Velk and Velk
[2013] FCCA 1094
•15 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VELK & VELK | [2013] FCCA 1094 |
| Catchwords: FAMILY LAW ─ Whether child should spend equal time with each parent ─ how property should be adjusted. |
| Legislation: Family Law (Superannuation) Regulations 2001 |
| Stanford v Stanford [2012] HCA 52 Hickey [2003] FamCA 395, [2003] FLC 93-143 Coghlan [2005] FamCA 429, [2005] FLC 93-220 |
| Applicant: | MR VELK |
| Respondent: | MS VELK |
| File Number: | DGC 1303 of 2012 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 16 & 17 May 2013 |
| Date of Last Submission: | 17 May 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 15 August 2013 |
REPRESENTATION
| The Applicant: | Appearing on their own behalf |
| Counsel for the Respondent: | Ms Lane |
| Solicitors for the Respondent: | Clancy & Triado |
ORDERS
That previous parenting orders regarding the child of the marriage X born (omitted) 2004 (“the child”) be discharged save and except paragraphs 1 and 2 of the orders of the court dated 12 June 2012, being the restraint from removing the child from the Commonwealth of Australia and the Watch List Order made until further order which remain in full force and effect.
That the parties retain equal shared parental responsibility for the child.
The said child live with the wife.
That during school term, the husband spend time and communicate with the child as follows:
(a)Alternate weekends from 3.30pm or the conclusion of school on Friday until 9.00am or the commencement of school the following Tuesday;
(b)In the alternate week from 3.30pm or the conclusion of school on Monday until 9.00am until the commencement of school on Tuesday; and
(c)By telephone each Thursday with the husband to initiate the call between 6.30pm and the call to last no longer than 15 minutes.
That the husband spend time and communicate with the child on holidays and special occasions as follows:
(a)For half of all school term holidays as agreed and failing agreement, for the first half in 2013 and each odd year thereafter and the second half in 2014 and each even year thereafter;
(b)For one half of the end of year Christmas holidays on a “week about” basis;
(c)From 12 noon Christmas Day until 12 noon Boxing Day in 2013 and each alternate year thereafter;
(d)From 12 noon Christmas Eve until 12 noon Christmas Day in 2014 and each alternate year thereafter;
(e)For (omitted) Easter Sunday from 9.00am until 4.00pm unless this is the same day as (omitted) Easter Sunday in which event such time occur from 9.00am until 1.00pm;
(f)From 3.30pm until 6.30pm on the child’s birthday if this is a school day or from 9.00am until 1.00pm on the child’s birthday should this fall on a non school day;
(g)From 9.00am until 6.00pm on Father’s Day;
(h)By telephone each Tuesday with the husband to initiate the call between 6.30pm and the call to last no longer than 15 minutes; and
(i)As may be further or otherwise agreed.
The husband’s time be suspended and the child be with the wife as follows:
(a)The husband’s time pursuant to subparagraphs 4(a) and 4(b) be suspended for all school holiday periods;
(b)From 9.00am until 6.00pm on Mother’s Day;
(c)From 12 noon Christmas Day until 12 noon Boxing Day in 2014 and each alternate year thereafter;
(d)From 12 noon Christmas Eve until 12 noon Christmas Day in 2013 and each alternate year thereafter;
(e)From 3.30pm until 6.30pm on the child’s birthday if the child is with him and it is a school day and from 9.00am until 1.00pm if not a school day;
(f)From 9.00am until 6.00pm on (omitted) Easter Sunday unless this coincides with (omitted) Easter Sunday in which event the husband’s time be suspended from 1.00pm until 6.00pm; and
(g)As may be further or otherwise agreed.
That at the conclusion of school holidays, the time provided for at paragraph 4 recommence as though the school holidays had not intervened.
That each party be authorised to obtain copies of all school reports and notices from the school and to attend parent/teacher interviews, school plays, concerts and sporting events and like occasion’s parents are invited to attend.
Each party keep the other informed of any significant illness or injury suffered by the child as soon as practicable by phone or text.
In the event either party proposes to holiday interstate with the child they advise the other and provide the other with the contact details and dates of travel for the child at least 7 days prior to departure.
