Vokic & Vlass
[2012] FamCA 56
•15 February 2012
FAMILY COURT OF AUSTRALIA
| VOKIC & VLASS | [2012] FamCA 56 |
| FAMILY LAW - CHILDREN – With whom the children should live – with whom the children should spend time with – best interests of the children – where both children love each of the parents and wish to spend time with them both – where the wife has had to undertake urinalysis and hair follicle tests for drug use – where the wife has received positive drug test results – whether there is an apprehension of risk to the children when in the wife’s care due to her drug use FAMILY LAW - PROPERTY – Alteration of property interests – where the wife received a $3.5 million inheritance from her mother FAMILY LAW - COURTS AND JUDGES – Application for Disqualification for apprehended bias – Application dismissed |
| Family Law Act 1975 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re Watson; Ex parte Armstrong(1976) FLC 90-059 Livesey v NSW Bar Association (1983)151 CLR 288 Re JRL; Ex parte CJL (1986) 161 CLR 342 |
| APPLICANT: | Mr Vokic |
| RESPONDENT: | Ms Vlass |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 790 | of | 2010 |
| DATE DELIVERED: | 15 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 7, 8, 9, 18 and 30 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | Moira Ryan Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The parties have equal shared parental responsibility for Y and M born … May 2003 (“the children”).
The children live with the husband.
The children spend time with the wife as set out in Orders 4 – 7 subject to:
(a)the wife’s compliance with orders 8 and 9 (absent a reasonable excuse for failure to attend for testing as agreed to by the husband) and
(b) all drug test results being negative for illicit drugs.
From the date of these Orders until the start of School Term 2, 2012 the children spend time with the wife:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b) each Sunday from 10.00 am until 5.00 pm
(c) on 2 May 2012 from 3.00 pm until 6.00 pm
(d)such overnight times with the children as agreed between the parties, provided such overnight time is supervised by a supervisor agreed between the parties.
From the start of School Term 2, 2012 until the start of School Term 3, 2012 the children spend time with the wife:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)
commencing the first week of School Term 2, 2012 each alternate weekend on Saturday from the conclusion of dance classes (or
10.00 am if dance classes are not on) until 5.00 pm and on Sunday from
10.00 am until 5.00 pm, save for the Father’s Day weekend when the children will be returned to the husband at 10.00 am on Sunday
(c)such further time (including overnight time) as agreed between the parties.
From the start of School Term 3, 2012 until the start of School Term 4, 2012 the children spend time with the wife:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)
commencing the first week of School Term 3, 2012 each alternate weekend from the conclusion of dance classes on Saturday (or
10.00 am if dance classes are not on) until 5.00 pm Sunday
(c) on Christmas Day 2012 from 10.00 am until 2.00 pm
(d) such further time as agreed between the parties.
From the start of School Term 4, 2012:
(a)each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm
(b)commencing the first week of School Term 4, 2012 each alternate weekend from the conclusion of dance classes or other extracurricular class on Saturday (or 10.00 am if there is no morning class) until 9.00 am Monday, save for the Father’s Day weekend when the children will be returned to the husband at 10.00 am Sunday
(c)should Christmas Day fall within a time when the children are spending time with their mother, the children shall spend time with their father from 2.00 pm to 7.00 pm
(d)
should Christmas Day fall within a time when the children live with their father, the children shall spend time with their mother from
2.00 pm to 7.00 pm
(e)
should 2 May fall within a time when the children are spending time with their mother, the children shall spend time with their father from
2.00 pm to 7.00 pm
(f)should 2 May fall within a time when the children are living with their father, as agreed between the parties but failing agreement with the wife from 2.00 pm to 7.00 pm
(g) on Mother’s Day from 10.00 am to 5.00 pm
(h) such further time as agreed between the parties.
The wife undertake supervised urinalysis as follows:
(a)for a period of 12 months from the date of these Orders, every Monday (Tuesday if Monday is a public holiday) with the results of the test to be provided to the husband within 7 days, and providing that if the results are not provided to the husband within 7 days, time with the children will be suspended until the results are produced
(b)for a period of 12 months from the date of these orders, random urinalysis within 48 hours of receiving a request via text message from the husband, with such requests to be made no more than once a month
(c)
following the expiration of the 12 month period above, for a period of
2 years, random urinalysis within 48 hours of receiving a request via text message from the husband, with such requests to be made no more than once every three months.
The wife undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the husband within five weeks of providing the hair sample for the test:
(a)between 1 and 8 February 2012, with a 4 cm segment of hair to be tested
(b)between 1 and 8 August 2012, with a 6 cm segment of hair to be tested
(c)between 1 and 8 February 2013, with a 6 cm segment of hair to be tested
(d)between 1 and 8 August 2013, with a 6 cm segment of hair to be tested.
In the event the wife fails to comply with Orders 8 and 9 (absent a reasonable excuse for failure to attend as agreed to by the husband) or returns a result that is positive for illicit drugs for any of the drug tests taken pursuant to these Orders, the wife will immediately cease spending time with the children pursuant to the above orders 4 – 7 and will spend time with the children as follows:
(a)for two hours every fortnight under supervision at Contact Centre 1 (or such further time as the centre may propose) and to facilitate such time:
(i)each party must contact Contact Centre 1 within seven (7) days to arrange an appointment for assessment for suitability and attend the assessment
(ii)each party must comply with any appointment made by Contact Centre 1, comply with all reasonable rules of Contact Centre 1 and comply with all reasonable requests or directions of the staff of Contact Centre 1
(iii)the wife shall pay the fees nominated by Contact Centre 1 for the provision of its service
(b)other times as agreed between the parties, under the supervision of a person agreed between the parties.
Within 21 days of the date of these Orders, the wife engage in counselling with a drug and alcohol counsellor and thereafter, attend upon that counsellor at a frequency recommended by the counsellor until such time as the counsellor recommends in writing that the counselling cease.
The wife provide her drug and alcohol counsellor with:
(a) a copy of these orders
(b)a copy of Professor H’s Single Expert Reports of September 2010 and November 2011
(c)authority to confirm with the husband that counselling has begun and is continuing at the frequency recommended by the counsellor.
In the event of further proceedings pursuant to the Family Law Act, the husband may not issue a subpoena for the production of counselling records prepared in the course of Order 11 counselling, without specific leave of the Court.
Within 6 months of the date of these Orders the wife complete a parenting education course as recommended by the Family Consultant Ms R.
Within 3 months of the date of these Orders each parent engage in individual counselling or family therapy (such therapy not to involve the children unless agreed between the parties and the therapist or counsellor) in order to obtain advice and support in assisting the children to cope with the reduction in the time they spend with their mother.
The wife is hereby restrained from consuming alcohol 24 hours prior to the children coming into her care and at all times the children are in her care.
The wife and husband are hereby restrained from consuming illicit substances at all times.
The wife provide any service that she engages for the purpose of urinalysis and hair follicle testing with authority to disclose to the husband the dates on which she has undertaken testing and the results of any tests she has undertaken, and that the husband be at liberty to contact the service directly for this purpose.
For the purpose of the time the wife spends with the children pursuant to these Orders, the wife is to collect the children from their dance/extracurricular class, school or the husband’s residence (as the case may be) at the beginning of her time with the children and the husband is to collect the children from the wife’s residence at the conclusion of her time with the children.
The husband is permitted to suspend the time the wife spends with the children pursuant to any of the above orders for a period of two weeks, twice a year, for the purpose of taking the children on a holiday outside of the Sydney metropolitan area, provided he first gives the wife 1 month’s notice.
Within 14 days of these Orders and within 14 days of the children’s subsequent enrolment at any school, each party shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each party copies of all of each child’s school reports and any written material pertaining to each child’s academic and extracurricular activities.
The parties are each entitled to attend all school events or extracurricular activities (including dance and swimming classes) involving the children.
The parties shall notify each other of any change to:
(a)
their mobile telephone number or landline telephone number within
48 hours of such change occurring
(b) their residential address, seven days prior to their change of address.
The wife and husband are to notify the other immediately of any serious illness, injury or medical emergency in respect of the children.
Within seven (7) days of the making of these Orders the children are to be presented to the Child Dispute resolution section of the Court so that the nature and effect of the decision and the Orders can be explained to them by a Family Consultant.
Property Orders
Within fourteen (14) days of the date of these Orders, the wife do all acts and execute all documents to transfer to the husband all of her right, title and interest in the property known as Property 2, D Street, Sydney Suburb H NSW … being the land in Certificate of Title folio identifier … .
Within fourteen (14) days of the date of these Orders, the husband do all acts and execute all documents to transfer to the wife all of his right, title and interest in the property known as … E Street, Sydney Suburb B NSW … being the land in Certificate of Title folio identifier … (“the B property”).
The wife be declared to have the sole right, title and interest in the contents of the house located at the B property.
The wife is to pay to the husband $172,615 within six (6) months, and that the obligation of the wife to pay the husband is to be charged by her against her right, title and interest in the B property.
Whenever a splittable payment is payable in respect of the superannuation interest of the wife in the V Superannuation Fund:
(a) the husband is entitled to be paid 100% of that splittable payment and
(b)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
The above Order binds the V Superannuation Fund.
The husband and the wife in their capacity as trustees of the V Superannuation Fund shall do all acts and things and sign all documents necessary to:
(a)calculate in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 the entitlement created for the husband and
(b)pay the entitlement whenever the trustees make a splittable payment out of the wife’s interest in the V Superannuation Fund.
Contemporaneously with the super splitting payments being effected in accordance with these Orders the wife shall do all acts and things and sign all documents necessary to resign as a member of the V Superannuation Fund and to resign as a trustee of the V Superannuation Fund.
Forthwith the husband shall indemnify the wife and keep her indemnified from and against all claims, actions, suits or demands arising out of or in connection with her having been at any time a member of the V Superannuation Fund and or a trustee of the V Superannuation Fund.
Other than as provided for above the husband and wife shall be solely entitled to the exclusion of the other party all property, chattels and superannuation of whatsoever nature and kind in possession, ownership or control of each party as at the date of these Orders.
Other than as specifically provided for above:
(a)the husband is to indemnify and keep indemnified the wife in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband
(b)the wife is to indemnify and keep indemnified the husband in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
IT IS NOTED that publication of this judgment under the pseudonym Vokic and Vlass is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 790 of 2010
| Mr Vokic |
Applicant
And
| Ms Vlass |
Respondent
And
Legal Aid NSW
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between parents with respect to the parenting of the children M and Y born in May 2003 and now 8 years of age. The proceedings also involve an alteration of the parties’ property interests.
The wife has had a history of drug abuse which the husband contends may pose a risk to the children when in the wife’s care. In accordance with Court Orders made on an interlocutory basis the wife has had to undertake urinalysis and hair follicle tests for the presence of illicit drugs.
