VALLAS & VALLAS
[2015] FCCA 924
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALLAS & VALLAS | [2015] FCCA 924 |
| Catchwords: PROPERTY – Property settlement – how monies remaining from the sale of the family home should be distributed – whether there should be a superannuation split - whether the costs of the wife and children resulting from the separation of the parties while on holiday in Greece ought to be paid by the husband. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Tait & Dinsmore (2007) FamCA 1383 Godfrey & Sanders (2007) FamCA 102 Mazorski & Albright (2008) 37 FLR 518 Chapman & Palmer [1977] FC 90-510 Stanford v Stanford (2012) FLC 93-495 Bevan & Bevan [2013] FAMCAFC 116 |
| Applicant: | MS VALLAS |
| Respondent: | MR VALLAS |
| File Number: | DGC 2383 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 12 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitors for the Applicant: | Robert Halliday & Associates |
| Counsel for the Respondent: | Ms R. Teicher |
| Solicitors for the Respondent: | Nicolaides & Associates |
ORDERS
PARENTING ORDERS
All previous parenting orders in relation to the children X born (omitted) 2009, Y born (omitted) 2010 and Z born (omitted) 2010 (“the children”) are hereby discharged.
The wife shall have sole parental responsibility for the children.
The children shall live with the wife.
Notwithstanding the provision of paragraph 2 hereof, the wife shall inform the husband in writing (which includes by text message or email or other electronic means) at least 21 days before making decisions about the following matters:
(a)Any change in the children’s school/s;
(b)Any religious instruction the children receive, whether at school or otherwise;
(c)Any non-emergency surgery or serious medical treatment the children or any of them is to undergo;
(d)Any proposed relocation of more than 20 kilometres from her present residence.
and the father shall provide his views, if any, in relation to all such information within ten days of receipt.
The children shall spend time and communicate with the husband as follows:
(a)On each alternate weekend during school terms from after school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday) commencing on 24 April 2015;
(b)On each alternate Monday during school terms from after school to 7:00 pm with the husband to provide an evening meal for the children prior to returning them to the wife, such time to commence on 4 May 2015;
(c)In school term holidays by agreement between the parties, and failing agreement from after school on the last day of term to 6:00 pm on the second Saturday of the holidays in odd numbered years, and from 6:00 pm on the second Saturday until before school on the first day of the next term in even numbered years;
(d)For two weeks in the long summer holidays each year by agreement between the parties and failing agreement from 10:00 am on 2 January to 5:00 pm on 16 January 2017 and in each alternate year thereafter, and, subject to paragraph (e) below, from 10:00 am on the first Saturday of the holidays in 2015 to 5:00 pm 14 days later and in each alternate year thereafter;
(e)from 5:00 pm on Christmas Eve to 11:00 am on Christmas Day 2015 and in each alternate year thereafter, and from 11:00 am on Christmas Day to 5:00 pm on Boxing Day 2016 and in each alternate year thereafter;
(f)for half of the Greek Orthodox Easter weekend each year by agreement between the parties, and failing agreement, for the first half in 2016 and in each alternate year thereafter, and for the second half in 2017 and in each alternate year thereafter;
(g)for half of the Catholic Easter weekend each year by agreement between the parties, and failing agreement, for the second half in 2016 and in each alternate year thereafter, and for the first half in 2017 and in each alternate year thereafter;
(h)On each of the children’s and the husband’s birthdays by agreement and failing agreement:
(i)if a school day from after school to 7:00 pm in odd numbered years with the husband to provide an evening meal for the children prior to returning them to the wife;
(ii)if not a school day from 10:00 am to 2:00 pm in odd numbered years and from 2:00 pm to 6:00 pm in even numbered years;
(iii)if a school day in even numbered years by telephone, Skype or other electronic means at 7:00 pm;
(i)From 6:00 pm on the day before Father’s Day to 6:00 pm on Father’s Day each year should it not fall on a day when the children would normally be spending time with the husband; and
(j)At other times by agreement between the parties.
The arrangements set out in paragraph 5(a) above shall suspend during school holidays and shall continue at the commencement of the following school term as if the holidays had not intervened.
The time the children spend with the father pursuant to paragraph 5 hereof shall suspend, if necessary, at the following times:
(a)from 11:00 am on Christmas Day to 5:00 pm on Boxing Day 2015 and in each alternate year thereafter;
(b)from 5:00 pm on Christmas Eve to 11:00 am on Christmas Day 2016 and in each alternate year thereafter;
(c)From 6:00 pm on the day before Mother’s Day to 6:00 pm on Mother’s Day each year should it fall on a day when the children would normally be spending time with the husband;
(d)On each of the children’s and the wife’s birthdays by agreement and failing agreement:
(i)if a school day from after school to 7:00 pm in even numbered years with the wife to provide an evening meal for the children prior to returning them to the husband;
(ii)if not a school day from 10:00 am to 2:00 pm in even numbered years and from 2:00 pm to 6:00 pm in odd numbered years;
(e)At such other times as the parties might agree from time to time.
Changeover shall take place at the children’s school or childcare centre, and otherwise at a venue to be agreed by the parties and failing agreement, in the car park of the McDonald’s restaurant on the corner of (omitted) and (omitted), (omitted).
The wife is permitted to change the surname of the children to “(omitted)-Vallas”.
Notwithstanding the provision of paragraph 9 hereof, the wife is hereby restrained by injunction from changing the children’s surnames, or allowing them to be called by any surname, which does not include the name “Vallas”.
PROPERTY ORDERS
The monies held in trust for the parties by Plaza Legal shall be distributed:
(a)first to pay to the wife’s parents the sum of $10,000;
(b)second the sum of $400,800 to the wife; and
(c)any remainder to be equally divided between the husband and wife.
The wife shall pay to the husband the sum of $1825 from the amount specified in paragraph 11(b) hereof.
The wife shall retain for her own use and benefit absolutely:
(a)the $100,000 already distributed to her from monies retained in trust;
(b)the Holden (omitted) motor vehicle registration number (omitted);
(c)her (omitted) shares; and
(d)her jewellery and personal items as set out in paragraph 12 of the orders sought in her Outline of Case Document filed 12 November 2014 and the husband shall return all of those items in his possession or control to her forthwith.
The husband shall retain for his own use and benefit absolutely:
(a)the $100,000 already distributed to him from the monies retained in trust;
(b)the Holden (omitted) motor vehicle registration number (omitted);
(c)the business known as (business omitted); and
(d)the sum of $23,800 he withdrew from the parties’ (omitted) Bank.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 80 per cent to the Wife and 20 per cent to the Husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Vallas & Vallas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2383 of 2013
| MS VALLAS |
Applicant
And
| MR VALLAS |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Vallas (“the wife”) and Mr Vallas (“the husband”) separated in late June 2013 while on holiday in Greece with their three children X born (omitted) 2009 (“X”), and twins Y and Z born (omitted) 2010 (“Y” and “Z”) (collectively “the children”).
The exact circumstances of the separation are in dispute, but they have led to hotly contested parenting and property proceedings in this Court.
In legal terms the issues to be decided are not complex and can be set out as follows:
A. Should the parents retain equal shared parental responsibility for the children or should that responsibility rest solely with the wife?
B. In circumstances where the parties agree that the children should live with the wife, how much time, and in what circumstances, should the children spend with the husband?
C. Is it in the children’s best interests for their surname to be changed to a hyphenated form of both parents’ surnames?
D. What are the property interests of the parties and what is the value of that property?
E. Is it just and equitable in all the circumstances to alter those interests?
F. If it is just and equitable to alter those interests, what were the contributions of the parties to the property?
G. Should there be any adjustment made to the contribution-based entitlements of the parties by reason of the matters set out in s.75(2) of the Act?
H. In light of those findings what orders should be made to produce a just and equitable property settlement between the parties?
Background
The husband was born on the Greek island of (omitted) on (omitted) 1974 and is thus now 41 years of age.
He first visited Australia in (omitted) 1998, later gaining permanent residence. He is now an Australian citizen.
The wife was born in (omitted) Australia to Greek immigrant parents on (omitted) 1973 and is thus now 42 years old.
The parties met in (omitted) 2006, and began living together three months later in a house owned by the wife and her parents at Property P (“the Property P property”).
The parties were married on (omitted) 2007 and finally separated on 27 June 2013 while on holidays in Greece. They were divorced on 14 September 2014. This was the second marriage for both parties. Neither has any children from his/her first marriage.