PROPERTY ORDERS
That within 90 days of the date of this order (“the due date”) the husband:
(a)Pay to the wife the sum of $614,472 (“the payment”); and
(b)Discharge the mortgages secured against the real properties known as and situate at Property D in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the (omitted) property”) and Property W in the State of South Australia being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the (omitted) property”) and release the wife from any liability in relation thereto.
That contemporaneously with the husband’s compliance with paragraph 11 hereof, the wife sign all documents and do all things to transfer to the husband, at the expense of the husband, all of her right, title and interest in the Property D property and the Property W property.
In the event that the husband does not make the payment by the due date, the parties forthwith sign all documents and do all things to list each of the Property D property and the Property W property for sale as set out below:
Sale of the Property D property;
(a)The selling agent be as agreed between the parties within 7 days of the date of these orders and failing agreement, the husband nominate three potential selling agents and then within 7 days the wife choose a selling agent from the husband’s list;
(b)The parties follow all reasonable recommendations of the selling agent as to method of sale and reserve price for the sale;
(c)That upon the completion of the sale the proceeds of the sale be applied as follows:
(i)Firstly to pay the costs, commissions and expenses of the sale;
(ii)Secondly to pay the mortgage secured against the former matrimonial home;
(iii)The remaining proceeds be divided between the parties 65% to the wife and 35% to the husband.
Sale of the Property W property:
(a)The selling agent be as agreed between the parties with 7 days of the date of these orders and failing agreement, the husband nominate three potential selling agents and then within 7 days the wife choose a selling agent from the husband’s list;
(b)The parties follow all the reasonable recommendations of the selling agent as to method of sale and reserve price for the sale;
(c)That upon the completion of the sale the proceeds of the sale be applied as follows:
(i)Firstly to pay the costs, commissions and expenses of the sale;
(ii)Secondly to pay the mortgage secured against the South Australian property;
(iii)Thirdly a sum sufficient to pay any Capital Gains Tax (CGT) payable on the sale of the property be set aside and held in an interest bearing trust account by the wife’s solicitors, with the parties to do all such things as may be required to cooperate to have an accountant determine the quantum of funds to be quarantined;
(iv)The remaining proceeds be divided between the parties 65% to the wife and 35% to the husband; and
(v)If, when the CGT becomes payable, there is any shortfall then the parties are to contribute in equal shares and if there is any excess it is to be divided in accordance with the percentages of 65% to the wife and 35% to the husband.
The Volkswagen (omitted) be transferred to the wife’s name and the Holden be transferred to the husband’s name at the husband’s expense.
That the base amount to be allocated to the wife out of the interest of the husband in the (omitted) Superannuation Plan (“the Plan”), a sub-plan of the (omitted) Superannuation Fund, pursuant to s.90MT(4) of the Family Law Act 1975 (Cth) is $93,506.
That pursuant to s.90MT(1) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the husband in the (omitted) Superannuation Plan (“the Plan”), a sub-plan of the (omitted) Superannuation Fund, the Trustee of the said superannuation fund ((omitted) Pty Ltd) shall:
(a)Pay to the wife or her legal personal representative the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $93,506; and
(b)Make a corresponding reduction in the entitlement that the husband would have had but for these orders.
That order has effect from the operative time.
That the operative time for the purpose of these orders is the fourth business day after an Original Certified Copy of the sealed order is served on the Trustee.
The husband continue to pay the mortgage over the former matrimonial home and the mortgage and all outgoings on the South Australian property pending final settlement of the sale of each property.
That unless otherwise specified in this agreement and save for the purposes of enforcing this agreement due under these or 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 each party as at the date of these orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife;
(b)Monies standing to the credit of the parties in any joint bank account (save and except accounts or offset accounts associated with the parties’ mortgages) are to become the property of the husband and are to be closed within 21 days;
(c)Insurance policies remain the sole property of the owner named thereon;
(d)Each party 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)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 Velk & Velk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1303 of 2012
| MR VELK |
Applicant
And
| MS VELK |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Velk, the husband, and Ms Velk, the wife, have one child X born (omitted) 2004. The husband proposes that X spend equal time with each parent. The wife proposes that X live with her and spend five nights per fortnight with the husband as well as for half of school holiday time and on special occasions. The husband proposes that the parties’ non-superannuation assets be divided 45% to him and 55% to the wife. The wife proposes they be divided 30% to the husband and 70% to her. Both propose an equal division of superannuation.