She is required to undertake urinalysis every second Monday, after the weekend that the children have been in her care and each Thursday when the children are in her care.
The wife has Type 1 Diabetes and also suffers from psoriasis. She takes insulin for her diabetes and Humira for her psoriasis. She also takes codeine for a wound on her foot. Codeine has shown up on her drug test results and has been attributed to her use of codeine for pain relief. There appears no evidence that the wife has abused codeine.
Interim parenting Orders were made on 7 February 2011 by consent which provided that the wife spend time with the children from the commencement of Term 2, 2011 onwards as follows:
a)in Week 1 from after school on Monday until the commencement of school on Wednesday morning and from after school on Thursday until the commencement of school on Monday
b)in Week 2 from after school on Wednesday until the commencement of school on Thursday morning
c)for one half of all school holiday periods.
An application was made on the second day of the hearing by the husband seeking that the current parenting orders be suspended until cross-examination of the wife had been completed, as it was the case that the children were to be in the wife’s care that day. The application was granted.
On the third day of the hearing an application was made by the wife for disqualification of the trial judge based on an apprehension of bias arising from comments the trial judge had made when granting the application for the current orders to be suspended. This application was dismissed and the reasons are outlined below.
The Independent Children’s Lawyer indicated that the evidence in this matter in relation to parenting issues with respect to certain events cannot be seen in isolation and is a mixture of the following three themes:
a)issue of underlying vulnerabilities of the wife and effect on parenting capacity
b)issue of the wife’s drug use
c)issue of the wife’s physical and emotional availability to the children.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In November 1963, the husband was born in New Zealand. He is now
47 years of age.
In January 1969, the wife was born. She is now 42 years of age.
In 1979, the wife was diagnosed with diabetes and psoriasis.
In 1990, the wife commenced as a health worker at a Sydney hospital. She subsequently completed a degree and a higher degree in a health care field at university.
In September 1994, the husband migrated to Australia from New Zealand.
In 1997, the husband established BB Pty Limited (“BB”) as an entity through which to provide information technology services.
In 1997, the wife purchased a property situated at R Street, Sydney Suburb Z (“the Z property”) which was subject to a loan secured by mortgage from her parents of $200,000.
In 1999, the parties met.
In January 2000, the parties commenced cohabitation at the Z property.
In July 2000, the parties were married.
In May 2001, the wife’s father died.
In November 2001, the wife was employed as a health worker at a Sydney hospital.
In 2002, the husband organised and paid for the internal painting and for a new fence to be erected at the Z property.
In May 2003, the children M and Y were born. They are now 8 years of age.
In November 2003, the husband celebrated his 40th birthday with a party. The wife was drinking alcohol excessively according to the husband and fell face first on the road outside the parties’ house. She was taken to hospital. She lost one tooth, was heavily bruised and had a cut on her nose. The wife denies being intoxicated.
Between 2003 and 2009, the husband’s gross annual salary was between $140,000 and $200,000. His salary was used to meet household expenses including mortgage repayments, utilities, rates, groceries, insurances, clothing, holidays and entertainment, and medical expenses.
From May 2004 to April 2005, the wife returned to work on a part-time basis as a health worker at a Sydney hospital.
In May 2004, the parties jointly purchased a property at W Street, Sydney Suburb C (“C property”) for the sum of $850,000. The amount of $890,000 was borrowed and the loan was secured by a mortgage which was partially secured over the Z property. Loan approval was obtained in part because of the income earned by the husband and his ability to meet the repayments.
In June 2004, the wife sold the Z property and used the proceeds of sale of approximately $500,000 (the wife says $590,000) to reduce the mortgage over the C property.
In September 2004, the husband received $54,821 from his late mother’s Estate. The wife disputes the amount of inheritance received by the husband.
In 2005, the wife asserts that the husband lost approximately $300,000 on the stock market.
In April 2005, the wife’s mother died suddenly and the wife resigned from her employment as a health worker. The wife received an inheritance of $3.5 million from her mother’s Estate. This included properties at Property 1, D Street, Sydney Suburb H (“Property 1”) and Property 2, D Street, Sydney Suburb H (“Property 2”), bank deposits, and a share portfolio. The wife was able to discharge the mortgage on the C property from part of the monies received. The wife asserts that the inheritance totalled $3,950,000 however she conceded throughout the course of the trial that the amount agreed upon by the parties as the inheritance was to the value of $3,500,000.
In November 2005, the parties sold the C property for $750,000.
In November 2005, the wife employed a nanny twice a week to look after the children so she could manage the renovations at Property 1 and Property 2.
In November 2005, approximately $250,000 of the wife’s inheritance money was applied to renovating Property 2. Thereafter the parties commenced to reside there and Property 1 was rented.
In February 2006, the children started attending the local pre-school two days a week which replaced the care by the nanny.
In April 2007, the husband asserts that his share portfolio reached a value of $845,000. The wife disputes this.
On 13 April 2007, the husband sold his first tranche of shares. The proceeds were used to meet the purchase cost of a Subaru motor vehicle for the family to the value of $55,000 and $4,400 to a property consultant to assist in finding a new home for the family. The wife disputes how the sale proceeds were applied.
On 10 October 2007, the husband sold his second tranche of shares. The proceeds of sale in the sum of $92,754 were used to meet stamp duty on the purchase of E Street, Sydney Suburb B (“the B property”). The wife disputes that the sale proceeds were so applied.
In November 2007, the parties purchased the B property for $1,950,000 free from mortgage. The purchase monies derived from the sale proceeds of the C property and approximately $1,200,000 from the wife’s inheritance.
In February 2008, the children commenced school at X Public School.
In 2008, the wife crashed her car into a parked car while on anti-depressant medication.
Renovations on the B property commenced in August 2008. The wife applied approximately $725,469 of her inheritance money to renovating the B property. She project-managed the renovations which involved major construction work. The husband paid $5,000 to the builder, $48,000 to … Kitchens, $6,000 to … Air-conditioning and $3,000 to … Interiors.
On 15 August 2008, the husband sold his third tranche of shares. The proceeds of sale in the sum of $55,000 were used to meet renovation costs of the B property. The wife disputes that the sale proceeds were so applied.
In August 2008, the wife worked two days per week for one and a half months at a clinic in the city. She worked from the hours of 4.30 am to midday on Mondays and Tuesdays.
In October 2008, the wife was diagnosed with a depressive anxiety disorder and prescribed Luvox and Nitrazepam.
In April 2009, the parties moved into the B property.
From October 2009 to February 2010, the wife admits to drinking more than she would ordinarily drink.
On 5 October 2009, the wife stayed out all night in a nightclub and did not return home until 8.30 am the following morning. The wife hurt her wrist from falling over in the nightclub and fractured it. She was in a plaster cast for four to five weeks.
On 4 November 2009, the wife attended a Melbourne Cup lunch and was charged the next morning with drink driving. The wife alleged that a friend was driving the car. The wife’s licence was suspended for a period of time but the matter was subsequently withdrawn by the police.
On 11 November 2009, the husband asserts the wife showed him a cut above her right ankle and said “I’ve tried to self harm”. The wife denies that she made this comment.
For the period from October 2009 to August 2010, the wife sold publicly listed shares and received net proceeds of sale totalling $351,576. The wife asserts she expended approximately $250,000.
The husband asserts that from November 2009 to 7 February 2011, he was the primary carer of the children and structured his work arrangements so that he worked remotely from home. He asserts that he was available to deliver and collect the children from school, extra-curricular activities and medical appointments and provided for their care. The wife disputes that the husband was the primary carer.
On 10 December 2009, the husband travelled to Melbourne with the children for five days without the wife.
On 13 December 2009, the husband accessed the wife’s email and asserts that she admitted in an email to using cocaine.
The wife admits to using cocaine sometime in December 2009.
On 20 December 2009, the parties separated. From December 2009 until June 2010, the parties lived separately and apart under the one roof at the B property.
On 20 December 2009, the husband travelled with the children to New Zealand to spend two weeks with his family over the Christmas period whilst the wife remained in Sydney.
On 29 December 2009, the wife met her current partner Mr GB in person. They had previously been communicating via the internet.
Sometime in December 2009, the husband sought individual assistance and was prescribed Diazepam which he took occasionally until February 2010. The husband has continued to see a psychologist until the present time on average once per month.
The wife admits to using cocaine sometime in January 2010. The wife asserts that she has only used recreational drugs on two occasions in more than twenty years, that she is a recreational and not habitual drug user.
In January 2010, the wife was prescribed Luvox by her general practitioner to relieve her from anxiety.
On 8 January 2010, the wife drove in her car with the children whilst her licence was suspended and hit a car pylon in the shopping centre car park.
On 11 January 2010, the husband alleges that the wife admitted to him that she had been using cocaine.
On 9 February 2010, the husband commenced proceedings in the Family Court seeking urgent interim parenting orders.
On 15 February 2010, the wife was admitted to hospital for a kidney infection.
On 22 February 2010, the wife discharged herself from hospital and spent one night in the B property prior to being admitted to a private hospital on 24 February 2010.
On 24 February 2010, interim orders were made by Judicial Registrar Johnston, as he then was, on an ex parte basis that an Independent Children’s Lawyer be appointed and that the children reside with the husband until 6.00 pm on
10 March 2010 when the matter was next listed in the Duty List. It was noted that the wife was admitted to hospital on this day and her solicitor was unable to seek instructions.
On 27 February 2010, the wife was discharged from hospital.
On 10 March 2010, interim orders were made by consent that the children live with the husband; spend time with the mother after school each Tuesday to 6.00 pm unsupervised, and after school each Friday to 7.00 pm and supervised time on Saturdays from 10.00 am to 6.00 pm; hair sample testing was ordered to be carried out on the wife to detect the presence of illegal drugs; and the family to continue therapy at a Sydney clinic. The husband was to have exclusive occupation of Property 2 and the wife was to have exclusive occupation of the B property.
On 19 March 2010, the wife provided a hair sample for the hair follicle test. A nine centimetre segment of hair was tested covering an approximate period of mid June 2009 to mid March 2010. The test was positive for cocaine and methamphetamine.
On 24 April 2010, the wife asserts that the husband was observed to be driving with the children under the influence of alcohol. The husband denies this.
On 12 June 2010, the husband moved into Property 2.
On 29 June 2010, the Children and Parenting Issues Assessment of the Family Consultant was released.
On 30 June 2010, Orders were made restraining the wife from using illicit drugs whilst the children were in her care.
On 16 July 2010, an Order was made by consent for the appointment of a Single Expert, Professor H, who is a Drug, Alcohol and Addiction Medicine Specialist. He was required to report on whether the wife has a substance abuse problem and whether this affects her parenting capacity.
