Wadlow & Wadlow
[2021] FedCFamC1F 57
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wadlow & Wadlow [2021] FedCFamC1F 57
File number(s): LNC 116 of 2020 Judgment of: MCGUIRE J Date of judgment: 7 October 2021 Catchwords: FAMILY LAW – PARENTING – Substantial Consent – issue as to time-with for children with their father – Family Violence – Children’s Views
FAMILY LAW – PROPERTY – Contributions - Weight to be given to substantial gift early in relationship – S 75(2) factors- Post separation taxation liabilitiesLegislation: Family Law Act 1975 (Cth) ss 60B(1) and (2), 65DAA(3) Cases cited: Stanford v Stanford (2012) 247 CLR 108
Wallis & Manning (2017) FLC 93-759
Pierce & Pierce (1999) FLC 92-844
Dickons v Dickons [2012] 50 Fam LR 244
Weir & Weir (1993) FLC 92-338
Jabour & Jabour[2019] FamCAFC 78
Clauson & Clauson (1995) FLC 92-595
Division: Division 1 First Instance Number of paragraphs: 133 Date of hearing: 18, 19 and 20 May 2021 and 10 September 2021 Place: Hobart Solicitor for the Applicant: Ms Trezise Solicitor for the Respondent: John Munro ORDERS
LNC 116 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WADLOW
Applicant
AND: MR WADLOW
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS BY CONSENT THAT:
CHILDREN
1.THAT the parents, Ms Wadlow (‘the wife’), and Mr Wadlow (‘the husband’), have equal shared parental responsibility for the children X born … 2008, Y born … 2010 and Z born … 2013 (“the children”).
2.THAT the children live with the wife.
3.THAT the children spend time and communicate with the husband as follows:
(a)during school terms each second weekend from Friday after school until Monday at the commencement of school;
(b)for one half of each Tasmanian gazetted mid-year school holiday period as follows:
(i)in each odd numbered year for the first half of the school holiday period, being from the first Friday of term school holidays at the conclusion of school until the second Saturday at 6:00pm;
(ii)in each even numbered year for the second half of the school holiday period, being from the second Saturday at 6:00pm to the following Sunday at 6.00pm;
(c)on a week-about basis during the Tasmanian gazetted summer school holiday periods with the changeovers to occur on Friday at 6.00pm commencing on the first week of holidays in 2021 and each alternate year thereafter and commencing on the second week of holidays in 2022 and each alternate year thereafter;
(d)on the Father’s Day weekend, should the children not otherwise be in the husband’s care, from 5.00pm Saturday to 5.00pm Sunday evening;
(e)in each even numbered year from 5.00pm on Christmas Eve until 5.00pm on Christmas Day;
(f) in each odd numbered year from 5.00pm on Christmas Day until 5.00pm on Boxing Day;
(g)during the Easter public holiday period, subject to that period not falling within the mid-year school holiday period, in each odd numbered year from 5.00pm on Good Friday until 5.00pm on Easter Sunday;
(h)during the Easter public holiday period, subject to that period not falling within the mid-year school holiday period, in each even numbered year from 5.00pm on Easter Sunday until 5.00pm on Easter Tuesday;
(i)on the husband’s birthday in each year at times to be agreed, but if not agreed between 12:00 noon to 6:00pm on a non-school day and between 3:00pm to 6:00pm on a school day;
(j)on each of the children’s birthdays in each year at times to be agreed, but if not agreed between 12:00 noon to 6:00pm on a non-school day and between 3:00pm to 6:00pm on a school day;
(k)by telephone on Tuesdays and Thursdays between 7:00pm and 7:30pm to be initiated by the husband to the children’s mobile telephone, 0483 327 598, with the wife facilitate that call, ensuring that the children take that call and can talk to the husband in privacy;
(l)at such other dates and times as agreed between the parties in writing from time to time.
4.THAT the children’s time with the husband be suspended as follows:
(a)on Mother’s Day weekend from 5.00pm Saturday until 5.00pm Sunday;
(b)in each even numbered year from 5.00pm on Christmas Day until 5.00pm on Boxing Day;
(c)in each odd numbered year from 5.00pm on Christmas Eve until 5.00pm on Christmas Day;
(d)during the Easter public holiday period, subject to that period not falling within the mid-year school holiday period, in each even numbered year from 5.00pm on Good Friday until 5.00pm on Easter Sunday;
(e)during the Easter public holiday period, subject to that period not falling within the mid-year school holiday period, in each odd numbered year from 5.00pm on Easter Sunday until 5.00pm on Easter Tuesday;
(f)on the wife’s birthday in each year at times to be agreed, but if not agreed between 12:00 noon to 6:00pm on a non-school day and between 3:00pm to 6:00pm on a school day;
(g)on each of the children’s birthdays in each year at times to be agreed, but if not agreed between 12:00 noon to 6:00pm on a non-school day and between 3:00pm to 6:00pm on a school day;
(h)at such other dates and times as agreed between the parties in writing from time to time.
5.THAT during periods when the children are in the care of the husband, the husband enable the wife to contact the children by telephone or electronic device on Tuesdays and Thursday at 7:00pm with telephone calls initiated by the wife to X’s mobile telephone.
6.THAT for the purpose of changeovers:
(a)if the children’s time with the husband commences or concludes on a school day, the husband will collect or return the children from and to the children’s school/s;
(b) unless otherwise agreed in writing between the husband and the wife by text message or email exchange beforehand, the wife is to deliver the children to the husband’s home at the commencement of time on non-school days and the husband is to return the children to the wife’s home at the conclusion of time on non-school days.
7.THAT the wife be named as the first emergency contact for each of the children on all documents until the children reach the year of eighteen (18) years and the husband be listed as the second emergency contact for each of the children until they reach the age of eighteen (18) years.
8.THAT each parent will promptly inform the other parent of any serious illness or injury or threat of the same suffered to or sustained by the children or any one of them whilst in that parent’s respective care and that each parent is to inform the other of any medication prescribed or administered to the children or any one of them whereby it is to be dispensed by the respective parent.
9.THAT both parents may attend all school events and extra-curricular activities and sporting events that parents normally attend including but not limited to parent/teacher interviews, school sporting events, school socials and non-school extra-curricular activities.
10.THAT both parents be listed at the respective schools for each of the children as a person who receives school notifications, school reports and newsletters.
11.THAT the primary school age children are to complete their primary schooling at G School and all children are to be enrolled and attend J School, with the wife and the husband each to pay fifty percent (50%) of the primary and secondary school fees subject to that schooling taking place at G School and J School, and that each of the children follow on and complete their schooling at the same schools provided that if a more expensive education is sought by the husband, the wife shall pay half of the equivalent value of school fees that G School and J School would require.
12.THAT the parents ensure that when the children are in their care the children attend their agreed respective extra-curricular activities.
13.THAT the parent who signs the child or children up for their respective extra-curricular activities shall be the parent who bears the cost/s of such activities.
14.THAT each parent will inform the other in writing or by electronic device or text message of their current address and telephone number/s and advise the other in writing within seven (7) days of any change to their address and telephone number/s.
15.THAT any overseas travel involving the children or any one of them be agreed to by both parents until the children reach the age of eighteen (18) years with interstate travel to occur on the basis that the travelling parent provide an itinerary to the other parent at least fourteen (14) days before the proposed travel and the travel not being to a destination with a Covid-19 problem.
16.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
17.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
NOTATION: That these orders are made by consent of the parties save Order 3(a) which is an Order of the Court.