The wife was born on (omitted) 1968 and the husband on (omitted) 1968. The wife is 45 and the husband 44. The parties married and commenced living together on (omitted) 1993. They lived first in South Australia. In late 1997 the wife moved to Victoria for work and the husband followed in early 1998. The wife studied a (omitted) course in the 1980s then worked in the (omitted) industry. In 2001 she was working as a (omitted). She ceased work prior to the birth of the child in (omitted) 2004. The husband has a degree in (omitted) completed in the 1990s. He is a qualified (omitted) employed in (omitted).
In Victoria the parties first lived in (omitted). They purchased Property D, in 2001 and moved in on 8 July 2001. They lived together in Property D until separation in February 2012. The husband then moved to South Australia for three months and did not see the child although he communicated with her. He returned in May 2012 and saw the child while she was in hospital but did not see her again until orders were made on 12 June 2012. Since separation the mother and the child have continued to live in the former matrimonial home.
This proceeding was commenced by the husband on 4 May 2012. Interim orders made by consent on 12 June 2012 provide for the parties to have equal shared parental responsibility for the child, for the child to live with the wife and spend time with the husband on alternate weekends from the conclusion of school Friday to the commencement of school Monday and from the conclusion of school on Wednesday until the commencement of school Thursday each alternate week. An order on 13 March 2013 provides for the additional time of half school holidays.
Children’s provisions
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that the child’s best interests is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
Both parties propose an order that the parents have equal shared parental responsibility for the child. The parties agreed to such an order on 12 June 2012 and there is nothing in the evidence that suggests such an order should not be made. The parties can cooperate to the extent necessary to make decisions about major long-term matters. The relevant ones are likely to be schooling, religion and major medical matters.
If the court makes or intends to make an order for equal shared parental responsibility, s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are set out in s.65DAA(5).
Best interest considerations
Ms S prepared a family report. Her recommendation is the child live with the wife and spend five nights a fortnight with the husband, alternate weekends from after school Thursday to the start of school Monday and alternate Thursdays from after school to the start of school Friday. She recommends half school holidays and time on special days and communication by telephone at least one evening each week at a set time.
Ms S observed the child with each parent. She observed that X was pleased to see the father. The child made eye contact with the father and was smiling. She played a game with him and did a puzzle. Ms S describes the child as very confident, relaxed and comfortable with the father.
Ms S describes the child as confident with her mother, smiling and making eye contact. The child was relaxed and comfortable and the mother was attentive, appropriate and caring.
Each parent acknowledges the child's affection for and relationship with the other parent. The first of the primary considerations, the benefit to the child of a meaningful relationship with each parent, will be satisfied by either party’s proposal.
There is no evidence relevant to the second of the primary considerations, the need to protect the child from harm.
The first of the additional considerations is the child's views bearing in mind the child's age and maturity. Ms S says that the child is of the view that the shared care week about arrangement would be good; that it would be fair to the father and the mother. Ms S says that when children of this age are caught in the middle of separated parents in conflict they usually manage this conflict by being loyal to each parent. Ms S says that young children are unable to choose between their parents and they should not be placed in such a situation as it puts far too much pressure on them. The child's views must be given less weight as a consideration for these reasons.
The next of the additional considerations is the child's relationship with each parent. The extent to which the husband cared for the child while the parties were together is disputed. The wife says that he left early for work and was often socializing in the evening. In 2006 he studied for his (omitted) part-time for 2 to 3 years. She says he was sometimes away interstate. She says that in 2011, the period prior to separation, he was away from Victoria for 118 days.
The husband says that his work was such that on some days he was working from home. The wife was studying prior to separation and he says he had much of the care of the child. The husband acknowledges he was interstate in 2011 but says it was only for 65 days.