In August 2010, Mr GB commenced to reside with the wife.
On 3 August 2010, valuations of the parties’ properties were undertaken by Mr F of N Valuers. He valued the properties as follows:
a)The B Property: $2,250,000
b)Property 1: $1,100,000
c)Property 2: $800,000.
In August 2010, the wife commenced working at a Sydney hospital one day per week. She asserts that at times she worked five days per week.
On 2 September 2010, Professor H finalised his report and it was released some time in September 2010.
In September 2010, the husband made enquiries about the wife’s partner Mr GB through the wife’s legal representatives. The husband was advised by the wife’s legal representatives that Mr GB did not live with the wife and was only her friend. The wife conceded in oral evidence that this was not true.
On 7 February 2011, interim parenting orders were made by consent. The Orders provided for the wife’s time with the children to be increased. Orders were also made for the wife to undertake fortnightly urinalysis until 31 March 2011 and restraining both parties from using illicit substances at all times.
From 7 February to 31 March 2011, the wife was required to undertake fortnightly urinalysis tests and provide them to the husband pursuant to Court Orders. The wife failed to undertake urinalysis during this period.
The wife admitted to using cocaine with her partner Mr GB in March 2011 whilst on holidays on a cruise ship.
In April 2011, the children commenced spending equal time with each parent.
On 25 May 2011, Orders were made for the wife to undertake a drug hair test by 15 June 2011, and also to undertake urinalysis at the random request of the Independent Children’s Lawyer within 48 hours of request.
On 4 July 2011, the Independent Children’s Lawyer requested the wife to undertake urinalysis by 4.00 pm on 6 July 2011. On 6 July 2011 at 11.30 am the wife undertook a urinalysis which was negative for illicit drugs; however a “very low” level of creatinine was measured, suggesting a possible dilution of the sample.
On 28 July 2011, the wife provided a hair sample for the drug hair test. The test results show drug use from approximately mid-April 2011 to mid-July 2011. The test was positive for amphetamine and methamphetamine.
On 8 August 2011, the Independent Children’s Lawyer requested the wife to undertake urinalysis by 10.00 am on 10 August 2011. On 10 August 2011, the wife undertook a urinalysis which was negative for illicit drugs; however a “low” level of creatinine was measured which indicated a possible dilution of the sample.
In mid August 2011, the parties were divorced.
The children were in the care of the wife on the weekend of 20–21 August 2011. The wife asserts that she went to Mr GB’s friend’s home in Sydney Suburb AA on Sunday, 21 August 2011 for approximately one hour. She asserts she did not voluntarily consume any drugs at Sydney Suburb AA. It is noted that the home at Sydney Suburb AA is conceded to be known to the wife as a place where drugs are consumed.
On 22 August 2011, the Independent Children’s Lawyer requested the wife to undertake urinalysis by 1.00 pm on 24 August 2011. At 12.20 pm on
24 August 2011 the wife undertook a urinalysis which was positive for methamphetamine. A “very low” level of creatinine was measured.
On 26 August 2011, the Family Report of the Family Consultant was released.
On 1 September 2011, an Order was made for the wife to undertake urinalysis every Thursday of the week during which the children are in her care and every Monday after the children conclude spending time with her.
On Thursday, 15 September 2011; Monday, 19 September 2011; Thursday,
29 September 2011; and Monday, 3 October 2011, the wife was required to undertake urinalysis but failed to do so.
On or around 13 October 2011, the children were in the wife’s care and it is alleged by the wife that they deliberately urinated on their beds. She admits to disciplining them with an egg flip due to their misbehaviour.
On Saturday, 15 October 2011, the children were in the wife’s care. The wife and Mr GB attended a 40th birthday party that night in Sydney Suburb UU and organised for a friend of the family, Ms MB, to babysit the children. Ms MB lives and at that time lived at Property 1, next door to the husband’s present residence.
On Sunday, 16 October 2011, the children were not collected by the wife from Ms MB’s place until 9.00 pm at which point the children were highly distressed and wished to stay with their father. The children remained in the husband’s care that night.
On Monday, 17 October 2011, the husband went with the children to the wife’s home to collect their school bags. The wife was not there and she had left the children’s school bags on the front veranda. She had gone to “walk the dog”.
On Monday, 17 October 2011, the wife was required to undertake urinalysis but failed to do so.
On 25 October 2011, the children were in the care of the wife. The husband received a call that day at approximately 1.20 pm from the children’s school advising that Y was sick and that they had been unsuccessful in contacting the wife. The husband collected Y from school and took her to the wife’s home where it took Mr GB five minutes to answer the door. The wife was in the lounge room in her underpants when the husband entered the house.
On Thursday, 27 October 2011, the wife was required to undertake urinalysis but failed to do so.
On 3 November 2011, the wife was due to attend an appointment with Professor H for a further report to the Court. The wife did not attend.
On 3 November 2011, Professor H provided an addendum to his first report.
On 8 November 2011, the wife attended an appointment with Professor H to make up for the one she had missed on 3 November 2011.
The Issues
Whether the trial judge should disqualify himself from continuing to hear the proceedings.
The credit of the wife and her partner Mr GB.
It was proposed by the Independent Children’s Lawyer that the issues are as follows with respect to the parenting proceedings:
a)whether the current shared care arrangement should continue in some form
b)whether the wife’s parenting capacity is presently compromised by matters affecting her physical and/or mental health and alleged drug and alcohol use
c)whether there is an unacceptable risk that the wife’s parenting capacity will become compromised in the future by matters affecting her physical and/or mental health and alleged drug and alcohol use
d)should the Court find that the current shared care arrangement should not continue, what arrangements should be made to ensure that the children have a meaningful relationship with both of their parents, particularly to the extent that M expresses the wish that she would like to spend more time with her mother.
The issues in relation to the property proceedings are:
a)what is the property of the parties to the marriage or either of them
b)what is a just and equitable re-distribution of that property having regard to the contributions made by each of the parties as described in s 79 of the Act
c)given the assets of the parties to the marriage or either of them, what, if any, is an appropriate alteration to their property interests which will do justice as between them, having regard to the matters required to be taken into account under s 75(2) of the Act
d)what is overall a just and equitable division of property.
The Orders Sought by Each Party
The husband filed a Minute of Orders on 3 November 2011 seeking shared parental responsibility for the children. After being provided with Professor H’s updating report dated 3 November 2011, the husband filed an Amended Minute of Orders on the first day of the hearing seeking sole parental responsibility. He explained his decision as based on the fact that the wife had been tested positive for methamphetamine and MDMA in August 2011 and she failed to attend her appointment with Professor H on 3 November 2011.
On the final day of the hearing, the Independent Children’s Lawyer filed a minute of orders with which the husband agreed. That order is set out hereafter.
The husband, in summary, seeks the following property orders:
Financial Relief
(1)That by way of final property alteration:
(a)That the wife:
(i)Pay to the husband the sum of $825,000.00
(ii)Transfer to the husband the whole of her right, title and interest in Property 1.
(b)That contemporaneously with the wife’s compliance with the Order above, the husband shall transfer his right, title and interest in the B Property.
(c)That in the event that the wife fails to comply with the Order above within the time prescribed, the wife shall then forthwith do all things necessary to market for sale and sell the property known as Property 1.
(d)That upon settlement of the sale of the property the wife shall distribute the proceeds of sale in the following manner and priority:
(i)In payment of the agent’s commission, auctioneer’s commission and any other expense properly incurred;
(ii)In payment of the legal costs of sale;
(iii)In payment to the husband of $825,000.00 and interest accrued thereon;
(iv)In payment to the wife of the remaining balance.
(2)That in accordance with s 90MS of the Family Law Act 1975:
(i)Whenever a splittable payment becomes payable in respect of the interest of the wife in the V Superannuation Fund the husband will be entitled to be paid 100% of each splittable payment and there will be a corresponding reduction in the entitlement of the wife.
(3)That contemporaneously with the super splitting payments being effected the wife shall do all things necessary to resign as a member of the V Superannuation Fund and to resign as a trustee of the V Superannuation Fund.
(4)That the husband shall indemnify the wife and keep her indemnified from and against all claims arising out of or in connection with the V Superannuation Fund.
(5)That otherwise than provided the husband and wife shall be solely entitled to the exclusion of the other party to all property, chattels and superannuation.
(6)That the husband and wife each indemnify the other in respect of all actions, claims, suits and demands made against the other in relation to all liabilities in their respective names.
(7)That the wife pay the husband’s costs.
The wife, in summary, seeks the following orders:
(1)Equal shared parental responsibility of the children.
(2)That each party shall be responsible for the day to day care, welfare and development of the children during such periods when the children are in the care of either of them.
(3)That the children live with the mother from after school on Monday until after school the following Monday in each alternate week.
(4)That the children live with the father from after school on Monday until after school the following Monday in each alternate week.
(5)That the children spend additional time with each parent as follows:
(a)With the mother for one half of each school holiday period.
(b)With the father for one half of each school holiday period.
(c)With the father each Father’s Day
(d)With the mother each Mother’s Day
(e)With the father from 5.00 pm on Christmas Eve until 1.00 pm on Christmas Day in even numbered years and from 1.00 pm on Christmas Day to 5.00 pm on Boxing Day in odd numbered years and each alternate year thereafter.
(f)With the mother from 1.00 pm on Christmas Day until 5.00 pm on Boxing Day in even numbered years and from 5.00 pm on Christmas Eve to 1.00 pm on Christmas Day in odd numbered years and each alternate year thereafter.
(g)With the father on his birthday.
(h)With the mother on her birthday.
(i)With the father/mother on the children’s birthdays if he/she is not already spending time with the children from after school until 7.00 pm on a school day and from 12.00 pm until 7.00 pm on a non school day.
(j)At other such times as may be agreed.
(6)That each party facilitate telephone communication with the other parent when the children are in their care.
(7)The mother shall collect the children from the father’s residence or the children’s school at the commencement of her time with the children, and the father shall collect the children from the mother’s residence or the children’s school at the commencement of his time with the children.
Property
(8)That the wife transfer to the husband Property 2.
(9)That the husband transfer to the wife the B Property.
(10)That the wife be declared to have the sole right, title and interest in the contents of the house located at the B Property.
On the final day of the hearing, the Independent Children’s Lawyer, in summary, proposed the following orders:
(1)That the parties have equal shared parental responsibility for the children.
(2)That the children live with the father.
(3)That the children spend time with the mother as set out in order 4 -7 subject to:
(a)The mother’s compliance with orders 9 and 10 (absent a reasonable excuse for failure to attend for testing as agreed to by the father) and
(b)All drug test results being negative for illicit drugs.