PROPERTY
BY DETERMINATION
18.That the husband and wife forthwith lodge with the Australian Taxation Office individual tax returns for the financial years 30 June 2017, 30 June 2018 and 30 June 2019 and the husband forthwith lodge with the Australian Taxation Office amended tax returns for the Wadlow Family Trust for the financial years ended 30 June 2-17, 30 June 2018 and 30 June 2019 to provide that the sum of $20,000 is distributed from the Wadlow Family Trust to the wife in each of those three financial years.
19.That the husband be and is solely responsible for payment of the tax liabilities which arise from the lodgement of the amended tax returns for himself and the Wadlow Family Trust and/or any other penalties, fines, interest and/or cost which now or hereinafter fall due as a consequence of the husband’s late lodgement of the individual tax returns for himself and the Wadlow Family Trust for the financial years 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2019.
20.That within forty two (42) days of the date of these Orders the wife pay to the husband a lump sum of $65,599.40.
21.That contemporaneously with the payment above the husband shall:
(a)vacate the property at F Street, B Town;
(b)transfer and/or vest all his right title and interest to the wife in all real property, personalty, chattels, bank accounts or like investments, motor vehicles, any superannuation policies designated to the wife pursuant to paragraph 127 of the Reasons for Judgment herein; and
(c)be solely responsible for and indemnify the wife in respect of the following:
(i)any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these Orders;
(ii)any and all liabilities incurred by the husband since separation in either joint names or in the husband’s name alone; and
(iii)any interest and penalties attaching to either party’s liabilities for the late lodging of taxation returns for the financial years ending 30 June 2017, 2018 and 2019.
22.That contemporaneously with the transfer and vesting Orders in Order 21 above the wife shall:
(a)transfer and/or vest all her right, title and interest to the husband in all personalty, chattels, motor vehicles, bank accounts or like investments and superannuation policies designated to the husband pursuant to paragraph 127 of the Reasons for Judgment herein;
(b)be solely responsible for and indemnify the husband in respect of the following:
(i)any and all liabilities attaching to any of the assets retained by the wife pursuant to these Orders including the H Bank Mortgage and the wife is to forthwith make every reasonable attempt to refinance and/or obtain a discharge for the husband under that mortgage; and
(ii)any and all liabilities incurred by the wife since separation in either joint names or her name alone.
23.Providing that any adjustment made by reason of calculations and/or rulings of the Australian Taxation Office be attributed to the parties in accordance with the percentage division of property pursuant to these Orders.
24.Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Wadlow & Wadlow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATIONS
Ms Wadlow is the applicant (‘the wife’) in proceedings commenced March 2020 in respect of both parenting and financial issues. Mr Wadlow is the respondent (‘husband’).
To the credit of the parties they have agreed many of the peripheral parenting orders and many of the financial matters in dispute by the conclusion of the evidence. Negotiations continued between the parties following final submissions with some further agreements. I am now left to determine the parenting issue as to the time that the children X born in 2008 (aged 12 years), Y born in 2010 (aged 11 years) and Z born in 2013 (aged 8 years) (collectively ‘the children’) spend with the husband during school terms.
The parties have agreed orders for equal shared parental responsibility and that the children live primarily with the wife. They have agreed that the children will spend one half of each Tasmanian school holidays with each of the parents. They agree special days.
The wife proposes that during school terms the children spend time with the husband fortnightly from Friday after school until Monday at the commencement of school. This would be three nights per fortnight. The husband proposes that the children spend block times of five nights per fortnight over a weekend with the children. The husband's counsel in his final submissions suggested that a four night block would be a compromise position with which the husband would be comfortable.
In respect of financial matters the wife argues for an 85 per cent distribution to her and 15 per cent to the husband on a one–pool basis inclusive of superannuation. Specifically, she argues for a 20 per cent loading on the basis of superior contributions and 15 per cent on account of the relevant s 75(2) factors.
In his case summary, the husband argued for a 40/60 per cent split of the property pool, again on a one pool basis inclusive of superannuation, in favour of the wife. By the time of final submissions the husband’s position had moved to one whereby the wife receive 70 per cent of the pool and that he retain 30 per cent based on an argument of 10 per cent loading for contributions to the wife and 10 per cent loading to her for relevant s 75(2) factors.
There is also a dispute continuing between the parties as to how a taxation liability should be quantified and allocated arising from a failure by the husband to prudently complete and lodge tax returns for himself and an entity 'the Wadlow Family Trust'. Suffice to say that evidence in respect of the taxation liability was not adduced in any sufficient fashion during the trial despite an unsuccessful attempt by the husband to bring evidence by a late affidavit sworn by an accountant only during the course of the trial.
Background facts
The wife is 46 years of age and the husband 39 years. They commenced cohabitation in 2003 and married in 2006. Separation occurred in June or July 2019.
The wife is employed in customer service. The husband works on a contract basis in construction.
In June 2006 the wife's father gifted her land on three titles situate at F Street, B Town in Tasmania. The titles are registered solely in the name of the wife. The fourth parcel of adjacent land was purchased in January 2013 for $165,000 and is also registered solely in the wife's name.
Despite their separation, both parties remain resident on the property at B Town albeit in separate residences. The wife lives in what might be termed a 'temporary house'. There have been issues with the Council building approval of this structure.
The husband lives in a dwelling known as the ‘horse arena’ which is an indoor facility comprising some accommodation of potentially four bedrooms but primarily an equestrian venue. It does not have current Council approval and has been the subject of Council notices and interim and interlocutory applications in this Court. During the course of the evidence in these proceedings the husband agreed that upon settlement he would vacate the property.
In 2008 the husband registered a corporate entity, K Pty Ltd. He is the sole director and secretary. The Company is the corporate trustee of the Wadlow Family Trust. The Company later made asset purchases including of real property and tangible assets such as motor vehicles, boats and trailer and equipment. The Company completed a subdivision of a property at L Town. The corporate entity seems to have been used as a tax effective means of the husband operating as a contractor.
All three children attend the G School. Despite the proximity of the parties’ residences, the children effectively live with the wife except for spending Saturday nights with the husband and some other informal times.
Relevant Law - Parenting
It is trite to observe that s 60CA of the Family Law Act 1975 (Cth) ('the Act') offers a fundamental proposition that it is the children's best interests that are the paramount consideration for the Court in determining living and parenting orders. Those best interests are determined by referencing the probative evidence and the parties’ proposals to the numerous and mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the objects and principals of the legislation set out in s 60B as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Act provides a presumption at s 61DA that parents have equal shared parental responsibility for their children. 'Parental Responsibility' is defined as:
‘the …duties, powers, responsibilities and authority which, by law, parents have in relation to their children.’
In realistic terms this means the responsibilities that normally manifest in parents for long-term important decisions for children in respect of issues such as education, religion, medical procedure and similar, as distinct from the more mundane day-to–day decisions that parents habitually make for their children.
Significantly, each of the parents proposes an order for equal shared parental responsibility but despite the presumption not applying where the Court is satisfied that there has been family violence or child abuse and where the wife in this case argues that she has been the victim of family violence of emotional, verbal, psychological and sexual types. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence that such be contrary to the children's best interests. Notably, the evidence here suggests a distinct lack of mutual trust, respect, cooperation, and communication.
The relevance of the presumption of equal shared parental responsibility or an order being made at the discretion of the Court is that the Court is mandated by the legislation to enter into a course of statutory and intellectual consideration in respect of children's living and parenting arrangements. Firstly, the Court is to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. Although the Court holds an ultimate discretion as to the children's best interests and living arrangements, neither parent asks the Court to make such an order. Relevantly, however, if the answer to either question in respect of the equal time arrangement is in the negative then the Court must move to consider whether the children living in a regime of 'substantial and significant time' between their parents is both in their best interests and reasonably practicable.