I do not need to resolve the dispute about the number of days the husband was away interstate in 2011. 65 days is an average of little over once a week. There is no doubt that he was working full time and he acknowledges a regular Thursday night social game of soccer. The wife described her study times as only a few hours each week. After separation the father did not see the child for three months and only commenced having the child spend time with him four nights each week after orders were made in June 2012. He did not see the child for a time over the summer 2012/2013 holidays because of a dispute between the parents, or at least lack of agreement whether there should be holiday time. I find that the major part of the care of the child has been carried out by the wife and that while the child has a significant attachment to her father her principal attachment is to her mother.
Ms S’s opinion and recommendation is relevant to a number of the best interests considerations. She recommends against equal time. She assessed both parties as very appropriate, caring and responsible parents with the capacity to meet the intellectual needs and day-to-day emotional needs of the child. She said there is a high level of conflict between them albeit a constrained conflict with the parents being able to contain the conflict in front of X. The evidence of each party shows that the conflict continues.
Evidence of the conflict is the parties’ inability to reach agreement about the child spending time with the father. After separation the mother, through solicitors, proposed that the father spend time with the child on alternate weekends. The father sent much correspondence including to the child. Two weeks before Easter the father sent a letter asking that the child spend time with him in Adelaide during Easter. The mother says she did not have enough notice and she was concerned about the father taking the child from Melbourne when he had not seen her since February.
Christmas and the 2012/2013, summer holidays presented difficulties. The mother says that in late October the father advised her that he would be in Melbourne for Christmas. A few days later he said he was planning to be in Canberra and shortly after the mother says he agreed to Christmas in Adelaide but a few days later the child told her mother she was going to Canberra at Christmas. The father acknowledges discussions about both Adelaide and Canberra. Ultimately, the child spent time with both parents at Christmas in Adelaide.
Ms S recommends that the parties share parental responsibility. She says that a shared living arrangement, which I understand to mean the child spending equal time with each parent, is different to shared parental responsibility. With joint responsibility for making decisions, the parties may need to attend mediation to discuss, negotiate and resolve those issues. But for shared living arrangement this becomes difficult with day-to-day issues. Ms S says that for a child to live week about, parents need to have effective communication and be prepared to work together in the parenting relationship. She said that in addition both parents need to be committed to a shared care arrangement as otherwise thoughtful information about the child's schooling and day-to-day school requirements and needs are not passed on resulting in the child missing out and suffering.
Ms S contrasted the husband’s view that the cared arrangement will work with the mother's view that it would not. With opposing views about such an arrangement Ms S says in practice it would be unlikely for this to work.
Ms S said that the child should live with the wife as this was how it had been since separation. Rather than the child experience such a major change it is best for her emotionally if matters remain constant. Overall, under the consideration of the child's relationship with each party, Ms S sees the mother as the principal carer.
Ms S's opinion on this point is relevant to the consideration of the effect on the child of any change in the child’s living circumstances. The expert evidence is that a change in living arrangements from being principally cared for by the mother to spending equal time with each parent might adversely affect the child. This, too, is the mother's view. The father's approach is that seven nights with him is little different from five nights with him. This approach does not appreciate that it is not just a matter of the amount of time, but how it affects the child's relationship with each party. The child's life, particularly since separation, has been one of being principally cared for by the mother. I accept the expert evidence of Ms S that the change is undesirable.
There is some evidence which suggests that the husband is more inclined to focus on himself rather than the interests of the child. In February 2013 the father and the child had a telephone conversation. The father says that in that conversation the child asked him to pay for her basketball team membership. The father says he was annoyed that the request was being conveyed through the child and told the child that she would be stopping basketball. The mother says that the child did not ask for payment but the father acknowledges that he did say to the child she would be stopping basketball. He thought better of it and told her soon after that she would not be stopping.
The child enjoys basketball and it must have been upsetting to her to have the father say she would not be playing even though he reversed that decision soon after. The father's stated reason had nothing to do with his relationship with the child. His annoyance was with the mother.
On 17 April 2013 the child was left at school when she expected to be collected by the father. On 25 March 2013 the wife’s solicitors wrote to the husband setting out their understanding of the dates the child would be spending with the husband pursuant to the interim orders. This included the forthcoming school holidays.