As stated above there are three children of the marriage who currently live with the wife and spend time with the husband.
The wife suffers from a condition called Sjorgrens/lupus Syndrome which is an autoimmune deficiency syndrome associated with rheumatoid arthritis. She has had her left thyroid gland removed and suffered three miscarriages during the marriage as a result of the condition. She deposes that stress causes her pain and discomfort from this condition.
Y was born with a congenital heart condition and underwent surgery to insert a pacemaker on the day after her birth. She continues to require medical monitoring and treatment for her heart condition.
In May 2011, when Y was nine months old, she was admitted to the (omitted) Hospital, where a CT scan revealed bleeding on her brain. That diagnosis led to investigations by the (omitted) Hospital and the Department of Human Services into the possibility that Y’s neurological condition was the result of a non-accidental injury. The outcome of those investigations was that Y’s subdural haematomas were possibly the result of her heart condition and no further action was taken in relation to the aetiology. Those investigations cannot help but have been very traumatic for the parents and all three children.
The husband worked as a (occupation omitted) in his own business throughout the marriage but at the time of trial was receiving Centrelink benefits in addition to the income from that work. His earning capacity and indeed his actual income are matters of dispute between the parties.
The wife was employed from the beginning of the relationship until the birth of the parties’ first child and is currently a full-time homemaker and parent who supplements her income with some casual work as a (occupation omitted).
The wife and children currently live with the maternal grandparents and the husband lives on his own in rental accommodation, although his mother sometimes stays with him when she is visiting from Greece.
Neither party has repartnered.
Procedural History
The wife filed an Initiating Application on 26 August 2013 in which she sought a property settlement, spousal maintenance, litigation funding and parenting orders in relation to the parties’ three children.
The Husband filed a Response on 30 September 2013 seeking parenting orders with equal shared parental responsibility for the children, and for the children to live with the mother and spend time with him each weekend. In relation to the property orders the husband sought sale of the matrimonial home and orders in relation to his (omitted) business.
On 1 October 2013 the proceedings came before me for the first time in the Duty List. The matter was set down for a Conciliation Conference and the parties were able to come to an interim agreement on parenting issues and procedural property matters by way of consent orders.
The children were to live with their mother and spend time with their father, including overnight time, each weekend. Provisions were also made for telephone time. A Watch List Order, and further orders restraining the parties from denigrating each other or discussing the proceedings in the presence of the children were also made.
In relation to property matters the parties consented to restraints on further encumbering the assets of the marriage, the freezing of the children’s bank accounts, restraints on the husband accessing the parties’ (omitted) Bank, the transfer of a motor vehicle to the wife, and the sale of the family home at Property B (“the Property B property”) with each party to receive $100,000 as a partial property settlement and the remainder to be held in trust for them pending the outcome of these proceedings.
On 4 February 2014 the parties participated in a Conciliation Conference, but no agreement was reached.
The matter returned to me on 25 February 2014 in the Duty List. The proceedings were set down for trial on 12 November 2014 with directions for filing and an order for the preparation of a Family Report.
On 6 March 2014 the husband filed a Contravention Application in relation to parenting orders.
The following day on 7 March 2014 the wife filed an Application in a Case seeking that the parenting orders made on 1 October 2013 be suspended and for the husband to provide full and frank disclosure of children’s living arrangements.
On 28 April 2014 the Contravention and Application in a Case were heard in the Duty List and the parties came to agreement with orders being made by consent.
Those orders provided for extra time to be spent between the children and the husband, for a change in changeover venue, for the husband to provide a single bed for X, for restraints on both parties smoking in front of the children or allowing any other person to do so, for both parties to be involved in the children’s crèche or kindergarten arrangements and in any medical treatment they might undergo, for both parties to ensure that the children attended their counsellor, and for the husband to return certain items of property to the wife.
The Contravention Application filed 6 March 2014 and the Application in a Case filed 7 March 2014 were otherwise dismissed.
The husband filed an Application for Divorce on 30 June 2014, that application resulting in a Divorce Order being made on 13 August 2014, that order becoming final on 14 September 2014.
On 18 September 2014 the Family Report prepared by Ms A (“Ms A”) was released to the parties.
The trial began on 12 November 2014, with both parties being represented by Counsel, and concluded on 14 November 2014.
The witnesses were the parties and Ms A, all of whom underwent cross-examination.
At the end of the trial I reserved my decision and ordered the parties to prepare and file final written submissions as there was insufficient court time for full and proper oral submissions on the day. The Husband filed his written submissions on 9 December 2014 and the Wife filed hers on 12 December 2014.
The Issues and the Evidence
A. Should the parents retain equal shared parental responsibility for the children or should that responsibility rest solely with the wife?
The wife seeks an order for sole parental responsibility in relation to the children while the husband proposes that the parties retain equal shared parental responsibility.
The law in relation to this matter is found in s.61DA of the Family Law Act 1975 (“the Act”).
Sub-section (1) of that section states that when making parenting orders the court must apply a presumption that it is in the children’s best interests for their parents to equally share parental responsibility for them.
However, s.61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in either abuse of a child or in family violence.
In this case the wife alleges a pattern of consistent and persistent family violence not only in the form of occasional physical abuse but in the form of verbal and emotional abuse, and coercive and controlling behaviour on the part of the husband throughout the marriage.
I have set out the evidence and my findings in relation to the issue of family violence in paragraphs 129 to 141 below and will not repeat the detail here, save to say that that evidence in my view provides reasonable grounds to believe that a parent of the child has engaged in family violence.
In those circumstances I find that the presumption set out in s.61DA(1) of the Act does not apply in this case.
That does not mean that it is not open to me to find that it is in the children’s best interests for the parents to share equally parental responsibility for them.
However, for the reasons set out in paragraphs 62 to said 146 of this judgment, I do not believe that it is in the children’s best interests for their parents to share parental responsibility for them.
There come times in children’s lives when decisions must be made. Those times include when decisions must be made about schooling, or about medical or allied health treatment, or about where the children will live.
Where parents are in a high state of conflict, as these parents are, it is simply not practicable to require them to come to agreement on major issues.
In this case, the parties appear to be unable to communicate appropriately in order to make decisions jointly about the welfare of the children. There is no trust between them at all, and the allegations of coercing and controlling behaviour made by the wife against the husband, and of manipulative behaviour made by the husband against the wife, both of which I discuss in more detail later in these reasons, lead me to believe that it is unlikely that they will be able to come to agreement on major issues relating to the children’s welfare.
The children will be living predominantly with the wife (see paragraphs 48 to 52 below) and I will therefore make an order that the wife be solely responsible for making decisions about those issues.
That does not mean that the husband should not be consulted about those issues, but simply that when a decision must be made it should be the wife who is responsible for making those decisions. I will therefore make orders that provide for the wife to consult with the husband about such issues, but which leave the responsibility for final decisions about the welfare of the children with her.
B. In circumstances where the parties agree that the children should live with the wife, how much time, and in what circumstances, should the children spend with the husband?
The wife has maintained throughout the proceedings that the children should live with her and those are the orders she has sought both in her filed documentation and in her conversation with Ms A.
The husband’s initial Response, filed on 30 September 2013, sought an order that the children live with the wife. That order was repeated in the husband’s Amended Response filed 27 August 2014, and again in his Outline of Case Document filed on 10 November 2014.
However, in his conversation with Ms A for the purposes of the family report, the husband is reported to have said that he had been fighting with his solicitor who was not following his instructions, and that he wanted X to live with him because he was being brainwashed by the wife. He did not express a wish for Y and Z to live with him.
When asked about that statement at trial, the husband acknowledged that he had made it, and said that he felt frustrated when he was talking to Ms A because there had been issues with the children and especially with X. It does not appear from the transcript that the husband was asked whether he still proposed that X live with him at the time of trial.
In those circumstances, I can only assume that the parties are agreed that all the children should live with the wife, and I will make an order to that effect.
The question then becomes what kind of time the children should spend with the husband.
Section 65DAA(1) of the Act states that if the court proposes to make an order for parents to have equal shared responsibility for children then the court must consider whether it would be in the children’s best interests to spend equal time with both parents.
I do not propose to make an order for equal shared parental responsibility, so I am not bound to consider whether an equal time arrangement would be in the children’s best interests.