'Substantial and significant time' is defined in the Act[1] as:
[1] Section 65DAA(3).
(a) the time the child spends with a parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine;
(ii)occasions and events that are of particular significance for the child; and
(iii)the time the child spends with the parent allows the child to be involved in occasions and events little special significance to the parents.
The wife's position that the children should spend time with the husband each second weekend from Friday after school until Monday at the commencement of school does not fit comfortably with definition of 'substantial and significant time' above. The husband, however, does ask for substantial and significant time in that he pursues orders that the children spend time with him for five days per fortnight effectively being a long weekend commencing on a Wednesday after school until the following Monday at the commencement of school. The parents agree that the children spend one half of mid-year school holidays with each of the parents (although the wife appears to be asking for a period of seven days or one week, whereas the husband more discreetly asks for eight days which is effectively one half of the school holidays). The issue here, whilst an important one, is therefore a discrete one whereby the husband asked for five nights per fortnight whereas the wife proposes three nights.
The wife’s case-parenting
The wife provided an affidavit and was extensively cross-examined.
The wife argues that the children are settled and content with her being their primary parent. She says that the children have been exposed to the husband's violence and abuse of her evidenced primarily in the reluctance of the oldest child X to spend any additional or extended time with the husband. The wife says that the husband's commitment to the children is questionable given that he initially spent only irregular and sporadic time with the children in the months following separation and consequently does not demonstrate insight and capacity into the actual and emotional needs of the children. Further, she says that the husband's indebtedness to the Child Support Agency now sitting at $14,499 further indicates a lack of commitment.
I had the advantage seeing and hearing the wife give evidence. She was a good albeit unsophisticated witness. She was nervous in her evidence, but candid and responsive. Her demeanour in the witness box was corroborative to a degree of the complaint she has made in her evidence and to the family consultant of being the victim of coercive, controlling, emotional and/or sexual violence during the course of the relationship. She was able to particularise her evidence and gave the impression of being genuine.
The husband’s-case
The husband argues generally that the children's best interests would be served by him being involved in their education and extra-curricular activities and that orders for substantial and significant time would accommodate the same. He disputes and challenges the wife’s assertions of family violence including allegations that he was controlling, financially manipulative, and sexually assertive.
Counsel argues that the husband has shown his bona fides by agreeing, albeit only during the course of the trial, to vacate his current residence on the larger general property at B Town where the wife has complained that his continuing residence on that property is demonstrative of his controlling tendencies. The husband suggests that the children, particularly X, have been coached by the wife in respect of their preferences articulated to the family consultant.
The husband says the children enjoy their time with him and that he can provide a relationship for the children with members of the extended maternal family whom he says are estranged from the wife. He says that he has demonstrated skills and commitment including for the children staying with him overnight.
I also had the opportunity to see and hear the husband give his evidence. In many ways he came across as entitled, arrogant and smug in his responses and particularly when challenged in respect of financial matters where he had not made payments of child support and not prudently lodged taxation returns. He gave uncorroborated evidence in respect of the unilateral disposal of motor vehicles seemingly oblivious to his own complicity in the making of apparent false declarations. As an example, it was put to the husband that he had voluntarily been paying the wife $500 per week from July to September 2019, but abruptly stopped such payment. His response was that he had received a letter from the wife's solicitors to vacate the premises at B Town and that he ‘thought it was over and above …' and hence he immediately and unilaterally ceased those payments whilst remaining on the property. It was put to him that he was then some $6,314 in arrears of child support whereupon he responded glibly that he would 'have to pay it off…'
The husband candidly conceded that he had sold a number of assets, including numerous motor vehicles since separation without consultation with the wife or his solicitors because ‘we were not talking of the time…’
The husband’s demeanour in the witness box together with the tone and tenor of his responses in cross-examination gave some corroboration to the wife’s allegations of emotional and financial control by him during the course of the relationship.
The Family Consultant
Family consultant Ms M provided a report pursuant to s 11F of the Act dated 2 December 2020 and prepared after interviews on 30 November 2020 with the parents and children. Ms M gave evidence and was cross-examined.
In her report Ms M sets out the wife’s allegations of family violence during the course of the relationship detailing allegations of sexual, financial, controlling and emotional abuse. Ms M also sets out the husband’s denials and at [17] – [18] reports the following:
[17]The father reported he gave the mother the money when he was able to as he was “self-employed” and that he paid all the bills. The father suggested that he tried to involve the mother financially in the business but this caused challenges in their relationship.
[18]When it was put (sic) the father that the mother alluded to the idea she had no control or input into their lives, the father reported he worked long hours trying to maintain their lives and the mother was only interested in her horses. The father denied allegations of forcing the mother sexually indicating that over the past 4 -5 years their sex life diminished as the mother avoided him. The father denied manhandling the mother and reported he was “touchy feely” but the mother held herself apart from him physically which was a “kick in the guts” to him.
Ms M reports the wife being concerned as to the children's physical safety in the non–approved building inhabited by the husband and for their 'psychological safety. She reports some physical abuse of the children by the husband. At [21] – [22] of Ms M's report appears the following:
[21]The mother reported concerns for the children’s psychological safety with their father indicating that the children are unable to be themselves around their father and they have to “suppress” their behaviour. The mother provided an example indicating when the father came home from work after a brief chat to the boys he would want the boys to be “very quiet”. The mother indicated when the father showered the boys would come out of themselves, engage in activity and make noise. The mother does not think that the children should have been like that and reported since the separation they have “come out of their shells”.
[22]The mother reported that the father has previously smacked the children with a wooden spoon and washed one of the boy’s mouths out with soap.
The husband reported to Ms M that his current accommodation did not 'have issues' and that he and the wife have 'different parenting styles'.
Ms M offers some conclusions and opinions in respect of the relationship between the parents at [35] – [37] as follows:
[35]From the information provided the father does appear to have been dominant in the relationship and this will likely to continue until financial settlement takes place. The mother speaks in ways such as suggesting she has “put a stop to things” or “trained” the father which may give the impression of control by her to those outside of the relationship, but it does appear there was financially controlling behaviour by the father.
[36]The mother reported the father remaining on the property has caused a lot of difficult situation including some in front of the children. The mother described an incident where one of the boys returned home in the night and the father objected to him leaving and “aggressively ordered” the child back to his accommodation.
[37]The father gave the impression that the mother is controlling his contact and the contact is based on what suits the mother with her work arrangements.
Ms M had the advantage of interviewing the children. X was 11 years at the time. He came armed with a list of concerns bullet– pointed at [39] as follows:
[39]X listed the following concerns:
•X indicated that his father’s accommodation is messy and unsafe and he does not like this as previously he had sleepwalked. X indicated that there (sic) living conditions are “not the greatest”.
•X indicated that his father drinks beer, previously 3 or 4, but now sometimes 2 or 3 bottles.
•X reported that his father was “rude” to their neighbour (his friend who is 13) telling him to “go home” as they were going somewhere which was untrue.
•X reported that everyone is on his father’s side against his mother and listed off his relatives.
•X reported that his father is on Tinder and Snapchat.
•X indicated that when they recently bought a table tennis table, that he was concerned about how they would get it home safely and his father told him to “stop asking stupid questions”.
•X reported that his father talks on the phone when he drives.
•X reported that his father hit him with a wooden spoon when he was 6 or 7.
X reported his father as 'manipulative'. He also reported him as 'angry a lot for no reason'.
To the contrary, X was positive in respect of his mother and reported that he 'believes that his mother's time proposal is good that she would not enjoy spending more time with his father'.