The letter nominated Wednesday, 17 April 2013, the first Wednesday of the second school term, as the first of the Wednesday night to Thursday morning overnight times and the second weekend of the school term as the first of the alternate weekend times. The husband responded that this was not the correct interpretation of the order and that the child should spend time with him for the first weekend. The result was that the mother expected the child to be collected by the husband, he did not and the school telephoned the mother saying that the child had not been collected by the father. The mother then collected the child from school.
In subsequent correspondence the husband said he intended bringing a contravention application and said that it would be better if he did not see the child again until things were resolved at the final hearing in May 2013. He did in fact continue seeing the child.
Unfortunately the interim orders did not contain a mechanism for re-commencement of term time after school holidays. I do not need to decide which party had the correct interpretation. Probably both can be criticized for the child being placed in a situation where she was left at the school. However, the husband's reaction of contemplating, and advising he was contemplating a contravention application and stating that he would not see the child until the final hearing shows a lack of understanding of the needs to the child. Presumably he did contemplate at the time of writing the letter not seeing the child for some time. This was not in the child's interests. Nor was it in the child's interests to further aggravate the situation between the parents by referring to possible contravention proceedings.
These episodes are relevant to considerations of the ability of each parent to care for the needs of the child including emotional and intellectual needs and the parents’ attitude to the responsibilities of parenting. Overall both parents are well able to care for the child and clearly love her and want to do the best for her. Nevertheless there have been two occasions when the father has allowed his annoyance with a particular situation to behave in a way upsetting to the child.
Other than that the child is a nine-year-old girl there are no other best interest considerations which are relevant.
The reasonably practicable considerations for equal time are contained in s.65 DAA(5) of the Family law Act 1975 (Cth). The first is satisfied because each party’s residence is near to the other.
The second and third considerations are the current and future capacity of the parties to communicate and the ability of the parties to implement the arrangement and communicate with each other to resolve difficulties that might arise in implementing the arrangement.
Ms S concludes that the parties do not have that ability because of the conflict between them. The description already given of their inability to reach agreement about times outside the court ordered times and to agree on resumption of the court ordered weekend times after holidays demonstrate this inability to cooperate.
Significant mistrust exists between the parties. The wife believes that the husband in recent times has been attending at her home at night and tapping at the window or making other noises and that he made a nuisance telephone call. The husband denies each of the allegations. I do not need to make a finding. The fact that the wife makes the allegations and apparently believes them shows the extent of her distrust of the husband.
The dispute between the parties about January holiday time has already been referred to. The wife says she was attempting to make some alternative arrangements. The husband says that the alternative weekend times under the order should have continued. At one stage he arrived at the wife's house when she and the child were not home. He parked in the driveway and closed the gates behind the car. The wife alleges that he entered the house, something the husband denies. I do not need to decide whether that happened. The wife and child arrived home soon after. Police were telephoned. The episode illustrates the difficulty of communication and the inability of the parties to communicate and make arrangements in relation to the child. They would not be able to satisfy the second and third of the reasonably practicable requirements.
The fourth of the reasonably practicable requirements is to consider the effect on the child. Ms S's opinion that equal time would adversely affect the child has been discussed already. I accept what Ms S says.
Overall, equal time is not reasonably practicable.
The child's best interests are served by the mother's proposal that the child live with the mother and spend five nights each fortnight with the father. Except for the child’s stated view that equal time would be fair to each parent, the evidence for all the relevant best interests considerations points towards the child living with her mother. The child’s views carry limited weight for the reason Ms S gives. The mother has been the child’s primary carer and is the one best suited to provide for the child's needs. A change now is undesirable. The father’s stated view that seven nights a fortnight is not much more than five nights a fortnight shows his lack of understanding for the needs of the child and is probably an illustration of his tendency to focus on himself rather than the child.
The mother's proposal that the husband spend five nights a fortnight with the husband, which includes school days and non-school days, half school holidays and on special occasions satisfies the requirements for substantial and significant time.
