2 of the transcript. Accordingly, the Court will take into account the $100,000 in favour of the wife as an adjustment under s75(2)(o) of the Act.
Even if the Court is incorrect in treating its order of 14 March 2016 as a partial property order in favour of the husband, the Court is of the view that in any event, the husband’s drawdown from the investment property home loan of $100,000 should be taken into account in the wife’s favour under s75(2)(o) of the Act. The Court will now provide its reasons in this context.
In his trial Affidavit the husband states, without giving any relevant breakdown and particularisation of such expenditure, that the drawdown monies were spent by him for legal fees (the husband states, “I have paid approximately $140,000 to date”), furniture, repairs to his vehicles including registration et cetera, and living expenses for the children and himself. The husband gives no breakdown as to how the sum of $100,000 was used and dispersed for these different purposes including legal fees, apart from $2,900 for vehicle repairs. It is also relevant in this context that this expenditure of $100,000, drawn down from the loan attaching to the investment property (effectively depleting the asset pool available for distribution between the parties), occurred in circumstances where the husband had chosen not to exercise his income earning capacity as a (occupation omitted).
Accordingly, the husband’s drawdown from home loan of $100,000 should be taken into account in the wife’s favour under s75(2)(o) of the Act, with the item 15 amount of $100,000 being removed from the balance sheet.
The asserted liabilities of the wife for alleged loans listed in items 20-21, $67,000, are not supported by any Affidavit evidence from the alleged lenders, and in any event there is no persuasive evidence before the Court indicating that such alleged loans should properly be seen as arising out of the marital relationship. Accordingly, items 20-21 will be taken out of the balance sheet.
The asserted liabilities of the husband for alleged various loans and listed in item 22, $135,991, are not supported by any Affidavit evidence from the alleged lenders (apart from Mr I; see immediately below). The husband’s Affidavit evidence that the loans were taken out to repay his mortgage, to pay for his living expenses, and to meet his spending when the children were living with him for contact, lacks particularity, and one cannot discern what alleged loan funds of the husband were used for which purpose, but in any event the utilisation of such loans for, inter alia, the husband’s living expenses and the children should be seen as private expenditure post separation, in circumstances where the husband had chosen not to exercise his earning capacity as a (occupation omitted). The Court notes Mr I’s Affidavit evidence referring to two loans to the husband post-separation, totalling $8,000. There is no evidence indicating relevantly that these loans were other than loans made to the husband for his own personal purposes, and again they were post-separation. The $135,991 will be removed from the balance sheet.
As to item 23, the children’s accounts, wife, $35,000, the husband conceded that there was no relevant evidence before the Court as to the extent of monies taken out of the children’s bank accounts in 2014 by the wife. There is no relevant evidence before the Court to properly permit the Court to take into account this sum of $35,000 in favour of the husband. This amount will be removed from the balance sheet.
As to the superannuation interests of the parties, the parties ultimately agreed to the wife’s interest at $40,000, and the husband’s interest at $37,873. Neither party sought to include superannuation entitlements in the assessment of their respective contributions under the Act. The parties have not sought a splitting order in relation to superannuation. Accordingly, it is a case where the Court can adopt a two pool approach, one pool for non-superannuation assets and another for superannuation assets, and the Court will make no order in relation to the parties’ respective superannuation interests.
At trial date, the Court finds the parties had net assets, excluding superannuation, of $936,169 represented by the final balance sheet below:
| Ownership | Description | Wife’s value | Husband’s value | ||
| ASSETS | |||||
| 1. | W | Property A | 830,000 | 830,000 | |
| 2. | H | Property B | 415,000 | 415,000 | |
| 3. | W | Household contents | 5,000 | ||
| 4. | W | Jewellery | 5,000 | ||
| 5. | H | Interest in Company B | 5,000 | ||
| 6. | W | Bank account – (omitted) | 149 | ||
| 7. | H | Bank Account – (omitted) | 20 | ||
| 8. | W | (car model omitted) | 6,500 | ||
| 9. | H | (car model omitted) | 4,000 | ||
| 10. | H | Tools & equipment | 5,000 | ||
| Total: $1,275,669 | |||||
| LIABILITIES | |||||
| 11. | W | Mortgage – Property A | 137,000 | ||
| 12. | H | Mortgage – Property B | 200,000 | ||
| 13. | W | Credit Card | Nil | ||
| 19. | H | Credit Card | 2,500 | ||
| Total liabilities: $339,500 Net total: $936,169 | |||||
| SUPERANNUATION | |||||
| Member | Name of fund | Type of Interest | Wife value | Husband value | |
| 25. | W | (superannuation fund omitted) | 40,000 | ||
| 26. | H | (superannuation fund omitted) | 37,873 | ||
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property, and that the continuance of the current legal ownership of the property would not afford them justice and equity. The parties join in seeking orders for property adjustment.