Nevertheless, with neither party in this case proposing that the children spend equal time with them, and for the reasons set out in paragraphs 62 to said 146, I find that it is not in the children’s best interests that such an order be made.
Section 65DAA(2) of the Act states as follows:
Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or included provision in the order) for the child spend equal time with each of the parents;
the court must
(c) consider whether the child spending substantial and significant time with each of the parents would be in the interest of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Again, while I am not obliged to consider the matters set out in sub-ss.(c), (d) and (e) above because I do not propose to make an order for the parents to have equal shared parental responsibility for the children, I will consider the issue of whether substantial and significant time with the husband is in the children’s best interests and whether substantial and significant time would be “reasonably practicable”[1].
[1] See s.65DAA(5).
“Substantial and significant time” is defined in s.65DAA(3) of the Act as has:
(a) the time the child spends with a parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Sub-section (4) of s.65DAA makes clear that the matters set out in sub-s.(3) do not limit the matters which a court might consider in determining whether the time the child spends with a parent would be substantial and significant.
Section 60CA of the Act states clearly that when making parenting orders, a Court must consider the best interests of the child as its paramount consideration.
The matters the Court is required to consider when making orders that would be in the best interests of the child or children are set out in s.60CC of the Act, and I will address each of those factors in turn.
There are two primary factors to be considered and they are set out in s.60CC(2).
Section 60CC(2)(a) states that the first “primary consideration” the Court must look at is the benefit to a child of having a meaningful relationship with both of the child’s parents.
Section 60CC(2)(b) states that the second “primary consideration” is the need to protect a child from physical or psychological harm as a result of abuse, neglect, or being exposed to family violence.
Where it might be said that those two considerations conflict, s.60CC(2A) makes clear that the need to protect a child from harm takes precedence over the benefit to a child in having a meaningful relationship with both parents.
Section 60CC(2)(a) – the benefit of a meaningful relationship
The question of what a “meaningful relationship” is has been considered in several cases.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) FamCA 102 between an “optimal” relationship and a “meaningful” relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In a much quoted passage from Mazorski & Albright (2008) 37 FLR 518, Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, if the relationship between X, Y, Z and the husband is healthy, worthwhile, advantageous, important, significant and valuable to them, and one in which the husband is a positive role model for the children, then it can be said that their relationship with him is meaningful.
There is a matter in dispute in these proceedings which is very relevant to this issue. That is the view of both the wife and Ms A that the husband preferences his relationship with X over that with Y and Z because X is a boy.
In her family report, Ms A reports that the wife “fears that Mr Vallas will significantly influence X (in particular) to have a male privileged position in comparison with his sisters, and to develop attitudes towards women which are controlling and emotionally abusive”.
Ms A’s observation of the husband with the children was that he appeared to seek the attention of X and to not notice or ignore the attempts of Z and Y to catch his attention.
She says that the husband did not initiate engagement with Z or Y who had to come to him for attention. He was observed to seek out X’s attention.
That is not to say that the relationship between father and all three children was not affectionate and at times attentive. Ms A describes him as “warm and playful with the children, but less able to be directive” than the wife. She further describes him as “reasonably attuned to them in terms of their immediate needs when they were in his company at observation”. He involved all three children in a game of hide and seek, which all seemed to enjoy, and when it was time to leave all three children expressed a wish either for him to stay or for them to go with him.
The husband himself denies that he prefers X over his daughters.
At trial he was asked whether there might be a reason for Ms A’s observation that he paid more attention to X. His answer was that he believed that since the parties had separated X had been playing electronic games and watching television to an excessive degree and on that day he wanted X to engage with him. He said that when he arrived X was playing a computer game or watching television and the girls were playing in the sandpit. He said all three children had come to him but that X had then gone back to play the electronic games and that was why he had sought his attention.
Under cross-examination by the husband’s counsel, Ms A could not be moved on her view that the father had seemed particularly focused on X. She said that when Z had tried to get his attention, he had basically ignored her. She said further that all three children had given indications of being in some mild distress on the day of the observation, and that she did not think that the husband was responding to X because he had been displaying any particular distress.
If the husband does have a view that X is more important because he is a boy, that will affect not only X’s view of his role as a privileged male, but also Y and Z’s view of gender roles, and may well result in the very situation that the mother fears as expressed to Ms A.
If his relationship with all three children is to be meaningful in the terms set out by Cronin J in Tait & Dinsmore, it is vital that he views all three children equally in terms of gender status.
In all other aspects it would appear that the husband has a meaningful relationship with his children in that the children appear to find that relationship worthwhile, advantageous, important, significant and valuable.
Section 60CC(2)(b) – the need to protect a child from harm
The wording of the statute in this section is that child ought to be protected from “physical or psychological harm as a result of abuse, neglect, or being exposed to family violence”.
There is no suggestion that the children have been subjected to physical abuse on the part of the husband.
However, the husband alleges that the wife had subjected the children to physical abuse, and indeed, while denying that she had left a hand mark on X’s skin at a particular time, the wife conceded that she had smacked the children on occasion.
It appears from other evidence that the child protection authorities investigated allegations that the mother had abused X at one time during the marriage, but that no action other than a referral to Child First was taken.
On the evidence before me I do not find that the wife’s discipline of the children amounts to physical abuse and I note that the wife has completed a post-separation parenting course in order to assist her in her parenting strategies.
However, it is my view that the children have been exposed to psychological harm as a result of being exposed to family violence. Again, I refer to paragraphs 129 to 141 in relation to my findings on family violence.
Section 4AB(3) of the Act states:
a child is exposed[2] to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
[2] Emphasis in the Act
The children were present during a time when I have found that a pattern of coercive and controlling behaviour was perpetrated upon the wife by the husband. They were also present at times when he made derogatory remarks to and about her and where there was physical violence between them.
When children live in an atmosphere of coercion and control where their mother is subjected to derogatory taunts by their father, and where there are occasions of physical violence between their parents, they cannot help but suffer serious psychological harm.
They can become hesitant, easily distressed, and withdrawn, all symptoms ascribed to the children in this matter, both by the wife and by Ms A.
While I have not found that any actions of the parents in this case amounts to physical abuse of the children, I note that the definition of abuse in relation to a child as set out in s.4(1) of the Act, includes “causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”.
Under s.60CC(2A) of the Act, the need to protect the children from this serious psychological harm and abuse is to be taken as the most important factor to be considered when a court is determining what is in a child’s best interests.
The toxic relationship between the parents in this matter means that I will make orders which provide for little contact between them which would give rise for opportunities for the children to be exposed to family violence.
Additional considerations
The additional considerations as set out in Section 60CC(3) are as follows.
(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.
X is 5½ years old. The twins Y and Z are 4½. There is no evidence in the family report to indicate what their views are, but even if they had been vociferously expressed, their tender years would mean that the Court would give little weight to them.
Section 60CC(3) (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);
It is clear that the children have close and loving relationships with both parents, despite their being exposed to the conflict between them, and there is nothing in the evidence to indicate that their relationships with their grandparents is other than appropriate and valuable to them.
It is vital that those relationships continue and the orders I propose to make will allow for that continuation.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
The mother alleges that during the marriage the father took little opportunity to make major decisions about the children, or to spend time and communicate with them.
It is her evidence that he rarely if ever attended medical appointments with Y during the marriage, and that apart from some discussion about whether X would attend Greek school, he took little interest in major long-term issues in relation to the children.
The father denies that allegation, and evidence was presented at trial which showed that he did attend many of Y’s medical appointments at (omitted) Hospital, although the wife contends that that was not the case until after these proceedings were instituted.
There is also evidence that the husband took an interest in which school X was to attend although the conflict around that issue meant that his participation in that decision was actually minimal.
Again however, in her trial affidavit the wife says:
The husband seems intent (now that the matter is proceeding in court) on trying to demonstrate that he has a genuine interest in the children’s welfare, whereas previously he displayed little interest.
Both parents have spent as much time as possible with the children since separation.
Indeed the husband told Ms A at the family report interview that he wished to spend more time with the children than had been sought in his Responses filed with the court.
Section 60CC(3) (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 parents have looked after and financially provided for the children when they have been in their respective care, and obviously, the fact that the children live with the wife means that she has borne the majority of that burden.
In relation to child support, the mother deposes as follows in her trial affidavit:
Shortly after separation the husband went on unemployment benefits (in November 2013). The husband has been assessed to pay $33.25 per month child support for our three children following the lodging of his 2014 tax return that shows a business income (his GST return) from (omitted) of $40,770. Previously the husband was assessed to pay $324.50 per month.