X also reported that his father had tried to make his mother homeless and left the family without much money.
Ms M reported Y (aged 10) to be more cheerful and laid-back than X and 'did not appear to feel pressured like X'. Y also reported a good relationship with his mother but, from the report, appears more ambivalent than does his older brother in respect of the father.
Ms M reports the youngest child, Z (aged seven) as shy and reluctant to talk.
Ms M concludes that should the wife’s allegations of abuse by the husband be found to have substance then it would seem that the children were exposed to emotionally and psychologically abusive behaviour with obvious implications for the children moving forward. Similarly, however, she notes the husband's assertions of the wife struggling with grief and loss resulting in isolation, and mental health issues and, if accepted, also having a significant implications for the children's well-being.
Ms M noted that X, in particular, seemed impacted by current dynamics and she suggests a more structured arrangement to be ultimately of benefit to X and by implication, the other children.
Ms M recommends that the children stay in the wife's primary care with a regimented arrangement of the children moving to three nights per fortnight once the husband finds suitable alternative accommodation. This recommendation is now apparently accepted by the wife.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The evidence is of the children currently having a bonded and relatively successful relationships with each of the parents. There is some indication of alignment, particularly with X, to the wife which may have some nexus to his to exposure to the conflict in the relationship between his parents.
The evidence also suggests that the current living arrangements of the parents, effectively on the same property and in close proximity, not being conducive of the children fully developing independent relationships with their parents. The current dynamic is unusual and has the potential for continuing conflict to which the children will inevitably be exposed. The husband's commitment to obtain the separate accommodation may well benefit the flourishing of his own relationship with his three children.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The historical and current to conflict between these parents is palpable. Inevitably the children have been exposed to the dynamic between the parents. The proximity of the current residences is unhelpful and does not to permit the children to establish and maintain independent relationships with their now separated parents.
Having had the advantage of seeing and hearing the parties give evidence and be cross-examined, there are elements of the husband's demeanour which corroborate the wife’s assertions that she was subjected to various forms of family violence including control and coercion. Again, an acceptance of the relationship break down and some geographical distance between the parents will assist in alleviating this current dynamic.
The evidence of the family consultant suggests that X, in particular, and as the oldest child, is more understanding of the acrimonious relationship between his parents and potentially will suffer ongoing emotional or psychological impact should he continue to be exposed to it. Firstly, the relationship for the children with their mother, to whom they are already aligned, will be strengthened and flourish if distance is put between the parents. Secondly, however, the husband's own relationship with his children will similarly be solidified should the children be permitted to pursue that relationship independently of their primary relationship with the wife.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity and level of understanding) that the court thinks relevant to the weight which would be given to the child's views
X is clearly aligned with his mother and expresses a preference to remain primarily in her care. He shows some degree of reluctance and hesitation in his relationship with his father, but, as set out above, this should be mitigated by the simple fact of putting geographical distance between the parents.
The younger children were more ambivalent in their wishes and preferences consistent with their ages.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) any other persons (including any grandparent or other relative of the child)
The husband relevantly points out that he can continue a relationship for the children with members of their extended maternal family where the wife herself is apparently estranged from some family members. This would be of benefit to the children unless it was to further cause issues of alignment and misguided loyalties for them.
X is currently aligned to his mother and consistently so with his age and perhaps his greater awareness of the more recent conflict between his parents. He undoubtedly views his mother as his primary parent and source of dependency and support. There is likely a mutuality in that dependence. The younger two children have not yet 'taken sides' as has their elder brother.
It abundantly apparent that these children need time and distance to establish independent relationships with each of their parents and to be removed from the continuing conflict.
Section 60CC(3)(c) the extent to which it each of the child's parents has taken, or failed to take, the opportunity ;
(i) to participate in making decisions about major long – term issues risk in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child
The issue here is in respect of the husband's, significant and ongoing child support arrears. The wife asserts that the husband has been financially controlling. The evidence suggests that he has, in fact, controlled the finances noting that he has not lodged tax returns for the company/trust; that he unilaterally ceased paying support for the wife; and continues in significant arrears of child support. The evidence is that his income is not inconsiderable and, with the advantages of his company structure he should have been able to meet his child support obligations. His response in cross-examination and as set out above, in these Reasons is not indicative of this father currently having any proper insight into the needs of his children or more generally to the responsibilities of parenting.
Section 60CC(3)(d) the likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or person (including any grandparent or other relative of the child), with whom the child has been living
The children currently have physical proximity to each of their parents, albeit apparently only spending one night per week with the husband on a formal basis. The changes proposed by the husband are significant in that he suggests a move to five nights per fortnight with him. This would be accompanied by his physical move to another property. In circumstances where the child X shows some reluctance in respect of the husband and alignment towards the wife then any such increase in time may be problematic.
Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Although the husband anticipates moving away from the B Town property to a new location, it is not anticipated that any practical or logistical issues will arise.
Section 60CC(3)(f) the capacity of each of:
(i) the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, and including emotional and intellectual needs
The wife has a demonstrated capacity to attend to the children's physical needs. The husband complains that the wife herself suffers emotional issues of grief and isolation. There was no medical evidence adduced in support.
The wife says that the husband's capacity to attend to the children's needs suffers by reason of his coercive and controlling personality evidenced in exposing the children to family violence perpetrated on her. It is well-established that a child’s emotional welfare may be damaged or compromised by exposure to parental family violence. Notably, the oldest child, X is apparently aligned to the wife with a strong suggestion from his comments to the family consultant that he has been exposed to such family violence.
The husband's insight into the needs of children might also be questioned by his insistence to date in remaining at the B Town property despite the wife’s request for him to leave and the potential impact on the children of parental conflict by reason of them living in such close proximity.
The husband’s sense of entitlement noted in his evidence in Court, and in matters such as his accrual of substantial child support arrears, raises further questions as to his insight into the needs of the children and his commitment to attending to those needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The children are still young. There is evidence of some impact on them by reason of their parents’ relationship and the ultimate separation and the circumstances of them remaining in close residential proximity following separation. As a consequence, alignments and loyalties have developed.
Section 60CC(3)(h) if the child is an Aboriginal child Torres Strait Islander child;
(i) the child’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The husband's accrual of child support arrears in excess now near $15,000 impeaches his attitude to his parenting responsibilities as does his glib response in cross-examination that he will simply 'have to pay it off' in circumstances where he has disposed of numerous assets and apparently enjoys a comfortable income.
Section 60CC(3)(j) and (k) any family violence involving the child or a member of the child's family and any family violence orders
These issues have been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation the child
Trial judges aspire to make orders which will bring an end to litigation between parents in respect of their children. Such orders, however, are prospective in their nature and application and inevitably there will be changes in the circumstances of the parents themselves or the children such that could cause matters to be brought back to the Court. Nevertheless, it is generally accepted that litigation in respect of children can be a destructive process and have serious and negative impact on the children. As such, it is for the parents to move forward, armed with these reasons, in a cooperative and respectful manner so as to parent their children. Put simply, the issues and conflict evident now between these parents has the potential to cause further litigation unless they are able to allow these children to pursue individual relationships with each of their mother and father.
CONSIDERATION AND FINDINGS
The evidence satisfies me that the children have developed established and meaningful relationships with each of their parents. Those relationships, however, are stronger between the children and their mother to whom they look for support and dependency. This is most evident in the older child, X, who has been impacted to such an extent by his parent’s separation that he is now aligned to his mother and critical and resentful of his father.
I am reasonably optimistic that the husband's commitment to moving from the B Town property will give some comfort to the wife in her own the parenting of the children in turn allow the children to further develop their relationship with their father.