Contributions
The Court refers to the case-law dicta below, relating to s79 property proceedings.
In In the Marriage of Harris (1991) 104 FLR 458 the Full Court said in assessing contributions:
“The task of the court in proceedings under section 79 is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
...the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.”
In Pierce & Pierce [1998] FamCA 74 the Full Court at 85,881:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.”
More recently in Dickons & Dickons [2012] FamCAFC 154, the Full Court said:
“23. We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.”
The court refers to its discussion earlier in these Reasons relating to the parties’ respective contributions during and after their relationship.
In closing submissions at the final hearing, the wife contended that a finding should be made that her contributions, under section 79 of the Family Law Act 1975 (“the Act”), as at trial date, should be assessed at 65% to the wife, 35% to the husband, and that a 5% adjustment under section 75(2) of the Act should be made in the wife’s favour, resulting in a final property adjustment order in favour of the wife at 70% and 30% to the husband.
In this context, it should be noted that the wife contended, inter alia, that her submitted adjusted contribution findings, with the court adding back into the balance sheet the husband’s $100,000 drawdown on the investment property loan, would result in the husband being required to pay the wife some $50,000, with the parties’ each retaining their respective properties, personal effects and superannuation.
In closing submissions at the final hearing, the husband contended that a finding should be made that his contributions should be assessed at 50% to himself and 50% to the wife. He did not seek any adjustment under section 75(2) of the Act.
Both parties did not seek to include their respective superannuation entitlements in the property division and merely sought orders that each party retain for their own benefit their respective superannuation entitlement.
At a mention of the proceedings on 14 September 2017 and on 13 October 2017, the Court heard further submissions of the parties in relation to, inter alia, the manner in which the Court should treat the husband’s drawdown of $100,000 from the investment property loan. The Court has considered these submissions.
The contributions of the parties which have been taken into account by the Court are:
· The wife’s bringing into the relationship the former matrimonial home, noting the relevant mortgage debt attached to it, was a significant contribution by her.
On the evidence before the Court, it is not possible to clearly state the value of this property immediately prior to the parties’ joint renovation works carried out to it in the months leading up to the marriage in November 2005.
The valuation evidence before the Court indicates that in November 2005 the renovated property was valued at $445,000, and that the renovations in the months leading up to November 2005 cost about $50,000.
The mortgage debt on the former matrimonial home at the time of the marriage was about $193,100 (conceded by the husband both in his oral evidence and during submissions).
The husband contended, by reference to the historical valuation report of Mr D, in relation to the former matrimonial home, attached to his trial affidavit, that taking a median approach to the “Summary of Sales Analyses” on page 22 of 24 of the said report, one could arrive at a range of pre-renovation values for the former matrimonial home at $345,000-$370,000. On this approach, the midpoint is $357,500, and deducting the then mortgage balance of $193,100, one is left with $164,400. Such an approach is, however, impermissible.
The wife ultimately did not seek to place a precise value on the former matrimonial home prior to these renovations being carried out.
· By reason of the husband being able to reside in the former matrimonial home (brought into the relationship by the wife) during the relationship, he was then enabled to rent the investment property, with such rental income usually meeting the mortgage repayments on that investment property, and the Court takes this fact into account in favour of the wife.
· The husband’s bringing into the relationship the investment property, with a net equity then of about $177,200. This was a significant contribution by him.
· The Court notes that the other personal assets of the parties brought into the relationship were of modest value, and about equal.
· The parties’ contributions towards the renovations of the former matrimonial home, both in 2005 (and noting the wife made a cash contribution of $15,000 from her savings towards these 2005 renovations) and later in about 2010, 2011, being contributions of substance. The Court includes here the parties’ reduction of the credit card debt for the 2005 renovations through application of their cash wedding gifts.