It is clear from the evidence before the court that before separation the parties were relatively well off in that they could afford overseas holidays, they owned their own home, and the husband was gainfully employed in a profitable business.
In her trial affidavit the wife deposes as follows in relation to child support:
The husband is a (occupation omitted) and has his own business. During telephone conversations with the children he has told them on numerous occasions that he is “still at work”. On one occasion, when we called at 8:30 am the husband said he was already at work. I believe the husband is working and receiving cash in hand, even though he has been receiving Centrelink since November 2013.
The husband’s (omitted) Bank Statements show that he has been spending amounts in excess of $1000 per job on (omitted) from October 2013 to 30 June 2014. These would be large jobs and would require one to two people to help the husband. The husband spent approximately $20,187.49 on (omitted) and materials. The husband’s 2013/2014 Profit & Loss Statement shows sales of $40,770.00 and noncapital purchases of $23,250.00. The husband does not disclose any wages for employees. I believe the husband is paying his workers in cash and receiving cash payments for his work. The husband is claiming Newstart allowance from Centrelink on average in the amount of $345 per week.
I will return to the issue of the husband’s income later in these reasons in the context of the property settlement and if I find that the decrease in his income is due to factors that are wholly or mostly within his control, I will make inferences in relation to his willingness to pay child support for his children.
Section 60CC(3) (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;
The orders I propose to make do not involve any change in the children’s circumstances.
Section 60CC(3) (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;
The evidence is that the parties currently live about 15 minutes apart. That does not pose any practical difficulty or particular expense in terms of the time the children can spend with their father in circumstances where both parents own a car.
Section 60CC(3) (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;
The wife alleges that the husband took little interest in the care of the children during the marriage, saying that he told her that it was her job and responsibility as their mother to take care of them. She deposes that if she asked him for help he would tell her that she was an incompetent mother and that she should be able to care for them on her own. She further deposes that the husband did not bathe the twins until after separation and on the couple of occasions when he bathed X during the marriage he told her that she was an unfit mother who could not bathe her own child.
However, at the present time, both parents appear perfectly capable of providing for the children’s material and intellectual needs.
It is in the area of their emotional needs that the court has some serious concerns. I have already made reference to these issues elsewhere in this judgment and will not repeat those concerns here, save to say that they are based on the exposure of the children to the conflict between the parents, on the father’s leaving the wife and children without means in Greece in June 2013, and on the father’s apparent favouring of X over Y and Z.
Section 60CC(3) (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;
X, Y and Z are all young children. They are all entirely reliant on their parents to meet their needs and promote their welfare.
It is therefore vital that the parents behave with maturity, common sense and good judgement in relation to the children.
As a result of statements made by Ms A, I hold some concerns as to the level of maturity shown by the husband in these proceedings. For instance, she states that he made the rather self-pitying comment that he had no rights in these proceedings because he was a man, and that he lacked insight into the impact of his behaviour upon his family.
Both parents are of Greek heritage, the husband having been born in (omitted), and the wife in Australia of Greek-born parents. Both parents speak Greek and so do the children, at least to some extent.
The husband would like the children to attend Greek school on Saturdays, and perhaps a Greek secondary school when that time comes. The wife is not opposed to the children attending Greek school on weekends but has not at this stage committed to sending them to a Greek secondary school given the expense involved and the uncertainty about the parties’ future financial position.
It has been established, if not actually agreed between the parents, that X will attend (omitted) Public School for his formal education in 2015, and as I intend to make an order that the wife be solely responsible for deciding where the children go to school, it is likely that Y and Z will follow him next year.
Clearly these children will grow up with the benefit of both their Greek and Australian heritage and cultures.
There is some concern that the children’s language development in English is not particularly advanced, although there is no suggestion that they do not understand English nor speak it at all. That is no doubt something which will be rectified once they all attend school.
Section 60CC(3) (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;
This consideration is not relevant in this case.
Section 60CC(3) (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents express their love for all three of their children.
However, there is some concern that the father’s preference for X because of his gender indicates that his attitude to his daughters may be somewhat lacking.
The mother has at all times looked after the children and attempted to keep them safe.
While it is clear that the father would never deliberately harm the children, his leaving their mother in Greece without access to money when the parties separated, and his wish as expressed to Ms A that he would like X to live with him, indicates a somewhat cavalier attitude to his responsibilities as the children’s parents.
Ms A states that he seemed unaware of any repercussions that might flow to Y and Z if he were to preference X because of his gender.
Section 60CC(3) (j) any family violence involving the child or a member of the child's family;
Section 4AB(1) of the Act defines family violence as:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
Section 4AB(2) includes the following examples of behaviour which may constitute family violence:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withhold in financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or preventing the family member from making or keeping connections with his or her family, friends or culture; or
(i) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.
The Act makes clear that the definition of family violence is not limited to these examples.
The incidents of family violence alleged by the wife include:
(a)The husband called her derogatory names such as “slut”, and “whore”, and told her that she had destroyed his life by trapping him into marriage;
(b)The husband accused her of only caring about herself and told her that anyone else would have given her a “couple of bashings” to teach her a lesson;
(c)On one occasion the husband grabbed her by the wrists and threw her on the bed;
(d)In an incident which appears to have been the precipitator for separation while the family was in Greece in mid-2013, the husband damaged her mobile phone while attempting to physically wrest it from her during an argument;
(e)The husband then changed the passwords on the family bank accounts so that the wife had no access to family funds, forcing her to seek assistance from a local lawyer and her parents;
(f)When the wife arrived back in Australia, the husband had changed the locks on the family home, leaving the wife and children without accommodation so that they were forced to live with the wife’s parents;
(g)At changeover after separation, the wife deposes that “the husband continually tries to intimidate me every time we see each other at changeover. He tells me that I cannot laugh or be happy in his presence.”;
(h)She believes that the husband has hired someone to follow her so that he is aware of her movements, and that he has purchased surveillance equipment for the same purpose. The wife’s evidence in relation to this allegation was that the husband knew that she was working part-time and that she had told no one outside her immediate family of that development.
The husband, in both his affidavit material and his oral evidence at trial, denies being the instigator of the conflict which occurred between him and the wife, which he acknowledges was sometimes physical. He specifically denies having her followed.
He blames her for the conflict between them, deposing in his affidavit sworn 27 September 2013 that:
Ms Vallas constantly puts me down by the way she speaks to me and makes me feel worthless and useless. I often feel undermined in my parenting and also bullied by her despite having done nothing to provoke her. On occasions when I have had to defend myself against her abuse I have reacted negatively because have been distressed and have spoken back to her.
He denies ever having physically assaulted the wife but alleges that she has assaulted him on several occasions. He deposes that “a number of times I grabbed Ms Vallas’ wrists to prevent her from hitting me”.
The husband impressed in the witness box as being somewhat defensive in relation to the allegations of family violence, and as feeling aggrieved by them. He accuses the wife of fabricating the allegations in a premeditated manner in order to further her position before the court.
The wife impressed as a generally honest and truthful historian who has gained insight into the impact of the above incidents on both her and the children’s emotional health.
There is however, one incident that concerns the Court in relation to the wife’s evidence.
Under cross-examination it was put to her that she had cancelled an appointment made with Child First after the child protection authorities had begun an investigation into her alleged mistreatment of X, an allegation which was later found to be unsubstantiated. She denied that she had ever been contacted by Child First or that she had cancelled an appointment with them until she was shown a letter from that agency addressed to her.
While one cannot be expected to remember every incident and event that happens during a marriage, especially one which is characterised by volatility, I find it unlikely that a major event such as the intervention of child protection authorities would be forgotten by a parent. It is therefore difficult to understand why the wife insisted that there had been no contact between her and Child First until incontrovertible evidence was placed before her.
Nevertheless, I find, on balance, that most of the incidents alleged by the wife occurred and that they are incidents of family violence under the Act.
Section 60CC(3) (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The wife obtained an intervention order against the husband on 11 February 2014. She deposes that the reason for obtaining that order was that the husband’s behaviour and conduct had caused her to feel intimidated and to fear for her safety. That intervention order was due to expire on 11 November 2014, but on 27 October 2014, on the application of the wife and with the consent of the husband, an interim intervention order was made extending the original order until further order. That matter was due to be heard in the Magistrates Court of Victoria at Ringwood on 12 January 2015 and the court is unaware of its outcome.