(4)That until the start of School Term 3, 2012 the children spend time with the mother:
(a)Each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm.
(b)Each Sunday from 10.00 am until 5.00 pm.
(c)On Christmas Day 2011 from 1.00 pm to 5.00 pm.
(d)On 2 May 2012 from 3.00 pm until 6.00 pm.
(e)Such overnight times with the children as agreed between the parties, provided such overnight time is supervised by a supervisor agreed between the parties.
(5)That from the start of School Term 3, 2012 until the start of school Term 4, 2012 the children spend time with the mother:
(a)Each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm.
(b)Commencing the first week of School Term 3, 2012 each alternate weekend on Saturday from the conclusion of dance classes (or 10.00 am if dance classes are not on) until 5.00 pm and on Sunday from 10.00 am until 5.00 pm, save for the Father’s Day weekend when the children will be returned to the father at
10.00 am on Sunday.(c)Such further time (including overnight time) as agreed between the parties.
(6)That from the start of School Term 4, 2012 until the start of School Term 1, 2013 the children spend time with the mother:
(a)Each Thursday from after school (or 3.00 pm during school holidays) until 6.00 pm.
(b)Commencing the first week of School Term 4, 2012 each alternate weekend from the conclusion of dance classes on Saturday (or 10.00 am if dance classes are not on) until 5.00 pm Sunday.
(c)On Christmas Day 2012 from 10.00 am until 2.00 pm.
(d)Such further time as agreed between the parties.
(7)That from the start of School Term 1, 2013:
(a)Each Thursday from after school (or 3.00 pm during school holidays) until 6.00pm.
(b)Commencing the first week of School Term 1, 2013 each alternate weekend from the conclusion of dance classes or other extracurricular class on Saturday (or 10.00 am if there is no morning class) until 9.00 am Monday, save for the Father’s Day weekend when the children will be returned to the father at
10.00 am on Sunday.(c)Should Christmas Day fall within a time when the children are spending time with their mother, the children shall spend time with their father from 2.00 pm to 7.00 pm.
(d)Should Christmas Day fall within a time when the children live with their father, the children shall spend time with their mother from 2.00 pm to 7.00 pm.
(e)Should 2 May fall within a time when the children are spending time with their mother, the children shall spend time with their father from 2.00 pm to 7.00 pm.
(f)Should 2 May fall within a time when the children are living with their father, as agreed between the parties but failing agreement from 2.00 pm to 7.00 pm.
(g)On Mother’s Day from 10.00 am to 5.00 pm.
(h)Such further time as agreed between the parties.
(8)That in the event the mother fails to comply with orders 9 and 10 (absent a reasonable excuse for failure to attend as agreed to by the father) or returns a result that is positive for illicit drugs for any of the drug tests taken pursuant to these orders, the mother will immediately cease spending time with the children pursuant to orders 4 – 7 and will spend time with the children as follows:
(a)For two hours every fortnight under supervision at Contact Centre 1 (or such further time as the centre may propose) and to facilitate such time;
(i)Each party must contact Contact Centre 1 within seven (7) days to arrange an appointment for assessment for suitability and attend the assessment;
(ii)Each party must comply with any appointment made by Contact Centre 1, comply with all reasonable rules of Contact Centre 1 and comply with all reasonable requests or directions of the staff of Contact Centre 1.
(iii)The mother shall pay the fees nominated by Contact Centre 1 for the provision of its service.
(b)Other times as agreed between the parties, under the supervision of a person agreed between the parties.
(9)That the mother undertake supervised urinalysis as follows:
(a)For a period of 12 months from the date of these orders, every Monday (Tuesday if Monday is a public holiday) with the results of the test to be provided to the father within 7 days, and providing that if the results are not provided to the father within
7 days, time with the children will be suspended until the results are produced.(b)For a period of 12 months from the date of these orders, random urinalysis within 48 hours of receiving a request via text message from the father, with such requests to be made no more than once a month.
(c)Following the expiration of the 12 month period above, for a period of 2 years, random urinalysis within 48 hours of receiving a request via text message from the father, with such requests to be made no more than once every three months.
(10)That the mother undertake hair follicle testing to test for illicit drugs on dates as follows, with results to be provided to the father within five weeks of providing the hair sample for the test:
(a)Between 1 and 8 February 2012, with a 4cm segment of hair to be tested;
(b)Between 1 and 8 August 2012, with a 6cm segment of hair to be tested;
(c)Between 1 and 8 February 2013, with a 6cm segment of hair to be tested;
(d)Between 1 and 8 August 2013, with a 6cm segment of hair to be tested.
(11)That within 21 days of the date of these orders, the mother engage in counselling with a drug and alcohol counsellor and thereafter, attend upon that counsellor at a frequency recommended by the counsellor until such time as the counsellor recommends in writing that the counselling cease.
(12)That the mother provide her drug and alcohol counsellor with:
(a)A copy of these orders;
(b)A copy of Professor H’s Single Expert Reports of September 2010 and November 2011;
(c)Authority to confirm with the father that counselling has begun and is continuing at the frequency recommended by the counsellor.
(13)That in the event of further proceedings pursuant to the Family Law Act, the father may not issue a subpoena for the production of counselling records prepared in the course of Order 11 counselling, without specific leave of the Court.
(14)That within 6 months of the date of these orders the mother complete a parenting education course as recommended by the Family Consultant Ms R.
(15)That within 3 months of the date of these orders each parent engage in individual counselling or family therapy (such therapy not to involve the children unless agreed between the parties and the therapist or counsellor) in order to obtain advice and support in assisting the children to cope with the reduction in the time they spend with their mother.
(16)That the mother is hereby restrained from consuming alcohol 24 hours prior to the children coming into her care and at all times the children are in her care.
(17)The mother and father are hereby restrained from consuming illicit substances at all times.
(18)That the mother provide any service that she engages for the purposes of urinalysis and hair follicle testing with authority to disclose to the father the dates on which she has undertaken testing and the results of any tests she has undertaken, and that the father be at liberty to contact the service directly for this purpose.
(19)That for the purposes of the time the mother spends with the children pursuant to these orders, the mother is to collect the children from the dance/extracurricular class, school or the father’s residence (as the case may be) at the beginning of her time with the children and the father is to collect the children from the mother’s residence at the conclusion of her time with the children.
(20)That the father is permitted to suspend the time the mother spends with the children pursuant to any of the above orders for a period of two weeks, twice a year, for the purpose of taking the children on a holiday outside of the Sydney metropolitan area, provided he first gives the mother 1 months notice.
(21)That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, each party shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each party copies of all of each child’s school reports and any written material pertaining to each child’s academic and
extra-curricular activities.(22)That the parties are each entitled to attend all school events or extracurricular activities (including dance and swimming classes) involving the children.
(23)That the parties shall notify each other of any change to:
(a)Their mobile telephone number or landline telephone number within 48 hours of such change occurring;
(b)Their residential address, seven days prior to their change of address.
(24)That the mother and father are to notify the other immediately of any serious illness, injury or medical emergency in respect of the children.
Application for Disqualification
The husband had made an application on the second day of the hearing for the current parenting orders to be suspended until the wife’s cross-examination had been completed. This application was granted. In response to this an application was made by the wife on the third day of the hearing for the trial judge to disqualify himself from continuing to hear the matter. It was submitted that there was an apprehension of bias and prejudgment based on the judge’s comments with regard to having concern from what he had heard from the wife in her cross-examination.
It was submitted by the wife that there was no evidence before the Court, either by the wife or the husband, that there was any risk to the children in relation to being in the wife’s care. It was also submitted that the drug test chronology showed a consistency of negative drug testing. It was also submitted that the evidence with regard to the wife’s drug testing was not conclusive.
The wife submitted that in order to suspend the time the wife spends with the children there should have been both compelling and unequivocal evidence that the wife was submitting to consuming drugs, and more particularly that the consumption of drugs in some manner placed the children at risk.
It was submitted by the wife that, by the trial judge suspending the parenting orders, this lead to apprehension that the trial judge had prejudged the matter on only part of the available evidence.
Both the husband and Independent Children’s Lawyer opposed the wife’s application and stated that a reasonable observer would not have grounds to form a reasonable apprehension of bias taking into account the evidence before the Court.
There was already evidence before the Court of the wife failing to undertake drug testing in accordance with Court Orders and that she had lied in her affidavit material.
The relevant principles in relation to the conduct of proceedings and the exercise of power by the Courts are contained in s 69ZN.
Section 69ZR is the applicable provision in the Act which gives the Court power to make determinations, findings and orders at any stage of child-related proceedings. A judge who exercises power under this section is not required to disqualify himself from a further hearing of the proceedings merely because he exercised this power (s 69ZR(3)).
The test is whether a fair-minded lay observer in Court might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issues. It is an objective test. The circumstance that a party considers the judge to be biased or has prejudged an issue is in itself not sufficient. It is necessary to show that the reasonable observer might (not would) reach such a conclusion: (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Watson; Ex parte Armstrong(1976) FLC 90-059, Livesey v NSW Bar Association (1983)151 CLR 288 and Re JRL; Ex parte CJL (1986) 161 CLR 342).
The Court finds that a fair-minded lay observer in Court having regard to the evidence which had been given, would not reasonably apprehend that the trial judge may not bring an impartial and unprejudiced mind to the resolution of the issues. Accordingly, the wife’s application is dismissed.
Credit
The Wife
The Court finds the wife’s evidence to be generally unsatisfactory.
The wife was not candid and open and has been untruthful in her evidence.
The wife made admissions in her cross-examination that she had lied in instructions provided to her legal representatives and letters sent to the husband with regard to Mr GB; in particular whether he was living at the B property and whether she was in a de facto relationship with him. It is her affidavit evidence that Mr GB began living with her in August 2010, whereas the letters sent on her behalf as at May 2011 stated he was not living at the B property.
There were apparent discrepancies between the wife’s evidence and Mr GB’s evidence and the inconsistency was marked. This was especially evident with regard to the events which occurred on the weekend of 15–16 October 2011. She asserts Mr GB came home with her after the 40th birthday party, whereas he asserts they went to his friend’s place in Sydney Suburb AA and he did not go home with her as they had an argument.
The wife also provided new explanations for events that were not contained in her affidavit material. In particular with regard to her drug taking, her affidavit evidence states that she took cocaine in December 2009, and in her oral evidence she changed this and asserts it happened in November 2009. She also provided new evidence in relation to her chat transcript on the website … and asserts she “might” have been leading the person on (to whom she was chatting) about having taken “nose candy”.
Another example of providing new evidence not contained in her affidavit material was her assertion that on the weekend of 20 – 21 August 2011 she may have ingested or been exposed to drugs without her consent, and provided this as an explanation for her positive urinalysis on 24 August 2011.