On the evidence and on the balance of probabilities, I am satisfied that the wife has made out her assertions of family violence in the relationship. Specifically, I am satisfied that there was violence in the form of coercive and controlling behaviour by the by the husband. I expect that the relationship was one of power imbalance with my observations of the husband in the witness box being of an entitled and empowered person whereas the wife presented as relatively timid and vulnerable.
Whilst the younger children are more ambivalent in their relationships with their parents, the oldest child, X has developed a support of his mother with a consequent resentment of the husband. His preferences are therefore to live with his mother. There is no evidence to allow a finding that X has been coached or manipulated by his mother rather, I expect, that he is old enough to rationalise his mother's own views and his own experiences of his father.
On the evidence I am satisfied that the wife has a demonstrated capacity to attend to the children's physical and emotional needs and despite her own vulnerabilities. Her parenting of the children will be enhanced by the husband's commitment to move from the B Town property. The husband’s criticisms of the wife such as her mental health are not justified on the evidence. In any event, he continues to delegate primary care of the children to her.
I maintain concerns as to the husband's commitment and insight into the needs of his children. His arrears of child support is indicative of not only his lack of prioritising of his children's needs but also of his entitled personality. Despite his pleas to this Court, I am not persuaded that the husband's motivation in seeking block periods of five nights per fortnight with his children is entirely altruistic or child focused, but more a situation where he pursues what he believes to be his ‘right’.
The children currently spend one night per week with the husband. It is the husband’s application to increase this to five nights per week and accompanied by him obtaining alternative accommodation away from the B Town property. Given the children's ages, their circumstances, and reactions to their parents’ separation, I consider this to be a considerable change for the children one of whom has already developed a resentment to his father and one which would require a demonstrated ability in the husband for commitment and insightful responsibility that I have not found.
The children are young and not of ages where they are fully capable of rationalising their own best interests in respect of their living and parenting arrangements. The older boy, X, at 10 years of age has expressed a preference. I expect that his preferences are influenced markedly by his loyalty to his mother as much as being a witness to the power imbalance in his parents’ relationship. Equally, I expect that his relationship with his father can and will develop if given a licence by the husband moving from the B Town property and by the husband showing greater commitment and insight.
I accept generally the husband's proposition that it would be beneficial for the children if they could see and understand him participating directly in their schooling and extracurricular activities such effectively denied him by the current minimal time-with arrangement. Again, however, this would need an actual commitment by the husband not yet demonstrated by him and most notably in him accruing substantial child support arrears.
In all of the circumstances, I am not persuaded that the children's best interests are served by an order that they spend five days per fortnight with the husband. This would represent a significant change for them from the current arrangements. They are still young. The oldest child, at least, is supportive of his mother and resentful of his father. In my view, X would likely to be negatively impacted by such a significant change in his regime and in his relationship with each of his parents. The parental relationship is conflictual and toxic without any reasonable early prospects of a communicative and cooperative parenting relationship and does not lend itself to the type of regime argued by the husband.
Nevertheless, there should be an increase in the children's time with their father so as to allow the development of their relationships in a way sympathetic to the children's particular needs in circumstances which allow the wife to gain confidence that the husband can develop the level of commitment needed to care for these young children.
On consideration, I am of the view that the children should spend time with the husband during school terms each second weekend from Friday after school until Monday at the commencement of school. This will allow the husband at least two direct interactions with school teachers on Friday afternoons and Monday mornings. It will allow block periods of time for the children to settle into the husband's care, his parenting style, and his accommodation. It is not time of such length as to impact negatively in respect of the current relationships with the wife where they very much see her as their source of dependency and support.
The time taking place over weekends will prevent unnecessary parental communication during school weeks with the majority of changeovers taking place at school.
As mentioned above, the parties have agreed school holiday time and the special days which will be incorporated into these orders.
Relevant Law – Property
Section 79 of the Act provides for the settlement or alteration of parties’ interests in property.
The Court must establish the property pool, including the elements of that pool, and attribute value to those elements. ‘Property' may include assets, liabilities and financial resources. Amendments to the Act provide that superannuation is to be 'treated as property' although often not capable of immediate crystallisation in the sense of a tangible asset. It is open for the Court to deal with the property pool on a 'one-pool approach' being inclusive of tangible assets and superannuation or, alternatively on a 'two-pool approach' where superannuation be dealt with independently of the tangible assets. Both parties here propose the one-pool approach given the relatively minimal quantum of the parties’ superannuation entitlements.
It is generally accepted that the value of the property pool and its elements is to be established as at the date of the trial.
The High Court in Stanford v Stanford[2]focused on the process for trial judges under s 79 and, in particular, the obligation at s 79(2) to determine whether it is just and equitable to make any orders for the alteration of property interests in the particular circumstances of the parties. This is an independent and discrete question for the Court and not one to be simply conflated with the considerations of contributions under s 79(4). Their Honours said at [40]:
… The question of whether it is just and equitable to make a property settlement order should not be answered by starting with the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s.79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an Order is "just and equitable" only because of and by reference to various matters in s.79(4) without a separate consideration of s.79(20, would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[2] (2012) 247 CLR 108.
Whilst acknowledging Stanford (supra), the Full Court also observed that, while contributions are not necessarily a determinative answer to the s 79(2) question, they may be a factor in determining whether there be justice and equity in entering into a consideration of altering property interests under the subsection.[3]
[3] Fielding & Nichols [2014] FCWA 77 at [42].
This relationship was of some 16 years duration. The parties have been separated since 2019 and remain acrimonious and conflictual. There is real property registered in the name of the wife to which the husband claims an interest under the Act. The wife claims that assets accrued during the relationship have been disposed of by the husband. The wife argues that the husband has contributed to liabilities or failed to meet liabilities of the relationship by his own unilateral actions including the failure to lodge tax returns. There have been many and varied contributions by these parties, both financial and non-financial, and to which varying degrees of weight are sought to be attributed. In all of those circumstances, I am comfortably satisfied that it is appropriate to enter into the consideration of altering the property interests as indeed is sought by each of these parties.
Having established the property pool and determined the issue under s 79(2), the Court must then consider the contributions by the parties, or on their behalf, to the acquisition, maintenance or improvement of the elements of the property pool in accordance with s 79(4) where such contributions may be of a direct financial type, indirect financial type, or non-financial contributions including as parent and homemaker.
After attributing weight to the various contributions the Court then moves to determine whether it be appropriate, just and equitable to make any further adjustment to either party from the pool on a consideration of the factors set out in s 79(4)(d) – (g) of the Act, including any relevant considerations under s 75(2).
The Issues – Property
To the great credit of the parties and their legal representatives, they have essentially agreed the property pool, its value and effectively its distribution. The only issue remaining for the Court is the percentage distribution with the wife seeking 85 per cent of the pool on a basis of a 70 per cent due to superior contributions and 15 per cent on account of s 75(2) factors. The husband concedes 10 per cent to the wife on contributions and 10 per cent on the s 75(2) factors, thereby asking for 30 per cent of the pool to himself and 70 per cent to the wife.
The parties agree that the husband has a taxation liability arising from the late filing of returns for the financial years ending June 2017, 2018 and 2019. The late lodgement will attract interest and penalties. The wife argues with some merit where the husband is the sole director of the trustee company and where she was oblivious to him not prudently lodging the returns then he should be responsible for the penalties and interest. The husband’s counsel, whilst conceding fault on the part of the husband, says that these penalties and interest remain a ‘liability of the marriage’ to be included in the pool with all other liabilities. Whist this argument is technically correct, it is effectively an academic one. The penalties and interest debt were struck after separation. The ‘negative contribution’ is solely by the husband. I have a wide discretion in determining my orders guided by justice and equity and in these circumstances justice is best served and most easily observed by the husband being solely responsible for what I see as post separation debts incurred by him alone.