As far as the court is aware, at the time of writing this judgment, no findings had been made on that Application.
Section 60CC(3) (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 orders I propose to make will provide the children with stability and security, and will allow them to maintain regular and frequent contact with their father.
In those circumstances it is unlikely that further proceedings will be necessary.
Section 60CC(3) (m) any other fact or circumstance that the court thinks is relevant.
There is no other factor that the court considers relevant to the children’s best interests.
C. Is it in the children’s best interests for their surname to be changed to a hyphenated form of both parents’ surnames?
It is not unusual for children to have as their surname a hyphenated version of the surnames of each of their parents.
The wife in this case seeks an order permitting her to change X, Y and Z’s surnames to such a hybrid name.
She says that as she has reverted to her maiden name of (omitted), it would be more appropriate and less confusing for the children if that name is incorporated into their surname so that their surname would be “(omitted)-Vallas”.
The husband opposes that application, saying that it would be confusing for the children to have two Greek surnames and he does not see why such a course is necessary.
At trial, the husband said that if I were to make the order sought by the wife, he did not have a preference for which surname should be first in the children’s surname. However, in her closing submissions, counsel for the husband submitted that it would be more “acceptable” for the children’s surname to be “Vallas – (omitted)” than “(omitted)– Vallas”.
In those closing submissions counsel referred the court to the case of Chapman & Palmer [1977] FC 90-510 in which the Family Court gave guidance about the matters to be considered when a court is considering an application to change of name.
Those matters include the short and long term effects of any change in the child’s name, any embarrassment likely to be experienced by the child if its name is different from that of the parent with whom the child lives, any confusion of identity which may arise the child if his or her name is changed or is not changed, the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage, and the effect of frequent or random changes of name.
The court made clear that in considering these matters the “welfare of the child” must be the court is paramount consideration.
The wife will have sole parental responsibility for the children, albeit with an obligation to consult with the husband. She indicated to the court that she intends to revert to her maiden name.
In those circumstances, and taking into account the relevant matters set out in paragraphs 62 to 146 above, I find that it is in the children’s best interests for the Court to make an order permitting the wife to change the children’s surnames to “(omitted)-Vallas”.
However, as the husband has concerns about the wife’s sincerity in relation to promoting his relationship with the children, I will restrain her from dropping the name “Vallas” from their surnames.
D. What are the property interests of the parties and what is the value of that property?
It was agreed at trial that the assets of the parties are as follows:
· monies held in trust for both parties from the sale of the Property B property in the sum of $410,798.44 (say $410,800)
· proceeds of sale of the Property B property already distributed equally between the parties in the sum of $200,000
· the wife’s motor vehicle worth $13,500
· the husband’s motor vehicle worth $15,000
· the wife’s shares worth $5075
· the husband’s business worth $3000
· the wife’s jewellery and personal items which have not had a particular value placed on them, and
· monies in the sum of $23,800 which the husband removed from the parties (omitted) Bank account after separation.
That is, the total value of the parties’ assets is $671,175 plus the value of the wife’s jewellery and personal items.
The wife’s superannuation entitlements are worth $114,199 while the husband’s superannuation is worth $11,696, those sums also being agreed between the parties.
The liabilities of the parties are few, and the only real dispute about them is that the wife claims to owe her parents the sum of $10,000, being the sum they paid for her and the children to leave Greece shortly after separation in mid-2013.
It was further agreed that as a result of these proceedings the wife would retain the Property B sale proceeds already distributed to her, her motor vehicle, her shares, and her jewellery and personal items. The husband would retain the Property B sale proceeds already distributed to him, his motor vehicle, his business and the monies taken from the (omitted) Bank account.
That is, there is agreement that the wife will retain non-superannuation property worth $118,575 plus the value of her jewellery and personal items, while the husband will retain non-superannuation property worth $141,800.
Therefore, apart from the alleged debt owed by the wife to her parents, it is really the parties’ interests in the remaining sale proceeds from the Property B property and the superannuation entitlements which are the subject of dispute in these proceedings.
E. Is it just and equitable in all the circumstances to alter those interests?
This question arises from the terms of s.79(2) of the Family Law Act, which states that a court must not alter the property interests of parties to a marriage unless it is just and equitable to do so.
In Stanford v Stanford[3] the High Court stated that it is not a simple matter to decide what is just and equitable. At paragraph 36 of their judgment, their Honours stated:
The expression "”just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[3] Stanford v Stanford (2012) FLC 93-495
Nevertheless, said the High Court, once the property interests of the parties have been determined, the question of whether those interests should be altered is not to be answered by assuming that the court should do so simply because the parties were married. Such an answer must be based on sound legal principles with reference to the provisions of the Act.
The High Court went on to say, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
In Bevan & Bevan the Full Court said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan & Bevan [2013]FAMCAFC 116 paragraph 70
There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases”, and therefore I find that it is just and equitable to alter the property interests of the parties.
F. If it is just and equitable to alter those interests, what were the contributions of the parties to the property?
It is the wife’s evidence that at the beginning of her relationship with the husband in 2006 she owned an investment property in (omitted) which was subject to a mortgage, and a one third share in a property at Property P which she owned with her parents (“the Property P property”), that share also being subject to a mortgage.
At the beginning of the relationship, the wife says, the husband owned the property at Property B (“the Property B property”) which he had bought in 2004. That property was in need of extensive renovations and at the date of cohabitation was subject to a mortgage loan of $220,000.
The parties first lived together in the Property P property for two years with the wife’s parents. It is the wife’s evidence that while the parties lived in the Property P property the husband had no accommodation or living expenses and that he was therefore able to apply his income as he chose.
The wife deposes that in 2006 she sold the (omitted) property for a net gain of $200,000. $140,000 of those monies were contributed to renovations to the Property B property, which became the family home after the parties’ marriage in (omitted) 2007. The remaining $60,000 was applied to the mortgage on her share of the Property P property.
In April 2009, the wife and her parents sold the Property P property, the wife’s share of the net proceeds being $132,000. It is her evidence that she applied $100,000 to pay off the Property B property’s mortgage, $17,000 to pay capital gains tax on the sale of the Property P property, and the balance to family expenses.
It is the wife’s evidence that in addition to the capital lump sums she applied to the Property B property, she worked until X was born, and that the family lived on her salary while the husband’s income was applied, he said, to savings “for a rainy day or for (the parties’) retirement”. She deposes that after X’s birth family tax benefits were used for day-to-day living expenses, with some of those monies being deposited regularly into the children’s bank accounts.
In addition to her financial contributions, it is the wife’s evidence that once the children were born, she was the primary carer for all three children as well as performing the vast majority of household tasks from the beginning of the marriage.
She says that she does not know how the husband applied his income during the marriage, except to say that he was secretive about his finances. However, even though the mortgage on the Property B property was extinguished at around the time of X’s birth, it is unlikely that the family could have survived without the husband having applied significant amounts of his income to household expenses and to the children’s material and medical needs.
It is the husband’s evidence, found in his Affidavits of 27 September 2013 and 29 October 2014, that he purchased a property in Property S in November 2001 which he sold in 2005, the proceeds of that sale being applied to the mortgage over the Property B property.
However, nowhere in the husband’s Affidavit material does he specify either the purchase or sale price for the Property S property.
At trial, no mention appears to have been made of the Property S property at all and there were no documents tendered relating to its purchase and/or sale.
In counsel’s written submissions, there are several references to the husband having contributed certain monies from the Property S property sale proceeds to the Property B property, but that is not evidence.
It is therefore very difficult to precisely quantify the husband’s contributions to the Property B property from the sale proceeds of the Property S property.
The husband bought the Property B property in 2004 for a purchase price of $238,000. It is his evidence that he paid a deposit of $23,800 which was a gift from his family, and obtained a mortgage loan of $265,000, which assisted him to commence the renovations on the Property B property. He says that he applied a further $9,000 in cash towards the purchase price from his savings (although I can find no evidence of that payment) and $12,500 (again from his savings) to the stamp duty payable on the transfer. His further evidence, supported by bank statements, is that he made a lump sum payment of $20,000 to that mortgage on 7 April 2006.
It is his evidence that the renovations on the Property B property were completed shortly before the parties’ marriage in (omitted) 2007 and that that property was rented out for the next year or so while the parties lived at the Property P property.