The wife has failed to comply with Court Orders with respect to attending the urinalysis testing and the use of drugs. Of particular concern is her failure to attend the urinalysis on 17 October 2011 following the events that occurred on the weekend of 15–16 October 2011. The wife’s evidence was that she did not attend because she got “messed up” and may have attended the week before. It was put to her in cross-examination that it would be difficult to mess up as she should know she only attends on Mondays after the children are in her care.
The wife knew that a major issue of the parenting matters was her drug and alcohol abuse. She also knew that she was prohibited by Court Orders from taking any illicit substances. Notwithstanding this she took cocaine in March 2011 on the cruise ship holiday and in addition she admitted to drinking alcohol to excess.
The wife admitted that she did not disclose working at a Sydney hospital in her affidavit of 21 September 2011. The wife failed to disclose until cross-examination that her friend Mr GB had taken money from her without her permission to fund his gambling habit. Accurate information as to the amount so taken was not provided.
The wife has consistently ignored Orders of the Court as to the provision of documents and information for the property proceedings, in particular telephone records and bank statements.
The Husband
The Court finds the husband’s evidence to be largely credible. It was direct and open and he appropriately made concessions. His evidence was forthright and even handed. The evidence of the husband is preferred to that of the wife where the two conflict and is preferred overall unless otherwise specifically stated.
Mr GB
It appears that Mr GB sacrificed the truth in giving his evidence to support his partner.
The Court finds that his evidence was unreliable.
Mr GB was recanting statements he made through much of his evidence.
For example, he stated he was not aware that the wife’s drug use was an important issue for the Court to make a decision on with relation to the parenting matters. He then changed his answer and stated that as they were false allegations against the wife he did not think it was important, admitting that he was aware of the issue.
When shown the Family Report, he conceded that he was surprised to read the details contained in it about the wife’s drug use and was not aware of the seriousness of the issues until reading the Family Report on the day he gave evidence at the trial.
His evidence with regard to the money he makes from his online trading enterprise overall was unreliable or incomplete or both.
The Evidence
Evidence of the Husband
The husband relied on two of his affidavits: one of 28 September 2011 and one of 31 October 2011. The husband’s affidavit affirmed on 31 October 2011 detailed events that occurred on the weekend of 15 to 16 October 2011 when the children were in the care of the wife, and also events on 25 October 2011.
The husband’s evidence is that in 2008 and 2009, the wife went on weekends away with her girlfriends on average once a month. He states that she would usually leave Friday morning and return Sunday night or Monday morning. He asserts that he would look after the children and attend to household chores at these times. He stated that the wife was consuming alcohol to excess, spending long periods in her bedroom and became withdrawn from him and the children. This pattern of behaviour continued through to January and February 2010.
The husband deposes that on the evening of Sunday, 31 January 2010, M said to him words to the effect of, “Where’s Mummy, isn’t she home? What kind of Mummy is she? She makes promises and doesn’t keep them. She makes pinky promises and breaks them”.
In December 2009, the husband obtained the wife’s chat transcripts from the home computer and these are attached as exhibits to his affidavit. The transcripts show that the wife made the following comments, “big Friday night, crazy, champagne and nose candy lol” and “snorted too much and drank way too much champagne”.
The husband asserts that in January 2010 the wife admitted to him that she had used cocaine.
It is the husband’s evidence that in late September 2010 there were a variety of factors which led him to believe that an arrangement for the children to spend more time with the wife unsupervised was appropriate on a trial basis.
The husband agreed to an increase in time with the wife on the basis that she undertook fortnightly urinalysis testing until March 2011 and that the results were to be provided to him. The wife agreed to this.
The husband deposes that for the period from October 2010 to March 2011 the wife only provided one urinalysis test result to him on 26 October 2010 and failed to provide any other test results.
It is the husband’s evidence that for the period from 7 February 2011 to
31 March 2011 the wife did not provide one urinalysis test result to his legal representatives as required by the Orders of 7 February 2011.
It is the husband’s evidence that since May 2011 he has been concerned that the wife is not coping when the children are in her care. He reports that the children have made the following comments to him:
“Mummy’s in her bedroom”
“Mummy’s always in her bedroom now. She doesn’t like to play with us. Only [Mr GB] plays with us”.
“Mum went on a harbour cruise on Saturday and [Mr GB] looked after us, Mummy cares more about her friends than us” (in January 2011)
“We went to the beach with Mummy and [Mr GB] today and we got sunburnt. Mummy and [Mr GB] forgot us. They drove off in the car without us” (in January 2011)
“Mummy tells us if we are fighting we have to sort it out ourselves. She stays in her bedroom and doesn’t come out to help” (in June 2011)
It is the husband’s evidence that the wife has not dealt with basic organisation for the children’s schooling in recent months including:
a)being unable to find the children’s school uniforms and sports uniforms to give to the husband at changeover
b)sending the children to school in dirty and torn uniforms
c)forgetting to collect the children from school one afternoon so the children walked home alone and went to a neighbour’s home
d)not checking homework diaries and assisting them with their homework, so that homework is left to the days the children are with the husband
e)not packing lunch for the children to take to school so that they have complained to the husband about being hungry
f)buying breakfast for the children every morning before school at a bakery, usually sweet pastries or McDonalds
g)not attending parents’ day at the children’s school in July until the afternoon. There was an event in which the children were involved at 11.30 am which the wife missed.
The husband deposes that the wife has failed to take the children to their swimming lessons on Wednesday evenings and dance classes on Saturday mornings.
The husband asserts that he is concerned about the wife’s body image issues and the effect they have on the children. He deposes that in August 2011 M said to him, “Mummy wants us to be skinny like her. She tells us we need to go on a diet”.
It is the husband’s evidence that he prepares breakfast for the children each morning, ensures they have clean uniforms and helps them dress for school, brushes their hair, packs their school bags and prepares them lunch for school. He asserts that he feeds the children healthy food for breakfast, lunch and dinner and provides them with enough food and snacks for lunch.
The husband deposes that he takes the children to and from school every day and keeps abreast of their progress at school, talking to other parents and teachers. He asserts that he takes the children to any activities they are involved in at school as well as their swimming lessons and dance classes.
The husband denies that he has a problem with alcohol or that he consumes alcohol at a dangerous level. He deposes that he may drink one or two glasses of red wine with an evening meal at most four or five times a week.
It is the husband’s evidence that he sought assistance from a psychologist at the time of the marriage breakdown as he was struggling to come to terms with the wife’s behaviour, her drug use and the breakdown of their relationship. He was prescribed Diazepam in December 2009 which he took occasionally until February 2010. He deposes that he has continued to seek treatment from his psychologist and in 2011 has had on average one session per month.
It is the husband’s evidence that on the weekend of 15 to 16 October 2011 the wife left the children in the care of Ms MB while she attended a 40th birthday party.
The husband asserts that he took the children for breakfast on Sunday,
16 October 2011 and that upon his return Ms MB called and advised him that the wife was still in Sydney Suburb AA, that she was not collecting the children until the afternoon and that “she sounded out of it”. The children remained in Ms MB’s care for the afternoon.
The husband asserts that he spoke to Ms MB at about 8.00 pm at which point the wife had still not collected the children. It is his evidence that Ms MB told him that the children were very upset, wanted to go home, were crying and saying things like, “mummy doesn’t care about us”.
The husband asserts that upon the wife’s arrival at Ms MB’s at 9.00 pm he went over to Ms MB’s and saw that the children were both crying and upset. The children ran over to him grabbing on to his legs and said, “we want to stay with you daddy”. The wife agreed that it would be best for the children to stay with the husband that night. She went inside the husband’s house to take the children to bed and say good night.
The husband states that after the wife left, the children were crying and very distressed and he spent an hour with them, comforting and reassuring them. The husband asserts that the children made comments to him such as, “Mummy doesn’t act like a mummy, you do. You feed us and make sure we’re warm”.
After putting the children to bed the husband’s evidence is that he spoke to Ms MB and that she told him that when the wife arrived to pick up the children they said to her, “I hate you Mum. You’re a fucking bitch”. She also told him that M drew a picture when she was at her house earlier which appeared to be of the wife and the words “bad” and “I hate you” were written on it. He also deposes that Ms MB told him that the girls had told her that they had deliberately urinated on their beds on Thursday night and that the wife smacked them with an egg flip as punishment.
The husband’s evidence is that the following morning on Monday, 17 October 2011 he prepared the children for school and texted the wife telling her he would come to her house to collect the children’s school bags. He asserts that he received no response but went to the house anyway, where he observed the school bags on the front veranda and knocked on the door to which there was no response. He states that he did not hear from the wife until 10.00 pm that night.
It is the husband’s evidence that on Tuesday, 25 October 2011, when the children were in the wife’s care, he received a call from the children’s school advising that Y was sick. The school had informed him that they could not get in contact with the wife.
The husband states that he collected Y from school and took her to the wife’s place as she was to be in her care that day. He asserts that he knocked on the door for five minutes before Mr GB answered the door and let him in. The husband asserts that when he entered the wife’s house he observed her sitting in the lounge room in her underpants. He observed that there were lit cigarettes sitting in an ashtray and that the house was messy.
The husband asserts that he went to the chemist to obtain more antibiotics for Y and delivered them back to the wife’s home.
Oral Evidence of the Husband
In his oral evidence-in-chief the husband gave evidence that on Sunday,
30 October 2011 he received a call from the wife at approximately 12.00 noon advising him that Y was unwell with swollen tonsils. The husband told the wife to take Y to the doctor but she said she could not go as Mr GB had the car and was with M. The husband offered to take the wife and Y to the doctors but the wife refused and said she would wait for Mr GB and take her. The husband stated that he called back at 8.00 pm to find out the wife had not taken Y to the doctors and would take her on Monday. The children were in the husband’s care on the Monday afternoon and he obtained a script for a stronger antibiotic for Y.
It was the husband’s evidence that he believes the wife is close to being a drug addict. He said that her erratic behaviour, physical appearance, conduct on
15–16 October 2011 and not being available for the children are indications of this. He did not agree with the proposition that the wife’s drug use has not had an impact on her care of the children.
The husband stated that his concerns in relation to the wife’s care of the children are based on the fact that there are positive drug tests, that the children complain they do not get proper lunch for school, that the children complain the wife does not have food at home, that the wife spends a lot of time in the bedroom, that the wife has slept in and taken the children late to school, that the children do not complete their homework whilst in her care, and the incident when Y was sick at school and the school was unable to get in contact with the wife on a day that the children were in her care.
It was put to the husband that there could be a legitimate excuse for the wife not being able to be contacted by the school when Y was sick and that this only happened once. The husband said that he found the wife at home that day and asserts that there has been a pattern of such behaviour.