Whilst the husband has apparently lodged at least two amended sets of returns now awaiting a ruling, it seems to me that the wife’s proposal makes not only common sense but is one with potentially the most financial benefit to both parties. She proposes ‘paper’ distributions to her of $20,000 for each relevant year which would reduce the husband’s tax payable by $22,780.54 total over the three years whilst not impacting on the wife’s Centrelink and child support entitlements. As the process is entirely legal then such an order seems irresistible as benefiting the husband directly. The evidence of the savings by the husband by reasons of a distribution of $20,000 each year as follows:
Original Liability Proposed Difference 2017 $18,921.65 $11,147.07 $7,774.58 2018 $6,509.00 (-$308.76) $6,817.76 2019 $17,818.92 $9,630.72 $8,188.20 Total $43,249.57 $20,469.03 $22,780.54 The Property Pool
The parties agree the property pool and the value of its elements, as per the aide memoire handed up by counsel for the wife in final addresses, as follows:
Ownership Description Value Wife F Street, B Town comprising:
a) Certificate of Title … Folio …
(N Valuers valuation 15.09.2020)
b) Certificate of Title … Folio …
(N Valuers valuation15.09.2020)
c) Certificate of Title … Folio … (N Valuers valuation 15.09.2020)
TOTAL$500,000
$190,000
$320,000
$1,010,000$1,010,000.00
Wife E Street, B Town $190,000.00 Wife Motor Vehicle 1 registration … $500.00 Husband Tandem Trailer (grey) registration … (P Valuers valuation 10.08.2020) $2,400.00 Husband Single Axle Flat Tray trailer unregistered (P Valuers valuation 10.08.2020) $850.00 Husband Box Tandem Trailer (green) registration … $5,000.00 Wife Farm Vehicle 1 (P Valuers valuation 10.08.2020) $10,000.00 Wife Ride-on mower (P Valuers valuation 10.08.2020) $3,000.00 Wife Farm Vehicle 2 (P Valuers valuation 10.08.2020) $9,500.00 Wife Diamond Chain Harrows (P Valuers valuation 10.08.2020) $600.00 Husband Linkage Slasher (P Valuers valuation 10.08.2020) $1,600.00 Husband Linkage Finishing Mower (P Valuers valuation 10.08.2020) $600.00 Wife New Wood Shield Posts – 4 Bundles (P Valuers valuation 10.08.2020) $2,400.00 Wife Farm Vehicle 3 (P Valuers valuation 10.08.2020) $5,000.00 Wife Farm Vehicle 4 (P Valuers valuation 10.08.2020) $1,800.00 Husband Recreational Boat registration Number … and Single Axle trailer registration … (P Valuers valuation 10.08.2020) $26,000.00 Wife Horse gear (P Valuers valuation 10.08.2020) $2,000.00 Husband Furniture & Contents as follows
a) Four Burner Hooded Gas Barbeque
(P Valuers valuation 10.08.2020)
b) Contingency Small Plant Equipment and garden tools
(P Valuers valuation 10.08.2020)
c) ATV trailer (P Valuers valuation 10.08.2020)
d) Epsom Overhead Projector
(P Valuers valuation 10.08.2020)
e) Victorian key safe (P Valuers
valuation 10.08.2020)
TOTAL$120
$3,000
$175
$500
$600
$4,445$4,445.00 Husband
15 round bales of silage at $65 net each
$975.00
Wife
ATV trailer (P Valuers valuation 10.08.2020)
$175.00
Husband
Assets of the business Q Company operated by K Pty Ltd ACN …
(deregistered 30.11.2020) as Trustee for Wadlow Family Trust as follows:
a) Farm Vehicle 5 (P Valuers
Valuation 10.08.2020)
b) Contingency value for workshop tools (P Valuers valuation 10.08.2020)
c) 20’ Shipping Containers
(P Valuers valuation 10.08.2020)
d) Rapid Spray Fire Fighting Tank with Honda Petrol Engine
(P Valuers valuation 10.08.2020)
e) Fertiliser Spreader (P Valuers valuation 10.08.2020)
f) WBC … …58
(30.09.2019)
g) WBC … …66
(31.10.2019)
h) WBC Bank undertaking security deposit … …75 (09.02.2018)
i) WBC Bank undertaking security deposit … …56 (17.05.2017)
j) WBC Business One Flexi – Mr O’s card
account … …33 (29.11.2019)
TOTAL
$48,000
$2,600
$4,400
$1,200
$150
$7,534
$20
$7,979
$19,886
$4
$91,773
$91,773.00
Total
$1,368,618.00
LIABILITIES Wife H Bank Mortgage Loan Account number …88 (23.08.2021) $281,265.00 Wife CBA Mastercard …37
(23.02.2021)$2,936.00 Husband Westpac Mastercard …97 (29.12.2019) $0.00 Husband Tax payable to the Australian Taxation Office $49,000.00 Total $333,201.00 Net tangible property $1,035,417.00
SUPERANNUATION Member
Name of Fund
Type of Interest
Value
Wife
Super Fund 1 Account …45 (04.03.2021)
Accumulation
$24,375.00
Husband
Super Fund 1 Account …65 (27.04.2020)
Accumulation
$77,145.00
Total
$101,520.00
Total property pool $1,136,937.00 Contributions
The relationship was of some 16 years duration. Unsurprisingly, therefore, there have been many and varied contributions of both financial and non-financial type. The relationship has produced three children.
A major issue between the parties is the weight to be given to the wife's financial contributions by way of the introduction of three titles at F Street, B Town in Tasmania which were gifted to her in 2006 which now comprise significant value in the property pool.
A second issue is the wife's claim of a 'negative' contribution by the husband in respect of constructions made without Council approvals on the property and, secondly, the accruing of a liability to the Australian Taxation Office including penalties for failure to lodge timely returns.
Both parties were in employment at the commencement of cohabitation. The husband was a manager. He had limited wealth. The wife worked in agriculture. Similarly, she was not a person of any great wealth at that time.
The husband was employed or self-employed substantially during the course of the relationship. He works in the field of construction.
The wife has agricultural qualifications and a diploma from TAFE. She continued in her casual employment at R Company until shortly prior to the birth of X and later returned to the workforce again in sales with T Company. More recently she has been in receipt of Job Keeper benefits.
In June 2006 the wife's father gifted to her the property at F Street, B Town, Tasmania comprised in three adjoining titles.
In September 2006 the parties purchased a rental unit at S Town with the assistance of a mortgage.
In December 2008 the parties purchased a property at U Street, L Town in Tasmania for $55,000 funded by a mortgage secured against the titles of F Street, B Town in Tasmania.
On 18 December 2012 the parties signed loan documents for the advancement of $515,000 further secured against the titles at F Street, B Town in Tasmania. From these funds a further property at E Street, B Town in Tasmania was purchased in January 2013 for $165,000.
The wife deposes at [27] of her affidavit and given the lack of specific challenge and on my observations of the parties during their evidence, I accept her assertions thus:
Between July 2013 and 9 April 2020, [the husband] borrowed additional sums totalling $49,451.49 by way of advances from H Bank secured against the existing Mortgages registered against the Titles of the B Town property. I was unaware of those additional borrowings.
In June 2015 the investment unit at S Town was sold with the proceeds reducing the balance of the H Bank loan to approximately $288,000.