He does not appear to have contributed any further lump sums to the parties’ property, although he deposes to having contributed unspecified sums of money and some of the labour to the renovations on the Property B property in the two years that he lived with the wife in the Property P property.
At trial he gave evidence that he had spent about $120,000 on the renovations by the time the parties began living together, although no corroborative evidence of that expenditure was provided.
The wife denies that the renovations to the Property B property were completed before the parties’ marriage and said that only the foundations and the walls had been completed at that time. She says that the remainder of the renovations were carried out during the marriage.
Because of other evidence given during the trial which relates to the credibility of the parties, where the wife’s evidence conflicts with the husband’s evidence on this particular issue, I prefer the evidence of the wife.
What all of that means arithmetically is as follows. The purchase price of the Property B property was $238,000 of which $23,800 was paid as a deposit. That leaves a shortfall of $214,200, of which the husband paid about $41,500 ($9000 plus $12,500 plus $20,000). The husband obtained a mortgage loan of $265,000, of which at least $172,700 ($214,200 - $41,500) must have been applied to the property’s purchase. There then remains $92,300. It is presumably this $92,300 which assisted the husband to begin the renovations to the Property B property, that $92,300 being part of the mortgage loan which was later paid off by the wife.
Therefore the quantifiable financial contributions to the Property B property can be set out as follows:
a)The wife provided lump sums of about $240,000.
b)The husband provided lump sums of $65,300 ($41,500 plus $23,800) plus whatever he spent on the renovations.
Given that the lump sums provided by the wife were applied to extinguish the mortgage over the Property B property it is difficult to see exactly where the proceeds of the husband’s Property S property have been applied.
However, what is clear is that significant renovations were undertaken at the Property B property during the relationship and the husband’s evidence at trial was that he spent $120,000 on those renovations. That evidence appears to be neither corroborated nor controverted by any other evidence, but from the description of the renovations by both parties it is clear that their completion would have come at considerable cost. What also appears clear from the husband’s evidence is that of that $120,000, about $92,300 came from the mortgage obtained over the Property B property, that mortgage being paid out by the wife during the marriage.
I therefore find, on the balance of probabilities, that the husband contributed the sum of about $27,700 ($120,000 minus $92,300) from his income/and or the proceeds of sale of the Property S property to the renovations on the Property B property. That brings his financial contributions to that property to about $93,000.
The proportions of those quantifiable financial contributions to the Property B property amount to about 72% to the wife and 28% the husband. Those proportions might be adjusted slightly to account for regular mortgage payments made before the mortgage was extinguished, and I am satisfied that a division of 70% to the wife and 30% the husband represents a fair statement of the parties’ financial contributions.
In terms of non-financial contributions, the husband’s evidence is that he contributed significant labour towards the renovations to the Property B property, that he cleaned the house and did the shopping while the wife was pregnant with X, and that he assisted her in the care of the children after their births.
The husband’s evidence also makes reference to “working in the yard” and taking the parties’ evidence as a whole it appears that he did make some non-financial contributions to the outdoor maintenance of the property.
In relation to his homemaker and parent contributions the husband is fairly vague, simply denying in his affidavit evidence that he did not help the wife. I note that the husband’s mother came from Greece to assist the wife immediately after the births of both X and the twins.
The wife’s evidence is much more detailed in relation to both her contribution and what she says was the husband’s lack of contribution to the homemaker and parent roles, and to the outdoors work.
Given that the husband was working full-time, that his mother was present to take care of the family’s immediate needs around the births of the children, and that the wife remained at home as a full-time homemaker and parent from shortly before the birth of the parties’ first child, where the evidence of the wife and the husband is at odds in relation to this particular issue I prefer the evidence of the wife.
Overall, I find that the husband’s significant labour contributions to the renovations and his performance of some outdoor maintenance tasks are balanced against the wife’s homemaker and parent contributions, and thus that the parties’ non-financial contributions to the property of the marriage and to the welfare of the family were roughly equal.
It is therefore my finding that the parties’ contributions to the acquisition, conservation and improvement to the property of the marriage should be apportioned 70% to the wife and 30% to the husband.
G. Should there be any adjustment made to the contribution-based entitlements of the parties by reason of the matters set out in s.75(2) of the Act?
Section 75(2) sets out 19 matters which the court must take into account when deciding whether it is appropriate to make orders in relation to spousal maintenance. Those matters are incorporated into property proceedings by way of s.79(4)(e) of the Act.
I shall discuss each of those matters which I consider to be relevant in this case in turn.
Section 75(2)(a) – the age and state of health of each of the parties.
The husband in these proceedings is 41 years old and the wife is 42.
The wife suffers from a chronic autoimmune deficiency condition which is likely to require treatment for the rest of her life. The husband does not dispute that the wife suffers from this condition.
The husband says that he has health problems including a back injury which causes him to suffer pain in his neck and shoulders, an eye condition and stress. I can find little, if any medical evidence produced by the husband to support those claims.
Section 75(2)(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.
The husband owns a car and some personal items and has superannuation entitlements of $11,696. He also claims a portion of the monies held in trust for the parties as a result of the sale of the Property B property[5].
[5] In the husband's response filed 30 September 2013 he seeks a 55/45 division of the sale proceeds (which at that stage had not yet been realised ) in favour of the wife. In his Outline of Case Document filed on 10 November 2014 he simply asks for an "equitable distribution of property as the Honourable Court deems just". In final submissions provided by counsel, the husband sought a 65/35 division in favour of the wife.
He is self-employed as a (omitted), but it is his evidence that his business has decreased in both volume and income since the parties separated in mid-2013, he says because of a deterioration in his health. He was receiving a Newstart allowance for at least part of the 2013-2014 financial year to supplement his income from his (omitted) business.
Under cross-examination at trial the husband conceded that while he preferred to receive payments for his business by cheque, he also received about $20,000 per year in cash which is apparently not declared to the Australian Taxation Office.
The husband’s tax return for the 2013 – 2014 year, tendered at trial, discloses an income from his (omitted) business of $37,063.64 with a net profit of $15,931.73. That tax return also discloses income to the husband of $6794 from “gross salary and wage income”, bringing his total taxable income to $22,725 when income of $12 from “other sources” is added.
His tax return for the 2012 – 2013 year discloses an income from the (omitted) business of $27,213.64 and a net profit of $9842.68. In that year the husband’s total taxable income was $10,343 including the net profit from his (omitted) business.
It was in that financial year that the husband travelled twice to Greece, once on his own for a period of two months, and once with the wife and their children, that being the holiday of several months which led to the parties’ separation in June 2013. It is difficult to see how such travel was possible on the income stated in the tax return when the wife was not working.
In the previous year the husband’s (omitted) business had an income of $138,357.62, with a net profit of $32,430.36. In that year the husband’s taxable income was $33,594.
On those figures there was a clear decline (roughly 80%) in the husband’s (omitted) business income between the 2011 – 2012 year and the 2012 – 2013 year, and then a significant recovery in the 2013 – 2014 year of about 36% on the previous year’s figures.
There appears to be a common phenomenon among self-employed tradespeople who experience relationship breakdown. That is, a business which has provided robust support for the tradesperson’s family over many years suddenly experiences a downturn in income coincident with the deterioration in the tradesperson’s relationship with his or her spouse.
That is what has happened in this case, and while there is no direct evidence of the husband deliberately minimising his income to advantage himself in these proceedings, I must say that I am sceptical about his evidence in relation to his allegedly diminished earning capacity.
The wife has worked casually since about mid 2014 but is primarily engaged as a full-time parent and homemaker and is in receipt of Centrelink benefits.
In her Financial Statement sworn and filed 29 October 2014, she declares gross income of about $50 per week from her work as a (omitted) in addition to income of $7 per week from her (omitted) shares, $7 in child support from the husband and Centrelink benefits of $741.
While her medical condition inhibits her ability to work full time, there appears to be little reason why she should not continue to work at least part time once all three children are at school.
In terms of financial resources, the wife has superannuation entitlements of $114,199 while the husband’s superannuation is worth $11,696.
It is the wife’s evidence, undisputed by the husband, that much of her superannuation entitlement was accrued before the parties’ relationship began, she having had $79,725 in superannuation entitlements of the commencement of the parties’ relationship. That means about $34,475, or about 30% of her entitlements, have been accrued since the commencement of the relationship.
