WAGSTAFF & WAGSTAFF
[2018] FCCA 927
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAGSTAFF & WAGSTAFF | [2018] FCCA 927 |
| Catchwords: FAMILY LAW – Property settlement – marital relationship – dispute about various addbacks – lack of financial disclosure – dispute about value of assets – dispute about alleged loans from husband’s mother – dispute about contributions during relationship – asset by asset or joint approach to dividing matrimonial pool. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Af Petersens & Af Petersens (1981) FLC 91-095 Brown and Brown (2007) FLC 93-316 Challen & Challen [2007] FamCA 1292 McMahon & McMahon (1995) FLC 92-606 Norman & Norman [2010] FamCAFC 66 |
| Applicant: | MS WAGSTAFF |
| Respondent: | MR WAGSTAFF |
| File Number: | MLC 8730 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 7, 8, 11, 12 and 13 December 2017 |
| Date of Last Submission: | 13 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr E Hall |
| Solicitors for the applicant: | Malkin Lawyers |
| Counsel for the respondent: | Mr J Salamanca |
| Solicitors for the respondent: | Gold Stone Family Lawyers |
ORDERS
PARENTING
The parents have equal shared parental responsibility for the children of the marriage, namely:
(a)[X] born 2011 (“[X]”); and
(b)[Y] born 2014 (“[Y]”) (“the children”).
The children live with the mother.
The children spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9:00am if a non-school day), commencing Thursday 31 May 2018;
(b)in the following week, from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Friday (or 9:00am if a non-school day);
(c)half of each of the school term holidays as agreed between the parties in writing, and failing agreement, the father to have the first half in odd years and the second half in even years with changeover to occur at 5:00pm on the middle Saturday of the term holidays unless otherwise agreed between the parties in writing;
(d)half of the long summer school holidays as agreed between the parties in writing, and failing agreement, the father to have the second half in odd years and the first half in even years with changeover to occur at 5:00pm on the first Saturday of January each year unless otherwise agreed between the parties in writing;
(e)in the event that the father’s birthday does not fall on a day that the father would normally spend time with the children, the children spend time with the father for a period of not less than six hours at times to be agreed between the parties in writing at least seven days prior to the father’s birthday, and failing agreement from 10:00am until 4:00pm;
(f)in the event that Father’s Day does not fall on a day that the father would normally spend time with the children, the children spend time with the father from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day unless otherwise agreed between the parties in writing, with the mother to have make up time the following weekend;
(g)for a period of not less than four hours on Christmas Day each year at times to be agreed between the parties in writing at least seven days prior to Christmas Day, and failing agreement from 2:00pm until 6:00pm in even years and 10:00am until 2:00pm in odd years;
(h)for a period of not less than four hours on Easter Sunday each year at times to be agreed between the parties in writing at least seven days prior to Easter Sunday, and failing agreement from 10:00am to 2:00pm in even years and 2:00pm until 6:00pm in odd years;
(i)in the event that the children’s birthdays do not fall on days that the father would normally spend time with the children, for a period of not less than four hours on each of the children’s birthdays, at times to be agreed between the parties in writing, and failing agreement from 3:30pm until 7:30pm if it falls on a school day or from 1:00pm until 5:00pm if it falls on a non-school day; and
(j)at such other times as may be agreed between the parties in writing.
For the purposes of changeover, unless otherwise agreed between the parties in writing:
(a)all school changeovers are to occur at the children’s school; and
(b)for all non-school changeovers, the father is to collect the children from the mother’s residence at the commencement of time and the mother is to collect the children from the father’s residence at the conclusion of time.
In the event that the mother’s birthday does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 3 be suspended, and the children spend time with the mother for a period of not less than six hours at times to be agreed between the parties in writing at least seven days prior to the mother’s birthday, and failing agreement from 10:00am until 4:00pm.
In the event that Mother’s Day does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 3 be suspended, and the children spend time with the mother from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day unless otherwise agreed between the parties in writing, with the father to have make up time the following weekend.
The parties attend and complete, as soon as practicable:
(a)a parenting apart post-separation parenting program (“the program”) at an organisation or organisations as nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other parent or his or her solicitors.
Each party must:
(a)keep the other parent informed at all times of their residential address, contact telephone number and email address and advise the other parent within 24 hours of a change to these details;
(b)keep the other parent informed at all times of the names and contact details of any treating medical or other health practitioner who treats the children or either of them and these orders authorise such practitioner/s to provide the other parent with any reasonable information about the children; and
(c)inform the other parent, as soon as practicable, of any medical condition, significant health issue or illness suffered by the children or either of them.