In September 2015 the property at U Street, L Town in Tasmania having been subdivided, (and then known as V Street), was sold as to its two titles with the proceeds further reducing the mortgage loan.
Thereafter, the wife deposes, and I accept, that various assets were purchased including boats, trailers and motor vehicles. The husband's evidence is that various assets have been disposed and some since separation with his explanation as to the sale arrangements and the use of proceeds being less than detailed or satisfactory, although some are evident as successors in the property pool.
Between May and September 2019 the husband unilaterally arranged for trades people to complete improvements on an indoor horse arena constructed on the property at B Town. The wife says that she did not agree to, or give approval for such improvements. These works were completed without council permits or approval. The cost of these renovations/improvements is not detailed and not apparently evident in any valuation.
In about mid 2008 the husband registered a company K Pty Ltd as Trustee Company of a Family Trust of which the parties were both Trustees. The evidence suggests that the Company structure was arranged so as to be beneficial for the husband’s contracting employment and for various investments and purchases. The parties now agree the value of the assets of the Company and the quantum of liabilities. The wife is not an office holder in the Company.
It is the wife's evidence that she paid for valuations of property, plant and equipment for the purposes of these proceedings including mediations arranged for the joint benefit of the parties to assist an early resolution and without contribution by the husband.
At [64] of her trial affidavit the wife deposes:
On the 6 November 2019, I received a letter from the Australian Taxation Office comprising of a final warning to me for not lodging overdue tax returns for the financial years ended 30 June 2016, 30 June 2017, 30 June 2018. I had previously questioned [the husband], prior to our separation, as to whether all my tax returns had been lodged and he advised me that they had. I had not received from the Australian Taxation Office and earlier written warnings, which presumably had been retained by [the husband]. Upon receipt of the final warning from the Australian Taxation Office, I instructed an accountant to attend to the preparation and lodgement of my outstanding tax returns, which I funded.
Further, at [65] of that affidavit the wife deposes:
On 16 November 2019, I sent Mr Wadlow a text message confirming that I did not consent to [the husband] selling joint assets whilst our financial proceedings were pending. I also instructed my lawyer to send [the husband’s] lawyer a letter in similar terms.
Firstly, the husband’s evidence in Court concedes that he has, in fact, disposed of joint assets and therefore without the permission of the wife. As set out above, his evidence in respect of the use of those funds was unsatisfactory, as was his evidence in respect of any contracts and agreements for sale. Secondly, I am satisfied that the husband has not lodged tax returns relevant to the Company/Trust and has been dilatory without any real knowledge of, or certainly no contribution by, the wife. It is reasonable to conclude that his dilatory behaviour has caused penalties to be applied and interest to accrue.
The husband voluntarily paid informal spousal maintenance of $500 per month for three months in 2018. He unilaterally stopped this payment. He has also stopped paying the home mortgage except for one payment thereby extending the mortgage liability to $281,265. He has retained the benefit of the trust and his employment income.
The wife has been the primary care of the children since separation. Her responsibility has been compounded and increased by the husband accruing near $15,000 in child support arrears and without any apparent mitigation given that he has remained in well paid employment and with the use and benefit of the Company and Trust structures. On the evidence I am satisfied that he has retained the benefit of the majority, if not all, other proceeds of sale of assets such as motor vehicles since separation. Whilst the wife might successfully receive the benefit of child support in the enforcement by the Agency or through these Orders, the fact remains that her contributions to the care of the children has been made more onerous by the husband’s refusal to pay child support.
On my understanding of the evidence, these are the major contribution factors to be considered and allocated weight. Not unusually, there is some dispute as to the weight to be given to the gifts made by the wife's father in about 2006, but being mindful at times that the Court is considering the contributions in this matter on a holistic basis and at all times considering the myriad of contributions set out above.
The Full Court in Jabour & Jabour[4]relatively recently provided a comprehensive and critical examination of the authorities in respect of the sometimes vexed issue of weight to be attributed to initial or early financial contributions to a relationship of some duration. Their Honours in Jabour emphasised the holistic consideration (when not taking the asset-by-asset approach) and therefore a trial judge should not extract or isolate any particular contribution for specific consideration. There is, therefore, a melting pot of time, quantum, context, effect and relativity in respect of the consideration of contributions as, for example, in a longer marriage which will inevitably be impacted by numerous and varying contributions. Some assets are appreciating in value whereas some depreciate. Some can be identified as having a 'springboard effect' in relation to the current property pool and wealth of the parties. Some still sit at value in the property pool whilst others have been disposed of. Further, the Court should be cautious to not neglect the non-financial contributions. A Full Court in Wallis & Manning[5] at [117] their Honours:
The length of a marriage is important, then, in assessing the respective contributions of the parties, particularly when it is said that significant capital contributions made early in the marriage are a dominant feature of that assessment.
[4] [2019] FamCAFC 78.
[5] (2017) FLC 93-759.
An earlier Full Court in Pierce v Pierce[6] also considered early or initial contributions to a marriage of some duration and opined at [28]:
In our opinion it is not so much a matter of erosion of the contribution but a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
[6] (1999) FLC 92-844.
Notably the gifts of real property at F Street made to the wife in 2006 now sit at considerable value in the current property pool. However, the caution which the Court should take is evident from the comments of the Full Court in Dickons v Dickons[7] where their Honours observed at [14]:
As is plain from earlier decisions of this Court, regard must be had to use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of the relationship … But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial 'product' or 'value'. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[7] [2012] 50 FamLR 244.
Consequently, the Court must acknowledge and give weight to the contributions made by the wife early in this relationship by way of gift from her own father. They are still evident in the property pool and at significant value. They should not, however, be treated in isolation but rather to be weighed among the myriad of contributions by each of these parties during the entirety of the relationship and post-separation.
Neither party had any assets of considerable value other than motor vehicles at the date of commencement of the relationship. There were no significant superannuation entitlements. The real property gifted to the wife came in 2006 being some three years into the relationship but now some 15 years ago. Both parties contributed by way of their employment and, later in the relationship by way of a delegation of responsibilities, with the wife taking on the responsibility of homemaker/parent, whilst the husband pursued his productive and remunerative employment but with the wife retaining some employment. They bought and sold other real property. They borrowed against their assets, and indeed the assets gifted to the wife, for the purposes of investment. The wife has made some particular contributions since separation of both a financial and parenting type superior to those of the husband. Although specific orders may be structured in respect of the outstanding taxation liabilities, the husband has caused some loss by way of penalties and interest by non-lodgement of taxation returns. I am unable on the evidence to quantify any loss of wealth by reason of the husband’s continued occupation of an unapproved structure on the property. I have no definitive evidence as to whether that approval might be retrospective or at what cost? I do, however, have evidence adduced by the wife from Mr W, who provided an affidavit sworn 4 May 2021 and gave evidence and was cross-examined. Mr W is self-employed licensed builder. He deposes as being employed as building inspector for the C Region Council between October 2011 and March 2021 with permit authority under the Building Act 2016. He observed unauthorised construction of additional works to a garage in September 2019. He later viewed the 'Horse Arena building' and determined that the husband was occupying that structure. A Temporary Occupancy Permit was issued in respect of the garage apparently occupied by the wife and the children. No such authority was given for the horse arena and an email of 11 November 2020 from Mr W to the wife states in part:
Council is aware of and sympathetic to, your difficult situation as the property owner in that you have so far been unsuccessful convincing [the husband] to cease occupation of the building. However, I would strongly urge you to reconsider allowing your children to occupy the building; and, that you redouble your efforts to stop any occupation of the building.
It is certainly not Council’s desire to unnecessarily add to your problems. However, as the Permit Authority has already issued a Building Notice and a Building Order, the only recourse left is to begin issuing fines for the ongoing non-compliance.