It was put to the husband that the Family Report indicates that the children have a loving and close relationship with the wife and that they feel loved and wanted, and that his evidence that the wife hardly spends time with the children is in conflict with the opinion of the Family Consultant. The husband accepted this but stated that sometimes they do not feel wanted and used the events of 15-16 October 2011 as an example.
The husband was questioned as to why he did not collect the children from Ms MB’s place on 16 October 2011 when Ms MB told him the children had been crying and saying that the wife did not love them. The husband stated that he thought the wife would be collecting them soon and did not think to go over.
It was put to the husband that the wife dealt with the situation on 16 October 2011 in a reasonable way by allowing the children to go home with the husband. It was put to him that she showed cooperation and sensitivity to the children’s needs and wishes. The husband accepted that this was so.
The husband was questioned about his amended minute of orders which were filed on the first day of the hearing. It was put to him that the significant reduction in time that he was proposing that the children spend with the wife would have an impact on the children. The husband accepted that there may be an impact on the children, and accepted that they will miss the wife and possibly blame the husband. The husband said he would seek psychological help for the children to cope with the situation.
It was the husband’s proposal that if the wife can demonstrate that she is
drug-free for a period of twelve months and undertakes rehabilitation he would suggest a week-about contact arrangement. He also stated that the wife should be required to undertake continued monitoring and tests, and that there should be a suspension of time with the children should the results be positive. The husband accepted that there would be an impact on the children should all time be suspended. He also recognises that the children need a mother and accepts that they love her very much.
The husband accepted that up until the point of the hearing and changing his minute of orders to sole parental responsibility that the parties had shared parental responsibility of the children. He also accepted that they have been able to make long term decisions for the children with no huge disagreements. He stated that the change to his minute of orders was due to the wife’s drug use and behaviour. He stated that should the wife continue to use drugs they may not be able to continue to agree on long term decisions. However he conceded that the wife’s alleged drug use has not created any problems to date with respect to making those types of decisions.
The husband stated that Ms MB is like a grandmother figure to the children. She has lived in Property 1 for five years and lives next door to the husband. The husband stated that he has left the children in Ms MB’s care before, as has the wife, and that he would encourage her relationship with the children to continue. He also stated he would support her as an appropriate supervisor if she is agreeable to providing supervision of the wife.
Evidence of the Wife
The wife relied on two of her affidavits sworn during the proceedings on
21 September 2011 and 4 November 2011. The wife’s affidavit sworn
4 November 2011 was filed in reply to the husband’s affidavit affirmed
31 October 2011.
It is the wife’s evidence that following the death of her mother she was suffering from grief and found this to be a traumatic and distressing experience. She also deposes that there were problems in her marriage and she felt that the husband had become emotionally unsupportive of her.
The wife contends that the current parenting arrangements are working well save for the fact that the children appear to be unsettled on the Wednesday night in the second week where they stay with the wife overnight. She asserts that the children have expressed confusion as to what day it is and who will be collecting them from school.
The wife asserts that she attends to all of the children’s needs including providing them with meals including school lunches, taking them to and collecting them from school, assisting with their homework and ensuring they have a regular routine of waking up for school, having breakfast before leaving and attending to their personal hygiene.
It is the wife’s evidence that she met her current partner Mr GB in December 2009 and that he commenced living with her at the B property in August 2010. She asserts that the children appear to like Mr GB and they all get along well together, engaging in activities together.
The wife admits to using cocaine on three occasions: in December 2009, January 2010 and March 2011. The wife deposes that she deeply regrets using cocaine in March 2011, and states that her inhibitions and sense of judgment were impaired by the alcohol she had consumed. She stated that it is her intention to not use cocaine, and asserts she has never used illicit drugs whilst caring for the children.
It is the wife’s evidence that her comments to the Family Consultant that she may use cocaine again in the future were hypothetical and that it is difficult for her to envisage a situation where she would use cocaine.
The wife admits to drinking alcohol to excess in the period from October 2009 to February 2010. The wife asserts that her alcohol consumption has reduced since she has been living apart from the husband.
The wife contends that the husband drinks alcohol to excess and that there have been times where she believes the husband was intoxicated.
It is the wife’s evidence that she no longer takes Luvox or any other anxiety medication. She asserts that she takes medication such as paracetamol and codeine, and that she takes insulin for her diabetes and Humira for her psoriasis. The wife contends that her medication does not affect her ability to care for the children.
It is the wife’s evidence that on 16 October 2011 it was agreed with Ms MB that she would collect the children some time in the afternoon but that no time was agreed. She asserts that she went out that day to Sydney Suburb AA and inadvertently locked herself out of the house and was required to call an after-hours locksmith and that this caused the delay in collecting the children from Ms MB’s house.
The wife acknowledged that the children were upset with her when she arrived at Ms MB’s and that Y expressed a desire to stay at the husband’s place. The wife asserts that M wanted to go home with her. As the husband had come over to Ms MB’s and the children were upset it was agreed that the children would stay with the husband. The wife stated that she put the children to bed and was trying to reassure them.
The wife denies that when she spoke to MS MB that day that she could be described as “out of it”. The wife admitted to feeling tired. The wife denied consuming any alcohol or illicit drugs over the weekend of 15–16 October 2011.
The wife asserts that she did not hear the words “I hate you mum, you’re a fucking bitch”.
With regard to the picture that M drew the wife contends that a conclusion cannot be reasonably drawn that the drawing is of her.
The wife asserts that on the morning on 17 October 2011 she left the school bags on the front veranda for the husband to collect them while she and Mr GB went for a walk, and did not wait to see the children to reassure them following the incident the day before.
The wife admitted to not undergoing the urinalysis test on Monday, 17 October 2011. She states that it was an oversight and her only explanation is that she must have “messed up” the schedule. This is in contrast to Mr GB’s evidence.
The wife deposes that she has had difficulty arranging and attending appointments at DM Laboratory’s rooms (a pathology medical practice) in the Sydney CBD. She states that she has attended on her general practitioner, Dr NN, on 28 and 31 October 2011 to undertake the testing.
The wife admitted to smacking the children with an egg flip after the incident where the children urinated on their bed. She asserts this was to signal to them how inappropriate their behaviour was.
It is the wife’s evidence that the children have made the following comments to her about the husband:
“Dad chases us and hits us with a thong”
“Dad smacks us and he shouts at us”
“You’re too nice to us, why don’t you yell at us like Daddy does?”
It is the wife’s evidence that on 25 October 2011 she did not receive a call from the children’s school and there were no missed calls from them with regard to Y being sick. The wife deposes that when the husband arrived at her house with Y that day there was nothing untoward about the appearance of the house, and denies that she was unsteady on her feet or tired. The wife admitted that she was sitting in the lounge room in a t-shirt and her underpants.
Oral Evidence of the Wife
In her oral evidence the wife stated that on 3 November 2011 she experienced traffic delays which made her late for her appointment with Professor H. She stated that she called his rooms and she was told not to rush as there were three people ahead of her. It is her evidence that she arrived just after 5.00 pm and that his rooms were closed when she arrived. This is in contrast to Mr GB’s evidence. The wife’s phone was produced which showed she made calls to Professor H at 2.00 pm and 5.45 pm. The wife conceded she had missed one of the most important appointments for the proceedings. This evidence is at odds with that of Mr GB who says he left the wife in Castlereagh Street at 3.30 pm and picked her up at 4.00 pm.
It was put to the wife that the husband holds a concern for the children not being provided with lunch. The wife’s evidence was that she prepares school lunches for the children every day. On the weekends she stated that the children have breakfast and then graze throughout the rest of the day so there may not be a formal lunchtime. She said that she does not often give the children fast food and that she is usually responsible for cooking the meals.
It is the wife’s evidence that she takes proper care of and responsibility for the children. She asserts that she assists them with their homework and that she takes them to school and collects them almost every day. She conceded that Mr GB assists her on occasions. She also denied remaining in her bedroom when the children are in her care, and asserts that the children sometimes like to play alone and tell her to leave their playroom.
It was put to the wife that she told the Family Consultant that she would make more of an effort to take the children to their swimming and dance classes. It was her evidence that she cannot remember the last time that the children were taken to these activities but asserts she has done so within the last three to four months, but that the swimming term was now finished. She admitted that there was no reason or explanation for why she cannot take the children to these activities.
In total he lent the sum of NZ$62,103.87 to the husband and he expects the husband to repay the loan.
In his oral evidence he stated that he lent the husband more money and was happy to do so as he did not think $12,000 would be enough to cover his legal fees. He also stated that the husband had asked him for more money on two further occasions.
The husband’s father confirmed that the three payments referred to above were the only advances he had made to the husband. He stated that the husband stopped asking him for money after the final loan on 30 September 2010 as he did not want to put his father under any more pressure.
He stated that he had arrived at the 8.4% interest rate as he had been receiving approximately 8% interest on his funds from the bank accounts that he had his money invested in.
Determination of the Balance Sheet
It is noted that the values of the properties owned by the parties are derived from the valuation of Mr F of 20 September 2011.
It is submitted by the husband that the wife’s use and application of share sale proceeds has been in issue throughout the course of the litigation. He asserts that the wife has sold shares for $675,224 from December 2009 to September 2011. It is submitted by the husband that there is an absence of disclosure in relation to this issue, and that numerous requests have been made for the wife’s disclosure. Letters requesting such disclosure are contained in Exhibit 6 at
Tab 2 which is a tender bundle of the husband. The wife conceded in her oral evidence that the husband’s amount was probably correct, which is in contrast to her affidavit evidence of only obtaining $250,000 from the sale of shares. She also conceded that she has to bear the responsibility for the disposal of these funds.
It was submitted by the wife that an amount of $250,000 should be deducted from the figure of $675,224 to account for general living expenses for her, the children and Mr GB and rent for the period that she had vacated the former matrimonial home. It was also submitted that this amount should be deducted bearing in mind the reasonable lifestyle led by the parties prior to separation.
An amount will be deducted from the amount of $675,224 taking into account the wife’s general living expenses. The Court finds that an appropriate amount to be deducted is $70,000 per year for the two year period since separation. It is noted that the wife had the benefit of the rental income from Property 1, and also that the wife’s time with the children was increased to a shared care arrangement in April 2011.
Further evidence was given by Mr GB on the final day of the hearing with respect to disposal of some of the share sale proceeds. It was both Mr GB’s and the wife’s evidence that Mr GB had gained unauthorised access to the wife’s bank account and credit card and had spent approximately $20,000 on gambling.