Property provisions
Section 79(1) of the Family Law Act 1975 (Cth) provides that in property settlement proceedings the court may make such order as it considers appropriate. The following sub-sections set out the considerations the court is to take into account in deciding what is appropriate. Prior to the decision of the High Court of Australia in Stanford v Stanford [2012] HCA 52 this was a four step process. First, determine what are the assets and liabilities of the parties, next consider the parties’ contributions taking into account the matters in s.79(4)(a)-(c), next consider whether an adjustment should be made taking into account the matters referred to in ss.79(4)(d), (f) and (g) and s.75(2) insofar as they are relevant, and finally consider whether in all the circumstances it is just and equitable to make the proposed order[1]. The four step process was usually applied to superannuation and non superannuation assets separately, but there are cases where this may not be appropriate.[2] The decision in Stanford v Stanford [2012] HCA 52 means that the four step process must to be modified. The court must identify the matrimonial property and the legal and equitable interest of each party in the property applying normal principles. That presents no difficulty in this case because the parties agree upon the identity of the property.
[1] Hickey [2003] FamCA 395, [2003] FLC 93-143.
[2] Coghlan [2005] FamCA 429, [2005] FLC 93-220
The court must determine, as required by s.79(2) whether it is satisfied that in all the circumstances it is just and equitable to make an order. In this case the parties have separated, the separation is permanent, and both parties apply for the court to make an order. The basis upon which they lived together with their child in one of the principle assets, the former matrimonial home, and shared their finances is gone. It is just and equitable to make an order for division of property in accordance with the provisions of s.79.
The appropriate way then to proceed is to undertake the second and third steps of the four step process, contributions and possible adjustment, and then again consider whether the proposed order is just and equitable. Stanford v Stanford [2012] HCA 52 has not affected the earlier decisions concerning the separate treatment of superannuation and non-superannuation property.
Assets
The major assets are the former matrimonial home at Property D, Victoria, an investment property at Property W, South Australia and superannuation. Except for the value of motor vehicles the matrimonial assets and liabilities are agreed. Each party has a small amount of money in bank accounts which can be ignored.
The only valuations of motor vehicles are those contained in the parties affidavits and financial statements. The motor vehicles are a Volkswagen (omitted) registered in the husband's name and a Holden registered in the wife's name. The parties are agreed that the wife retain the Volkswagen, the husband the Holden and that there be a transfer of registration in each case.
The husband values the Volkswagen at $28,000 and the Holden $2,000. The wife values the Volkswagen at $20,000 and the Holden at $5,000. I will use the lower valuation in each case, $20,000 for the Volkswagen and $2,000 for the Holden.
The matrimonial assets and liabilities are:
Non-superannuation assets
Property D, Victoria $ 710,000
Property W., South Australia $ 415,000
Volkswagen $ 20,000
Holden $ 2,000
Total $1147,000
Liabilities
Mortgage over Property D $ 57,683
Mortgage over Property W $ 98,206
Total $ 155,889
Net assets $ 991,111
Superannuation
Husband's (omitted) Superannuation $ 195,787
Wife's (omitted) Superannuation, $ 8,776
Total superannuation $ 204,563
Contributions
When the parties married and commenced living together on (omitted) 1993 the husband owned a property at (omitted), South Australia. At the time of the marriage the property was mortgage free. He purchased it in 1989 for $48,000 and sold it in March 1994 for $52,500. After payment of selling expenses the net amount he received was $49,168.
The wife had $20,000 in savings when the parties married and commenced living together. Some of the money was used for living expenses. After the wedding the parties travelled and worked overseas for 12 months and some of the wife's savings were used for this purpose. Thus, the initial financial contributions by each party at the commencement of the marriage were about $50,000 by the husband and $20,000 by the wife.
The funds from the sale of the (omitted) property were put towards the purchase of Property W, South Australia. It was purchased for $130,000 and the balance was financed by a loan from the (omitted) Bank. The property at Property D was purchased in 2001 for $212,000. The purchase was financed by borrowing including an increase in the mortgage on the South Australia property.
Both parties were employed at the commencement of their relationship. The evidence does not show their incomes. They both worked full-time until the birth of their first child. The wife worked in the (omitted) industry and when she ceased working she was a (omitted).