Taking all of the above matters into account and balancing the myriad of contributions throughout the 16 year relationship and since post-separation I am of the view that a loading of 15 per cent of the property pool on account of contributions is just and equitable. I give significant weight to the contribution of the real property by the wife's father which sits overwhelmingly in the current pool of $1,136,937 net value with value of $1,010,000. Secondly, and with due respect to the parties, the property pool itself is not of considerable quantum or value relative to many of those that come before these Courts and contributions should be given weight on a 'reality test' accordingly and where the F Street titles were used as security for other purchases. There are other factors that also weigh in the wife's favour not least being her overwhelming contribution to the actual and financial care of these children in the now more than two years since separation and with some emphasis on the failure of the husband to meet child support obligations when he has been specifically assessed and has, on the evidence before me, enjoyed the capacity to meet those contributions towards his children's needs with those arrears now accruing to some $15,000. Within the context of the quantum of the property pool, this is a significant contribution by the wife. The husband has had the benefit of his superior income and the advantages of the family trust. Where his responsive evidence in Court was unsatisfactory, I can be less cautious or precise in finding that he has enjoyed the financial benefits of assets sold by him since separation without contribution to the wife.[8] The husband, of course, has also made contributions over the duration of this relationship. He has been employed throughout the marriage. He has contributed by his investment prowess. He has made non-financial contributions. The relationship was of sixteen (16) years duration and undoubtedly there have been a myriad of various contributions by both parties. However, taking into account the context, value, timing and effect of all those contributions I am satisfied that on an in globo basis an adjustment of fifteen per cent to the wife fives recognition, justice and equity.
[8] Weir v Weir (1993) FLC 92-338.
Section 79(4)(d) – (g) Factors – including s 75(2) considerations
The husband discloses an income of at least $100,000 per year. He retains the company structure and any taxation benefits that might flow. The wife will retain the primary care of the children who are relatively young and we will require some direct care.
The wife has some skills and experience in the workforce albeit more recently working casually in customer service. She could not be expected to achieve an income in the near future or potentially near that of the husband.
Whilst the husband is and will be assessed to pay child support, his history of timely payment is poor.
The wife seeks 15 per cent loading on account of the relevant s 75(2) factors. The husband concedes 10 per cent. The Court's adjusting process should consider the quantum of the property pool as any adjustment should not be token but have a realistic effect.[9] I take into account that the husband will need to accommodate himself and suitably so for the children to stay with him. Consequently, and where the net property pool is $1,136,937 dollars comprising predominantly of real property and where the wife, in all likelihood, will need to borrow to settle upon the husband then I am of the view, having regard to all of the above mentioned relevant is s 75(2) factors, an adjustment of 15 per cent of the property pool to the wife is just and equitable.
[9] Clauson v Clauson (1995) FLC 92–595.
Consequently, I find that the property pool is to be adjusted as to 80 per cent to the wife and 20 per cent to the husband.
The parties have agreed the distribution of assets as set out in these Reasons and accordingly I calculate that the wife will need to make a cash adjustment to the husband of $65,599.40, in accordance with the following:
Property retained by the wife
F Street, B Town comprising:
a) Certificate of Title … Folio …
(N Valuers valuation 15.09.2020)
b) Certificate of Title … Folio …
(N Valuers valuation15.09.2020)
c) Certificate of Title … Folio … (N Valuers valuation 15.09.2020)
TOTAL$500,000
$190,000
$320,000$1,010,000
$1,010,000.00
E Street, B Town $190,000.00 Motor Vehicle 1 registration … $500.00 Farm Vehicle 1 (P Valuers valuation 10.08.2020) $10,000.00 Ride-on mower (P Valuers valuation 10.08.2020) $3,000.00 Farm Vehicle 2 (P Valuers valuation 10.08.2020) $9,500.00 Diamond Chain Harrows (P Valuers valuation 10.08.2020) $600.00 New Wood Shield Posts – 4 Bundles (P Valuers valuation 10.08.2020) $2,400.00 Farm Vehicle 3 (P Valuers valuation 10.08.2020) $5,000.00 Farm Vehicle 4 (P Valuers valuation 10.08.2020) $1,800.00 Horse gear (P Valuers valuation 10.08.2020) $2,000.00 ATV trailer (P Valuers valuation 10.08.2020) $175.00 Wife’s Super Fund 1 Account …45 (04.03.2021) $24,375.00 Total $1,259,350.00
Liabilities retained by wife
H Bank Mortgage Loan Account number …88 (23.08.2021) $281,265.00 CBA Mastercard …37 (23.02.2021) $2,936.00 Total $284,201.00
The wife’s property less liabilities
Total property retained by the wife $1,259,350.00 Total liabilities retained by the wife (-$284,201.00) Total net property $975,149.00
Property retained by the husband
Tandem Trailer (grey) registration … (P Valuers valuation 10.08.2020) $2,400.00 Single Axle Flat Tray trailer unregistered (P Valuers valuation 10.08.2020) $850.00 Box Tandem Trailer (green) registration … $5,000.00 Linkage Slasher (P Valuers valuation 10.08.2020) $1,600.00 Linkage Finishing Mower (P Valuers valuation 10.08.2020) $600.00 Recreational Boat registration Number … and Single Axle trailer registration … (P Valuers valuation 10.08.2020) $26,000.00
Furniture & Contents as follows
a) Four Burner Hooded Gas Barbeque
(P Valuers valuation 10.08.2020)
b) Contingency Small Plant Equipment and garden tools
(P Valuers valuation 10.08.2020)
c) ATV trailer (P Valuers valuation 10.08.2020)
d) Epsom Overhead Projector
(P Valuers valuation 10.08.2020)
e) Victorian key safe (P Valuers
valuation 10.08.2020)
TOTAL$120
$3,000
$175
$500
$600
$4,445$4,445.00
15 round bales of silage at $65 net each $975.00 Assets of the business Q Company operated by K Pty Ltd ACN … (deregistered 30.11.2020) as Trustee for Wadlow Family Trust as follows:
a) Farm Vehicle 5 (P Valuers
Valuation 10.08.2020)
b) Contingency value for workshop tools (P Valuers valuation 10.08.2020)
c) 20’ Shipping Containers
(P Valuers valuation 10.08.2020)
d) Rapid Spray Fire Fighting Tank with Honda Petrol Engine
(P Valuers valuation 10.08.2020)
e) Fertiliser Spreader (P Valuers valuation 10.08.2020)
f) WBC …58
(30.09.2019)
g) WBC …66
(31.10.2019)
h) WBC Bank undertaking security deposit … …75 (09.02.2018)i) WBC Bank undertaking security deposit … …56 (17.05.2017)
j) WBC Business One Flexi – Mr O’s card
account … …33 (29.11.2019)
TOTAL$48,000
$2,600
$4,400
$1,200
$150
$7,534$20
$7,979
$19,886
$4$91,773
$91,773.00
Super Fund 1 Account …65 (27.04.2020) $77,145.00 Total $210,788.00
Liabilities retained by the husband
Tax payable to the Australian Taxation Office $49,000.00 Total $49,000.00
The husband’s property less liabilities
Total property retained by the husband $210,788.00 Total liabilities retained by the husband (-$49,000) Total net property $161,788.00
Total net property retained by the wife $975,149.00 The wife is to receive 80 per cent of the property pool which is (-$909,549.60) Total $65,599.40
The husband is to receive 20 per cent of the property $227,387.40 Total property retained by the husband (-$161,788.00) Total $65,599.40
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 7 October 2021
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