The vast majority, if not all of the husband’s entitlements were accrued after the beginning of the relationship.
Section 75(2)(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 orders I propose to make in relation to the care of the children will result in the wife bearing the greater responsibility for their day to day care.
As I have already noted, X is 5½ years old and Y and Z are 4½. They will be financially dependent on their mother with the assistance of child support from their father for many years to come. I note that the father’s current child support payments amount to some $7 per week for all three children.
Section 75(2)(d) – commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain
Both parties must support themselves and the three children when they are in their care by way of providing housing, food, clothing, medical expenses, educational expenses and recreation and entertainment expenses.
Again, because the wife will have the majority care of the children with minimal child support from the husband, and particularly because of her own medical condition and Y’s heart condition, it is likely that the wife will provide the majority of that support.
There is no evidence that either party is obliged to support any other person.
Section 75(2)(f) – the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
I have already stated that the husband received a Newstart allowance for part of the last financial year and the wife is dependent on the Parenting Payment and Family Tax Benefit payments.
While both parties have some superannuation entitlements neither of them is currently eligible for a pension, allowance or benefit under their superannuation schemes.
Section 75(2)(g) – where the parties had separated or divorced, a standard of living that in all the circumstances is reasonable
It is almost impossible when parties separate for them to maintain the same standard of living as they enjoyed while the relationship was extant unless they each have significant incomes, which is not the case here.
The wife will have to find accommodation for herself and the three children to live in, and again I am conscious that her home will also be the children’s primary home.
At least for the short to medium future the wife is unlikely to be able to work full time and indeed the potential for her to find full-time employment in the long term is also uncertain. That would of course affect her capacity to provide a reasonable standard of living for herself and the children.
The husband, too, will have to find accommodation for himself which will accommodate the children when they spend time with him.
I have little doubt that he has the capacity to earn a living wage so that he, and the children when they are with him, will have a reasonable standard of living.
Section 75(2)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
I have already found that both parties contributed their income and other financial capital to their property albeit that the wife made by far the greater financial contributions.
In addition, by staying home and looking after the children of the marriage, the wife contributed to the husband’s earning capacity in the later years of the marriage.
Section 75(2)(k) – the duration of the marriage and the extent to which it is affected the earning capacity of the party whose maintenance is under consideration
The relationship and marriage between these parties was relatively short, lasting about seven years. While I have found that the wife has a lesser earning capacity than the husband, it is not primarily the duration of the marriage but her medical condition and full-time care of the children which has contributed to that situation.
Section 75(2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
While both parties will of course continue their roles as these children’s parents, I again consider that the need to protect the wife in that role is greater than the husband’s because the still very young children will reside predominantly with her.
Section 75(2)(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
It is the wife’s evidence, set out in her Amended Financial Statement sworn 24 January 2014, that at that stage the husband was paying $74 per week or about $321 per month in child support. According to her Amended Financial Statement that was the amount the husband was assessed to pay by Child Support Australia at that time.
In her financial statement sworn and filed 29 October 2014 the wife deposes that the husband has now been assessed as liable to pay only $7 per week or just over $30 per month.
That 90% decrease is the result of the dramatic drop in the husband’s declared income over that period. I have already expressed my scepticism about the husband’s reasons for that fall in his income.
If my scepticism is ill founded, and the husband is genuinely unable, both now and into the future, to provide the level of child support that he provided in January 2014, I must take that into account as a factor affecting the wife’s available income when considering her ongoing obligations to support the children.
If the husband has, as the wife alleges, manipulated his income in order to minimise his obligation to pay child support for his children, then it would display a cynical disregard for his children’s welfare.
Either way, it is common ground that the husband is paying only $7 per week in child support for his three children, which means that the wife will bear a greater financial burden for the children’s expenses than would otherwise be the case.
Section 75(2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The circumstances of the parties’ separation in late June 2013 whilst they were on holidays in Greece is a factor to be taken into account in any decision about whether the wife ought to be compensated for the extra costs she says she incurred in returning to Australia, those costs having left her with a $10,000 debt to her parents.
In late June 2013 the parties and the three children were staying with the husband’s mother at her home in the village of (omitted) on the island of (omitted). The wife’s evidence is that the parties’ relationship had been tense in the lead-up to this time and that the trip to Greece was a last ditch attempt to resolve issues between them and save their marriage.
It is common ground that on the morning of (omitted) June 2013 the parties were involved in an argument which resulted in the wife’s mobile phone being damaged, and which ultimately led to the parties’ separation later on that day.
The wife’s Affidavit evidence in relation to that day is that it had been agreed the day before that she, Y and Z would visit her parents in (omitted) on the island of (omitted). She deposes that the husband would not allow her to take X for fear of her leaving Greece with the children.
It is her evidence that on the morning of (omitted) June the husband withdrew his consent for her to take the twins to (omitted). During the argument that ensued, the wife told the husband that she had placed a caveat over the Property B property and he reacted angrily, attempting to wrest her mobile phone from her and damaging it in the process.
She deposes that the husband told her she would have to leave immediately, that he would take her to the departure point in the town of (omitted), and that under no circumstances would she be permitted to take the children with her. The wife further alleges that the husband made threats that he had called some of his relatives “to come over to intimidate me (one of whom is a bouncer)”.
The wife says that she asked the husband to take her to the main city square and drop her off because she did not want him to know where she was going.
She then withdrew the maximum daily limit of €400 from the bank, checked into a hotel and purchased a new mobile phone. Next she telephoned her parents in (omitted) and informed them of what happened. Her parents told her they would come to (omitted) the next day.
As the wife was attempting to change her bank details that day she discovered that the husband had changed the Internet passwords for their accounts, preventing her from accessing any further funds from the bank.
The wife deposes that she sought the advice of a local lawyer and that as a result, on (omitted) June 2013, she filed a criminal complaint against the husband with the local authorities in order to recover the children. The husband was arrested by the police and held overnight for questioning.
While the husband was in custody her solicitor drove her to the paternal grandmother’s home from where she collected the children, one suitcase and half the money the parties had with them, which amounted to $5000. She deposes that she could not find the children’s passports at that time as they had been hidden.
Her parents and she then took the children and left (omitted) for Athens by boat on that day. It is her evidence that she, her parents and the children then stayed in Athens for eight days as she tried to retrieve the children’s passports.
With assistance from the Australian Embassy she was able to discover that the husband had left Greece by air and after some difficulty, the embassy arranged for the children’s passports to be collected from the paternal grandmother and delivered to the wife by express courier. The wife was able to collect the children’s passports from the Australian Embassy on (omitted) July 2013.
It was a further month before the wife returned to Australia with the children, arriving on (omitted) August 2013. She gives no reason in her affidavit material as to why she remained in Greece for that month, although it is clear that she and the children stayed with her parents in (omitted) at that time.
In her affidavit evidence the wife deposes that the extra costs for her and the children in leaving (omitted) and going to Athens, staying in Athens, flying back to (omitted) to arrange their homeward travel, and then travelling back to Australia, amounted to some $20,000. At trial she said she was prepared to compromise that figure at $10,000. It was her evidence that she had borrowed that $10,000 from her parents and that she still owes them that debt. She seeks recompense for that debt in the property settlement resulting from these proceedings.
At trial the wife tendered a document on (omitted) Airline letterhead which showed that the flights for the wife and children from (omitted) to Athens and Athens to Melbourne had cost €4550. She gave further evidence that she had paid her lawyer on (omitted) €800 for her services and that she had had to pay for accommodation on (omitted) and in Athens (at least €860) as well as the boat trip to Athens (€500) and the flight from Athens to (omitted) (€700).
While there is no independent evidence for the accommodation and domestic travel costs, they appear reasonable on their face and the wife’s evidence about them was not shaken at trial.
The husband’s evidence is that on the evening of (omitted) June 2013 he had found evidence on the wife’s mobile phone that indicated that she may have been recording conversations and arguments she had had with him, and including counselling sessions that he and the wife had attended.
The husband deposes that he felt that his privacy had been violated and that he had been “set up”. He says he did not confront the wife with his new-found knowledge on that evening.
Contrary to what the wife says, the husband deposes that on the morning of (omitted) June 2013 he suggested to the wife that both parents and all three children should travel to (omitted) to visit her parents but that the wife refused. He deposes that it was the wife who then suggested that she take the twins and leave X with him.