It is also submitted that the wife has not disclosed the total costs and disbursements paid and owing by the wife to her legal representatives and Counsel. The quantum of paid legal fees indicated in the balance sheet is that contended by the wife. The husband contends that the wife’s quantum is unreliable. A letter dated 7 October 2011 from the husband’s legal representatives to the wife’s legal representatives to this effect is contained in Exhibit 6 at Tab 2. The husband concedes the wife’s paid legal fees are included in and have been sourced from the add back sought from the share sale proceeds.
The wife’s paid legal fees will not be included in the balance sheet as this is accounted for in the add back of the proceeds from the sale of shares.
It was revealed on the second last day of the hearing that the wife has secured a mortgage over the property at Property 1 which had not been included in the balance sheet nor disclosed in any of the wife’s affidavit material or oral evidence. A copy of the mortgage document became Exhibit 27. The mortgage was entered into by the wife by way of providing security for her legal representative’s fees. The mortgage was entered into on 4 November 2011 and is for the amount of $80,000. The wife’s liability for the legal fees will not be included in the balance sheet.
It is noted that the husband has borrowed $50,247 from his father to meet his legal fees and has also used credit cards to do the same.
It was submitted by the wife on the final day of the hearing that the husband had not produced evidence to prove that all of the credit card debts were associated with payment of legal fees. It was submitted by the husband that the wife had been shown these documents and agreed to reproduce them within seven days from the final day of the hearing for the wife to inspect them.
The Court notes that the husband’s paid legal fees total $117,799 and the total of his credit card debts and loan from his father totals $135,818; the difference being a liability of $18,019 to the husband. The Court will include this shortfall amount as a liability of the husband in the balance sheet and will not include the loan to the husband’s father or the credit card debts or paid legal fees.
It is noted that the figures of the wife’s superannuation contained in the State Super and SANCS funds were obtained from the Form 6 Valuation of Trustee dated 27 May 2011.
With regard to the disposal of matrimonial property the husband admitted to selling 102,000 SDL shares on 22 March 2010 at $0.15 per share. The proceeds in the amount of $15,267 were deposited into the husband’s ANZ Bank Account.
The wife admits to selling shares to renovate the matrimonial home valued at $700,000. She also sold shares, to support herself and the family and to purchase assets such as a motor vehicle, to the value of approximately $300,000. The wife has also spent approximately $80,000 from her bank account on living expenses and legal costs.
Superannuation
At the commencement of cohabitation the husband had superannuation in the amount of $40,353 and the wife had superannuation in the amount of $44,500.
There is currently $326,538 in the V Superannuation Fund which has been divided between the parties in the joint balance sheet, representing $163,269 for each party.
The wife currently has $182,598 in her SASS Deferred Benefit Fund and $33,696 in her SANCS Deferred Benefit Fund, totalling $216,294.
The husband seeks a splitting order as to an amount of 100% of the V Superannuation Fund.
The Court proposes to make a splitting order in favour of the husband for 100% of the V Superannuation Fund and for the wife to be entitled to her superannuation benefits.
The Court notes that the husband and wife are trustees of the V Superannuation Fund.
The Court finds that the assets and liabilities of the parties excluding superannuation are as follows:
| Assets | ($) |
| B Property (j) | 2,050,000 |
| Property 1 (w) | 1,000,000 |
| Property 2 (w) | 800,000 |
| Household furniture and contents (w) | 20,000 |
| Jewellery and Coins (w) | 20,000 |
| Gold Coins (h) | 2,050 |
| Model and replica collection (h) | 1,000 |
| Art books (h) | 2,000 |
| Webjet Shares (500 @ $2.24 as at 27/10/11) (h) | 1,120 |
| BHP Shares (300 shares @ $36.55 as at 2/11/11) (w) | 10,965 |
| Bluescope Steel Shares (5000 shares @ $0.78 as at 2/11/11) (w) | 3,900 |
| GPT Group Shares (219 shares @ $3.08 as at 2/11/11) (w) | 674 |
| St George Bank Account (w) | 3,000 |
| ANZ E-trade account (w) | 3,000 |
| Westpac Bank Account (w) | NK |
| ANZ Access Cheque Account (h) | 7,346 |
| ANZ Personal Investment Account (h) | 395 |
| Mercedes motor vehicle (w) | 26,000 |
| Subaru motor vehicle (h) | 26,000 |
| Wine collection (h) | 7,000 |
| Funds in Broun Abrahams Burreket Trust Account (counsel’s anticipated fees) (h) | 24,750 |
| Add-back: Proceeds of sale of shares from October 2009 to October 2011 of $675,224 with a deduction for general living expenses of $70,000 per year | 535,224 |
| Total Assets | $4,544,424 |
| Liabilities | |
| Credit Card Liability (h) | 18,019 |
| Tax liability for 2009, 2010 and 2011 financial years (w) | 58,882 |
| Total Liabilities | $76,901 |
| Nett Assets | $4,467,523 |
| Superannuation | |
| V Superannuation Fund (w) | 163,269 |
| V Superannuation Fund (h) | 163,269 |
| SASS Deferred Benefit Fund (w) | 182,598 |
| SANCS Deferred Benefit Fund (w) | 33,696 |
| Total Superannuation | $542,832 |
| Nett Asset Pool (inclusive of Superannuation): | $5,010,355 |
Section 79(4) contributions
Initial Contributions
It is the husband’s evidence that at the commencement of cohabitation he contributed the following:
a)equity by way of sole Shareholder and Director in BB Pty Limited to the value of $45,641
b)listed shares to the value of $61,800 as follows:
i)4,000 Telstra Corporation shares with a value of approximately $27,000. He received 3,000 shares in 1997 when they were first issued, and bought a further 1,000 shares in November 1998
ii)2,000 Colonial Limited shares with a value of approximately $18,000
iii)1,250 Orica Limited shares with a value of approximately $11,000
iv)2,000 TAB NSW Limited shares with a value of approximately $5,800
c)Toyota motor vehicle with the value of $8,000. He purchased this vehicle in 1997 for $13,000
d)Commemorative Gold Coin collection and limited edition silver coins to the value of $2,500
e)Advance Superannuation with the value of $40,353.
The husband at the commencement of cohabitation provided IT services through BB. He asserts that BB provided services to large corporations. He paid himself a salary of $45,000 per annum. He also asserts that he used some of the profit earned to invest in the share market and provide an alternate income stream through the payment of regular dividends.
The husband contributed approximately $158,294 inclusive of superannuation at the commencement of cohabitation.
At the commencement of cohabitation the wife contributed her equity in the Z Property. The property was purchased in 1997 for $273,000 subject to a mortgage in favour of the wife’s parents of $200,000. The wife contributed a Mitsubishi motor vehicle which was valued at approximately $12,000. She also had monies invested by way of term deposits which totalled $20,000 and a superannuation entitlement with State Super of approximately $44,500.
The wife was employed as a health worker at a Sydney hospital from 1990 until 2001.
According to the husband, the wife also had a personal loan of $6,000.
The wife contributed approximately $149,500 inclusive of superannuation at the commencement of cohabitation in net assets. The wife had liabilities totalling approximately $206,000.
Contributions to date of separation
Throughout the period of cohabitation the husband applied all his income and savings for the benefit of the marriage. He asserts that during the periods that the wife was not working he would provide her with $250 per week to use for her own personal expenses, which was in addition to meeting all household and children related expenses.
The husband asserts that during the financial years from 2001 to 2010 his salary ranged from $70,421 to $179,834.
The husband was employed as a sub-contractor by HH Company from 2004 until November 2008, at which point he was employed as a permanent employee in the same role with that company.
The husband contributed an inheritance from his late mother’s Estate on
13 September 2004 in the sum of $54,821.
The husband asserts that at the commencement of cohabitation when the parties lived in the Z property he paid for the following expenses: electricity; gas; water; private health insurance premiums; groceries and take away; entertainment and eating out at restaurants; and holidays. He also organised and paid for a metal picket fence to the sum of $3,500 and paid $2,500 to paint the internal walls and ceiling of the property.
The husband’s shares were sold during 2007, purchasing the Subaru motor vehicle for the parties (purchased for in excess of $50,000), paying the stamp duty on the acquisition of the matrimonial home at the B property in the sum of $92,754, and meeting the costs of renovations in respect of the matrimonial home in 2008 to the extent of $55,000.
During cohabitation it is the husband’s evidence that he applied his efforts and labours towards the improvement, maintenance and conservation of the Z, C and B properties. He also asserts that he applied his efforts and skills to managing tradesmen undertaking renovations to the properties of the parties at Z, C, Property 2, and the home at B.
During the period of cohabitation the husband was responsible for arranging mortgage finance for the properties, the listing of the parties’ properties for sale and the acquisition of properties.
During the period of cohabitation the husband applied his skills to creating wealth for the parties by way of share trading and transactions. He asserts that the wife had no involvement in his share trading.
The husband asserts that it was his income which enabled the parties to obtain a Line of Credit from Colonial Bank to assist them with the purchase of the C property as the wife was not working at the time. He states that the net proceeds of approximately $500,000 from the sale of the Z property in June 2004 were applied to reduce the mortgage on the C property.
The husband asserts that when residing at the Z and C properties the parties shared the household chores, and that he also looked after the outside maintenance of the property.
Subsequent to the wife returning to work as a health worker in 2004 the husband asserts he adopted a greater role in domestic tasks within the home. The wife asserts she was the primary carer for the children following their birth.
During the marriage the parties shared the parenting of the children. This was initially shared in a consistent manner with the employment obligations of the parties. It is the husband’s submission that the wife’s role in the caring of the children on a day to day basis subsided during the latter part of the marriage. Simultaneously, the husband reduced his attendance at his place of employment on a weekly basis and increased the work he undertook from home.
It is the husband’s case that the decrease in the wife’s engagement in the day to day care of the children coincided with the wife suffering from depression and anxiety in 2008 and 2009 and developed with the wife commencing to undertake a reckless lifestyle characterised by alcohol and substance abuse and other pursuits outside the matrimonial home.
The husband asserts that he shared the homemaking tasks with the wife throughout the marriage. He states that prior to hiring a cleaner in 2007 who would attend once a fortnight to do the large cleaning tasks, he would do the following: cleaning bathrooms; mopping, sweeping, vacuuming floors; dusting; cleaning bedrooms including making beds; laundry; and grocery shopping.
The husband also submits that during the marriage he did a larger share of cooking meals and would cook three to four times a week. The wife asserts that she usually prepared the meals.
The wife was in full time or part time employment during the marriage and contributed the monies she earned in payment of outgoings and household expenses. The wife worked as a health worker at a Sydney hospital from November 2001 until April 2005. The wife ceased work after the children were born in 2003 and returned to work in March 2004 on a part time basis until April 2005.