· The parties’ direct financial contributions to the mortgage repayments on the former matrimonial home (including the husband’s payment in reduction of the mortgage loan on the former matrimonial home of $78,000 in 2013; the Court infers that this sum was derived from his work efforts, during the relationship, in connection with Company A) during the relationship. The Court takes into account that in the first 2 years of the marriage, the wife paid a preponderance of the mortgage repayments, and during the parties’ separation in 2010 the wife’s family was paying the mortgage.
· The parties’ indirect contributions towards the reduction of the mortgage on the former matrimonial home through their respective payments of household related expenses, including utility bills, and expenses relating to the children. The Court takes into account that during the parties’ separation in 2010 the wife was meeting the household bills and expenses, and that during the last 3 years of the relationship the wife bore the substantial burden of meeting such expenses.
· The wife’s sole direct financial contributions to the outgoings and mortgage repayments on the former matrimonial home post separation and to date (about 3 years). These contributions of substance of the wife are offset to a not insignificant extent by her occupation of that property since separation, being October 2014.
· The wife’s primary care of the children during the relationship and post separation, whilst having regard to the husband’s assistance in this context.
In all the circumstances, the Court assesses the wife’s contributions at 55% and 45% to the husband as at trial date.
Section 75(2)
The wife is aged about 38 years and the husband 39 years.
The parties are in good health. The wife is in part-time gainful employment as a (occupation omitted). She has and will have the primary care for children. The husband is a qualified (occupation omitted) and proposes to re-establish his business after these proceedings. Should the husband choose to exercise his work capacity, his income would likely be at least comparable to the wife’s income, and quite possibly superior.
The husband has superannuation entitlements of some $37,873 and the wife’s superannuation entitlement is $40,000. Again, the parties have not sought a splitting order. The Court does not propose to disturb those entitlements. The parties will not have access to the superannuation funds for some time.
Both parties have a motor vehicle. They have no significant cash assets.
The wife will have the primary care of children, and the children are presently aged 10 and 7 years. The husband did not assist the wife financially in maintaining the children post separation and to date, apart from some very small amounts of child support, and there is a significant doubt as to whether he will prospectively pay adequate child support to the wife.
The court takes into account, in favour of the wife, the husband’s drawdown on the investment property loan of $100,000, whilst taking into account, in the husband’s favour, the wife’s drawdown on the former matrimonial home’s loan of $25,000 for legal fees.
The husband contends that he has personal liabilities of some $135,991, with the wife contending that she has debts of some $65,000; none of these debts came into the balance sheet.
In the above circumstances, there should be an adjustment in favour of the wife of 20%.
Accordingly, the Court is satisfied that there should be an adjusted final contributions assessment of 75% to the wife and 25% to the husband.
Conclusion
The wife seeks to retain the former matrimonial home with its associated debt. The mortgage debt on that home is $137,000.
Pursuant to the Court’s adjusted contribution assessment (wife 75%, husband 25%), the wife is entitled to $702,127 (75% of the net property pool, excluding superannuation, of $936,169).
Pursuant to the Court’s adjusted contribution assessment, the husband is entitled to $234,042 (25% of the net property pool excluding superannuation, of $936,169).
With the wife retaining the former matrimonial home and associated debt, net $693,000, household contents $5,000, jewellery $5,000, bank account $149, car $6,500, a total of $709,649; and the husband retaining the investment property and associated debt, net $215,000, interest in Company B $5,000, bank account $20, car $4,000, tools and equivalent $5,000, less credit card debt $2,500, a net total of $226,520, the wife should pay the husband $7,522 ($709,649 less $702,127).
In the above circumstances, the wife will be able to remain living in the former matrimonial home with the children, being their long standing residence, servicing the mortgage loan relating to that property. The husband will be able to retain the investment property, with its associated debt, the above referred personal property, with a modest payment to be made to him by the wife of $7,522. The court notes that the husband proposes to move to Sydney and initially live with his parents, and seek to purchase a residence for himself and re-establish his former business. Again, it was unclear on the evidence as to whether his present partner will move to Sydney to join him at the end of 2018.
Neither party sought a superannuation splitting order, noting the husband’s entitlement of $37,873 and the wife’s at $40,000.
The wife should be given some leeway to pay the sum of $7,522 to the husband noting her present financial circumstances; she should be allowed some 3 months to pay this sum. Should the wife, within 3 months, not be in a position to make the above payment to the husband, then she will be required to sell the former matrimonial home to enable this payment to be made.
In the circumstances of this case, and for all the reasons set out above, the Court considers that the orders proposed to be made will produce a just and equitable result as between the parties and are appropriate.
I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 12 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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