It was then, he says, that the wife disclosed that she had placed a caveat over the Property B property. The husband says that while he was shocked he is “adamant that I did not argue with her”. He says that he was concerned that she was planning to leave Greece with the children and that he had wished her to remain in Greece so that they could resolve their marital problems.
On either party’s evidence, it is clear that the marriage had been in trouble for some time at that point and that little trust remained between them.
The husband’s evidence is that it was at the wife’s request that he drove her to (omitted) and left her at the town square.
He deposes that the wife had had him taken into custody “without cause”, and that he had been contacted by the Australian Embassy as he was about to board a plane for Australia. He says that he told the embassy officials that the children’s passports had not been hidden and were in a suitcase at his mother’s home.
In relation to the complaint the wife made to the authorities in (omitted) the husband says this[6]:
…..(the wife) had initially made an affidavit of criminal complaint before the public prosecutor in (omitted), Greece so as to obtain a temporary custody order and to have me charged and incarcerated with criminal offences. These allegations related to me allegedly perpetrating domestic violence and alleged harm to the children. Despite the seriousness of these allegations Ms Vallas however did not exercise her option of continuing this to a formal court hearing and hence she did not obtain this temporary custody order. Instead the children were removed by Ms Vallas’ solicitor and Ms Vallas and in a violent manner without any such orders. Ms Vallas and her solicitor forcefully entered my mother’s home without invitation or right and removed the children.
I have now filed a complaint in Greece against Ms Vallas for false incarceration and her solicitor for illegally removing the children from my care/my mother’s care without formal (even temporary) custody orders.
[6] The affidavit of the husband sworn 27 September 2013 and filed 30 September 2013, paragraphs 35 and 36.
He deposes that he believes that the wife intends using the statement she made to the Greek authorities as evidence against him in these proceedings so as to limit the time he spends with the children. He alleges that the actions of the wife and her lawyer in removing the children from his mother’s home caused the children “psychological harm and distress” and “placed them at risk”.
The husband “absolutely denies” that he deliberately withheld the children’s Australian passports while they were in Greece necessitating the involvement of the Australian Embassy for them to return to Australia.
At trial the husband said that he had bought himself a one-way ticket back to Australia after he had been released by the authorities in (omitted), and that the wife had return tickets for her and the children but that those tickets were for late August 2013. It was his evidence that those tickets could not be changed and that the parties had lost the money they had spent on them.
It was the husband’s further evidence that the wife and her parents had planned and organised the entire situation which led to the parties’ separation before the parties had left Australia.
Given the circumstances, it is difficult to see what advantage the wife would have obtained by such a plan and I do not give any credence to the husband’s evidence in that regard.
Annexed to the wife’s trial affidavit sworn and filed 29 October 2014 is a statement in Greek signed by Ms A, the lawyer who the wife consulted on (omitted) June 2013. That statement has been translated into English by a translator accredited by the (Australian) National Accreditation Authority for Translators and Interpreters.
While that statement is not sworn evidence, Ms A describes the significantly distressed state in which the wife presented at her office on that day, and it is clear that what the wife told her at that time is very similar to the evidence she has given to this court in relation to the way she was treated by the husband throughout the marriage and about the events of the previous twenty four hours. What is also clear from the statement is that Ms A believed what the wife told her about events immediately preceding their meeting.
It is common ground that the husband was held overnight by the local police in (omitted) after the wife complained to them that he had perpetrated acts of family violence against her, and that he was holding the children and preventing her from taking them.
As a result of her genuinely held fear of the husband, who, I note, was in the familiar environment where he had grown up, while she was in an unfamiliar environment, she took the children and removed them to what she saw as a safer and far less stressful environment for them and for her.
In doing so, she incurred costs which she quantifies at $10,000, and I find that on the evidence before me it is more probable than not that those costs were incurred as a result of the actions of the husband.
The costs incurred by the wife might be categorised as costs of separation, and therefore it is just and equitable in my view that the parties share those costs. I note in that regard that the wife does not claim any of the costs incurred in remaining in Greece for a further month after she obtained the children’s passports.
Therefore, in making final orders, I will allow for $10,000 from the monies held in trust for the parties to be paid to the wife’s parents as repayment of her debt to them before any further distribution of those monies is made.
The remaining factors set out in s.75(2) relate to financial agreements that are binding on the parties, and as there is no such agreement in evidence in this case I do not need to consider them.
When I consider all the relevant factors of those set out in s.75(2), and especially those relating to the wife’s health, earning capacity and care of the children, and the husband’s inability or unwillingness to pay significant child support, and balancing those factors against the wife’s greater superannuation entitlements, I find that a further adjustment of ten percent in favour of the wife would be appropriate.
That means that overall, the available property of the parties ought to be divided as to eighty percent (80%) to the wife and twenty percent (20%) to the husband.
The $10,000 incurred by the wife in retrieving the children and their passports, and in their travel and accommodation at the time of separation, will be taken from the monies held in trust for the parties before any further distribution of those monies.
H. In light of those findings what orders should be made to produce a just and equitable property settlement between the parties?
If the $10,000 owed to the wife’s parents is removed from the asset pool, the remaining net assets are worth $661,175.
80% of $661,175 is $528,940 and 20% of the same amount is $132,235.
Therefore the result of this settlement should be that the wife retains $528,940 worth of assets and the husband retains $132,235 worth of assets.
The wife already has the following assets:
· monies already distributed to her $100,000
· her car $13,500
· her shares $5075
a total of $118,575 worth of assets.
The husband already has following assets:
· monies already distributed to him $100,000
· his car $15,000
· his business $3000
· (omitted) Bank monies $23,800
a total of $141,800 worth of assets.
Therefore the wife should receive further assets worth ($528,940-$118,575), or $410,365 and the husband should receive further assets of ($132,235 - $141,800) or $-9565. That is, for the wife to retain 80% of the overall assets, she would retain the whole of the monies remaining in trust after the payment to the wife’s parents, and the husband would have to pay the wife the sum of $9565.
However, there is disparity between the parties’ superannuation entitlements. If I take the accumulation of the wife’s superannuation during the relationship and marriage to have been $34,474 (see paragraph 222 above), then the total superannuation of the parties accumulated during the marriage and relationship is $46,170. It would be a fair and just outcome in my view if those superannuation entitlements were to be equalised between the parties. That is each would be left with $23,085 of the superannuation entitlements they have accrued during the relationship and marriage.
In order to achieve that outcome there would have to be a superannuation split from the wife to the husband of $11,389 ($34,474 - $23,085).
The wife is already “owed” $9565 from the asset division set out above. Therefore, in order to achieve an 80/20 division of assets and a 50/50 division of superannuation entitlements accrued during the marriage, the wife would need to pay the husband the sum of $1824 ($11,389 -$9565) - say $1825.
Rather than order a superannuation split in the sum of $1825, I will make an order providing for that sum to be paid to the husband from the wife’s share of the monies held in trust, together with a half share of any interest earned on top of the $410,800 which was held in trust at trial.
That would leave the wife with $517,550 worth of assets ($498,975 of the proceeds of sale of the Property B property, her car worth $13,500 and her shares worth $5075), plus half of any interest accrued on the monies held in trust, and all her superannuation entitlements.
The husband would retain $143,625 worth of assets ($101,825 of the proceeds of sale of the Property B property, his car worth $15,000, his business worth $3000 and the $23,800 he removed from the (omitted) Bank account), plus half of any interest accrued on the monies held in trust, and all his superannuation entitlements.
Conclusion
Therefore the ultimate property settlement in this matter may be described as follows:
(a)$10,000 of the monies held in trust will be paid to the wife’s parents
(b)the wife will retain:
·$100,000 of the monies held in trust already distributed to her
·$398,975 of the remaining monies in trust
·her car worth $13,500
·her shares worth $5075
·her jewellery and personal items as claimed from the husband but not quantified
·half of any interest accrued on the monies held in trust (ie half of any monies remaining after the original $410,800 has been distributed)
(c)the husband will retain:
·$100,000 of the monies held in trust already distributed to him
·$1825 from the remaining monies in trust
·his car worth $15,000
·his business worth $3000
·the $23,800 he withdrew from the parties’ (omitted) Bank account
·half of any interest accrued on the monies held in trust (ie half of any monies remaining after the original $410,800 has been distributed).
Otherwise the parties will retain what they already have in their possession.
I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 17 April 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Negligence & Tort
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Injunction
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