The wife asserts that upon her return to work in March 2004 her mother would assist in caring for the children, and that when her mother passed away in April 2005 she resigned from her employment to care for the children. She also deposes that they engaged the services of a nanny to care for the children between 9.00 am and 6.00 pm on a Monday and Thursday so that the wife could supervise the renovations at Property 1 and Property 2.
The wife received an inheritance of $3.5 million by way of her mother’s Estate in 2005. This inheritance included Property 1 and Property 2. The wife submits that these monies were used in part to discharge the outstanding mortgage secured upon the C property, for renovations, share trading and payment of living expenses. Property 1 has been rented and provided the wife with rental income.
The wife submits that she contributed a significant part of her inheritance to purchase the B property and that the sale proceeds from the C property in the amount of $750,000 were also used to purchase the property. She also asserts that she project-managed the renovations, which cost approximately $725,000.
The wife also submits that she spent approximately $250,000 renovating Property 2 before the parties commenced living there.
It is the wife’s submission that she made a contribution to the welfare of the family in her role as parent and homemaker as she was primarily responsible for the care and supervision of the children and in performing household tasks and domestic duties.
The husband concedes that the wife’s inheritance was important to their relationship and assisted them.
The wife conceded in her oral evidence that the husband’s income, together with her inheritance, allowed the parties to have a comfortable life and make acquisitions of properties and improvements to those properties.
Contributions post separation
It is the husband’s argument that subsequent to separation the wife has sold shares valued at in excess of $675,224 and has not provided an explanation as to how she has applied these proceeds.
The husband asserts that the funds received by the wife from the proceeds of sale of shares should be notionally added back to the pool of property available for distribution between the parties. In the alternative, such quantum would be reflected by way of a reduction in the contribution finding in favour of the wife of not less than 7.5%.
In her oral evidence the wife deposed that her current partner Mr GB has gained unauthorised access to her bank accounts and credit cards and has withdrawn money from her accounts and has gambled this money. The wife provided this as an explanation to how some of the share sale proceeds have been disposed of. At first the wife claimed that she did not know how much Mr GB had taken from her and then later provided evidence that he had withdrawn up to $20,000. The wife admitted to not wanting to disclose the amount without getting advice from her counsel, and stated that she was embarrassed about this and so did not disclose this earlier in the hearing.
Mr GB gave evidence on the final day of the hearing with regard to his gambling. It was his evidence that he had gained unauthorised access to the wife’s bank account and spent this money playing the poker machines, and also gained access to the wife’s credit card to use on internet gambling websites. It was his evidence that he had gambled approximately $20,000 of the wife’s money. He asserted that he would pay the wife back.
Subsequent to separation the wife has received the benefit of rental income of Property 1 for in excess of two years. This has produced an additional $30,000 by way of income to the wife. The wife has also worked from September 2010 to February 2011 at a Sydney hospital and received an income despite her affidavit evidence to the contrary.
Subsequent to separation of the parties in December 2009 until June 2010, the husband maintains that he conserved the home at the B property which included lawn mowing, gardening and upkeep of the property; clearing dirt that had been left in the yard by the builders by hiring a skip bin and shovelling dirt and debris into the bin; regular cleaning inside the home including sweeping, vacuuming and mopping; attending to repairs including fixing the fence; and payment of council rates and water rates. After that time he attended to the maintenance and conservation of Property 2.
The husband admits that on 22 March 2010 he sold 102,000 SDL shares that he owned as he needed funds to meet his additional expenses including payment of legal fees. The proceeds of sale were $15,267.
The wife admitted to selling $250,000 worth of shares since separation to assist her with general living expenses and outgoings for the B property, as well as meeting her legal costs.
The husband asserts he has been the primary person responsible for the day to day care of the children.
The husband submits that his contributions should be 27.5% to 30% in the event he is successful by way of notional add back to the balance sheet or 35% if he is not successful.
The wife contends that in light of the significant inheritance which she received late during the marriage that contributions should be assessed to favour her as to 80% to 85% of the net assets of the parties available for distribution.
Conclusion based on contribution
All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them including such property which is no longer the property of the parties to the marriage or either of them to be 80:20 to the date of the hearing in favour of the wife.
Section 75(2) considerations
Cohabitation was for a period of approximately ten years.
The husband is in good health however he has suffered from stress and anxiety as a result of the nature, character and length of this litigation. He was on stress leave from work throughout the hearing and continues to see a psychologist on average once per month.
The wife suffers from Type 1 Diabetes and Psoriasis. She has previously been diagnosed with anxiety and depression. The wife spends approximately $1,400 per month on Humira, medication for her psoriasis. The wife also has an unhealed ulcer on her foot which she has had since approximately November 2009. The medication Humira can lower the ability of the immune system to fight infections from open cuts or sores.
The wife has had a history of alcohol and drug abuse.
The husband’s current employment is to be terminated in the near future. He estimates he will receive a redundancy package of approximately $20,000 being two weeks pay for each year he has worked for the company as well as any annual leave, however this has not been confirmed in writing by HH Company.
The husband is eligible to participate in a redeployment program at his current place of employment. This is a four week program which will provide the husband with a period of time to look for a position within HH Company. Should the husband not be successful at the end of the four week period he will be placed into a program which includes an open job search period of four weeks and a potential severance payment. This program provides the husband with employment up until 20 January 2012 within HH Company should he not be successful in gaining an internal position.
The husband’s expertise and qualifications are specialised and it is his evidence that they are becoming antique and he will have to retrain to improve his prospects of future employment. He asserts that his skill set is not easily transferable to other areas in the IT industry, and he has not had experience in other types of programs that are now used more widely. The husband envisages a further two years of study if he is to retrain and start in a new career.
The husband has obtained advice from a career consultant who asserts that it may take him up to twelve months to find a new job, and that further training in more modern technologies should be undertaken to increase his prospects of future employment.
In his oral evidence the husband stated that he had made twelve applications for alternative employment. He deposed that he had received a response from four of those jobs stating that he was not suitable for the role and was waiting to hear back from the others.
The husband submitted that if he does not find a job that is as flexible as his current working arrangements he would employ someone to assist him in taking and collecting the children from school, and that he would make use of the after-school care provided at the children’s school.
It is submitted by the wife that the husband has a superior income earning capacity to that of the wife notwithstanding that he is facing a redundancy and it may be necessary for him to undertake retraining.
The wife has an income earning capacity of $50,000 to $70,000 as a health worker depending on the nature of the position. She asserts that it is her intention to obtain work as a health worker once the proceedings are finalised. She contends that she will obtain work which will be in school hours or during times the children are not in her care. As employment as a health worker provides flexibility in working hours and times she believes she will be available to care for the children.
The wife concedes she has had a capacity to earn income of $50,000 to $70,000 per annum over the two year period since separation. She has not provided evidence in her affidavit material of her efforts made in pursuing and obtaining employment.
The wife cohabits with her partner who operates his online trading business from the matrimonial home. Mr GB gave evidence on the final day of the hearing that he had gained employment as a full time cleaner earning approximately $1,200 gross per week.
The husband has borrowed funds from his father to meet his legal fees and other necessary expenses since the proceedings have commenced. The total amount borrowed was $47,730.70 and the current amount owing is $50,247. The husband asserts he is to repay his father by February 2012 and that 8.4% interest has been charged on this loan.
The wife is in a superior financial position to that of the husband as a consequence of the very significant inheritance which she received from the estate of her late mother.
The husband submits that there should be an adjustment in his favour of not less than 10%.
The wife contends that upon the basis that there is a shared arrangement in relation to the care of the children that an adjustment of between 2.5% and 5% should be made in her favour. However, the husband will in fact have the ongoing primary care of the children of this marriage.
Conclusion on section 75(2)
For all the reasons referred to above I consider that having regard to the financial positions of each of the parties that there are factors which require an adjustment to the division of property in favour of the husband and I find that the amount should be approximately 7%.
Overall division of assets
The above determination will see the wife receive approximately 73% of the parties’ assets and the husband receive approximately 27% of the parties’ assets.
Just and equitable
The division of assets would see the wife receive $3,441,266 worth of nett assets plus her superannuation in the amount of $216,294 and the husband receive $853,642 worth of nett assets plus the total amount of $326,538 from the V Superannuation Fund, plus payment due by the wife of $172,615.
In the circumstances of this case I determine that result to be just and equitable.
Orders which should be made
I propose orders which will give effect to the following division.
The wife will receive:
| Assets | ($) |
| B Property | 2,050,000 |
| Property 1 | 1,000,000 |
| Household furniture and contents | 20,000 |
| Jewellery and Coins | 20,000 |
| BHP Shares (300 shares @ $36.55 as at 2/11/11) | 10,965 |
| Bluescope Steel Shares (5000 shares @ $0.78 as at 2/11/11) | 3,900 |
| GPT Group Shares (219 shares @ $3.08 as at 2/11/11) | 674 |
| St George Bank Account | 3,000 |
| ANZ E-trade Account | 3,000 |
| Westpac Bank Account | NK |
| Mercedes motor vehicle | 26,000 |
| Add-back: Proceeds of sale of shares from October 2009 to October 2011 with deduction for general living expenses | 535,224 |
| Total Assets | $3,672,763 |
| Liabilities | |
| Tax liability for 2009, 2010 and 2011 financial years | 58,882 |
| Total Liabilities | $58,882 |
| Payment due to husband under these orders | $172,615 |
| Net Assets (excluding superannuation) | $3,441,266 |
| Plus Superannuation | |
| SASS Deferred Benefit Fund | 182,598 |
| SANCS Deferred Benefit Fund | 33,696 |
| Total Superannuation | $216,294 |
| Total to be received by the wife – 73% | $3,657,560 |
The husband will receive:
| Assets | ($) |
| Property 2 | 800,000 |
| Gold Coins | 2,050 |
| Model and replica collection | 1,000 |
| Art books | 2,000 |
| Webjet Shares (500 @ $2.24 as at 27/10/11) | 1,120 |
| ANZ Access Cheque Account | 7,346 |
| ANZ Personal Investment Account | 395 |
| Subaru motor vehicle | 26,000 |
| Wine collection | 7,000 |
| Funds in Broun Abrahams Burreket Trust Account (counsel’s anticipated fees) | 24,750 |
| Total Assets (excluding superannuation) | $871,661 |
| Liabilities | |
| Credit Card | 18,019 |
| Total Liabilities | $18,019 |
| Net Assets (excluding superannuation) | $853,642 |
| Payment by the wife to the husband | $172,615 |
| Plus Superannuation | |
| 100% of V Superannuation Fund | $326,538 |
| Total to be received by the husband – 27% | $1,352,795 |
I certify that the preceding five-hundred and twenty-eight (528) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 15 February 2012.
Associate:
Date: 15 February 2012
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