The parties moved to Victoria 1997. The husband studied and is a qualified (omitted) and now has a (qualifications omitted). Prior to separation the wife was undertaking (omitted) studies. She stopped in 2012 following separation but has now resumed the studies.
The husband’s current income including bonuses and superannuation is $110,000 and the material shows that it has been of that order or a little more for at least the last three years. In addition, he has some benefit from a car.
The order made on 12 June 2012 provided for the husband to pay the mortgage instalments on Property D and that the monthly rental on the investment property at Property W be paid towards the mortgage and the husband pay any shortfall, such payments not to be credited against any child support assessment. Not all payments have been made.
The husband has made the greater financial contribution. While there is a dispute about the extent to which each party cared for the child, clearly the wife carried out the major part of the home maker and child care duties. She ceased work prior to the birth of the child of the marriage, and from there on remained in the home caring for the child and the house. This was the way the parties by mutual decision organized the family life.
The husband made a slightly higher initial contribution, but the length of the marriage means that the effect of this was eroded by the time of separation. So far as post separation contributions are concerned, while there might be some argument about the husband not paying off the mortgage instalments as agreed and ordered on 12 June 2012, this is balanced by the fact that the wife has remained living in the matrimonial home. The balance of working and caring for the child which was the parties’ mutual way of living prior to the separation has been maintained between the husband and wife since separation.
The division of property will not affect either parties income earning capacity and so there is nothing of relevance to consider under s.79(4)(d).
The conclusion from all these considerations is that contributions are equal.
Section 75 (2) matters
A number of matters are relevant. The age and state of health of the parties is that the wife is 45 and the husband 44. Both are in good health.
The husband’s income is $110,000 per year and that will continue into the foreseeable future. The wife's income is Centrelink payments, family tax benefits and child support. She is studying and intends re-entering the workforce as she is able. The husband asserts that there are relatively well-paid positions she could obtain in the (omitted) industry in her previous occupation. The wife says that there are not. She has been out of the industry for many years. She was a (occupation omitted). She says she believes that the industry has evolved significantly and that to obtain employment she would have to slowly rebuild her career from scratch, learning new skills and systems including advanced computer skills. No expert evidence was called by either party but the wife's position is a reasonable one.
Consequently, the husband’s income earning potential is considerably more than the wife's.
The wife has a legal bill which at the commencement of hearing was $35,000 and will increase. The husband was initially represented but was not at the hearing and for some time prior to that. He appears not to have any significant bills.
Under the orders which will be made the wife will have a greater share of the care and control of the child of the marriage who turns 9 on (omitted) 2013 and so will be under the age of 18 years for another nine years.
Each party has normal commitments to care for himself or herself and the child. The husband's greater income will mean that he will have a greater ability to maintain a reasonable standard of living.
The wife is studying in an attempt to increase her income earning capacity. She is doing that presently and it is reasonable to proceed on the basis that a property settlement will make no difference to her endeavours.
The wife, since the birth of the child, has not worked, being the principal child carer and home maker. To this extent the duration of the marriage has affected her ability to earn income. The wife wishes to continue in her role as a parent and principal carer. The husband is paying child support.
The husband’s proposal of 45/55% does not sufficiently take into account the disparity in the parties’ circumstances. The wife’s proposal is an over adjustment. A 65/35% division will leave her after paying her legal costs with an amount of approximately $600,000. The conclusion from all these considerations is that there should be an adjustment of 15% in the wife's favour.
Conclusion
The non superannuation property is to be divided 65% to the wife 35% to the husband, a payment of $614,472 to the wife. The husband wishes to retain both properties and he should be given the opportunity to do so. The wife does not wish to retain the family home. The parties have agreed that superannuation be divided equally which means there will be a splitting order for the husband’s superannuation. The trustee has been provided natural justice. Orders will be made accordingly. The orders will provide that if the husband cannot retain the properties the net proceeds be divided 65/35%. The difference in values of the motor vehicles make so little difference that calculating the adjustment might cost more than the adjustment itself.
The proposed orders are a just and equitable way of putting into effect the division of property.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 15 August 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Civil Procedure
Legal Concepts
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Costs
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Damages
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Injunction
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Jurisdiction
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Remedies
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Statutory Construction
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