The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings,
to or in the presence or hearing of the children or either of them and from permitting any other person so to do.
Each party keep the other informed of changes to the children’s health while the children are in their respective care and as soon as practicable, notify the other parent of any medical emergency involving the children or either of them.
These orders shall act as an authority for any treating medical practitioner and health care provider associated with the children to release and provide the other party with all information that they are lawfully able to provide about the children as requested by the party from time to time (at the requesting parent’s cost).
Upon the child [Y] reaching the age of 12 years, the parties may revisit the time spent arrangements by attending family dispute resolution with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria).
Each party be at liberty, subject to any direction to the contrary from any school at which the children attend, to:
(a)attend parent/teacher interviews separately for the children or either of them;
(b)obtain copies of all school reports, school newsletters, school photographs and any other documents that parents are normally provided with; and
(c)attend any school organised events, activities or functions to which parents are ordinarily invited including but not limited to concerts, carnivals, fetes, family days
and these orders shall act as an authority for same.
All parenting applications otherwise be dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
PROPERTY
Within 30 days from the date of these orders (“the date”), the husband pay to the wife the sum of $60,000 (“the payment”) in satisfaction of his half share of the Bank 1 Loan account number (“the portfolio loan”).
That contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to be solely liable for and indemnify the husband against all payments and liabilities pursuant to the portfolio loan;
(b)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the property situate at and known as Property A being the land more particularly described in Certificate of Title Volume Folio (“the Property A property”);
(c)the wife be solely liable for and indemnify the husband against all payments and liabilities pursuant to the mortgage registered number (“the Property A mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the Property A property of whatsoever nature and kind;
(d)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, any and all of her right, title and interest in the property situate at and known as Property B being the land more particularly described in Certificate of Title Volume Folio (“the Property B property”);
(e)the husband be solely liable for and indemnify the wife against all payments and liabilities pursuant to the mortgage registered number (“the Property B mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the Property B property of whatsoever nature and kind; and
(f)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the Share Portfolio 2 shares account number and Share Portfolio 3 shares.
In the event that the whole of the payment has not been made by the date then the Property B property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the Property B mortgage and any other encumbrance affecting the Property B property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules to the wife; and
(d)fourthly, the balance then remaining to the husband.
Pending the payment or completion of the sale:
(a)the wife have the sole right to occupy the Property A property and during such right of occupation, the wife pay all instalments pursuant to the Property A mortgage and all rates and taxes and like apportionable outgoings of the Property A property as they fall due;
(b)the husband have the sole right to occupy the Property B property and during such right of occupation, the husband pay all instalments pursuant to the Property B mortgage and all rates and taxes and like apportionable outgoings of the Property B property as they fall due;
(c)the parties hold their respective interests in each said property upon trust pursuant to these orders; and
(d)neither party encumber the other’s said property without the consent in writing of the other party.
The husband otherwise retain, to the exclusion of the wife, all items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a)his bank accounts and savings;
(b)his personal belongings and effects;
(c)the Motorcycle P motorcycle;
(d)the Motor Vehicle X;
(e)the Motor Vehicle Y; and
(f)his superannuation contributions and entitlements with Super Fund D.
The wife otherwise retain, to the exclusion of the husband, all items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a)her bank accounts and savings;
(b)her personal belongings and effects;
(c)the Motor Vehicle Z motor vehicle; and
(d)her superannuation contributions and entitlements with Super Fund E.
The husband be solely liable for and indemnify the wife against any liabilities in his name or encumbering any item of property which he is to retain pursuant to these orders.
The wife be solely liable for and indemnify the husband against any liabilities in her name or encumbering any item of property which she is to retain pursuant to these orders, including but not limited to:
(a)the portfolio loan; and
(b)her HELP debt.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be divided equally and the account/s closed;
(c)insurance policies remain the sole property of the policy owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
(A)Pursuant to section 81 of the Family Law Act 1975 (Cth), these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Wagstaff & Wagstaff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8730 of 2016
| MS WAGSTAFF |
Applicant
And
| MR WAGSTAFF |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for orders with respect to parenting and property matters under the Family Law Act 1975 (Cth) (“the Act”).
The applicant mother and wife is 34 years old and is employed as an (occupation omitted) on a part-time basis. The respondent husband and father is 40 years old and is employed on a part-time basis as a (occupation omitted).
There is a dispute as to the date of cohabitation. The applicant wife says that cohabitation commenced between 2004 and 2005 whereas the respondent father says that it commenced in 2006. The parties were married on 2009 and the parties finally separated in March 2015. There is also a dispute as to a short separation which occurred at some stage in 2008. On either version, this separation was only of some months’ duration although slightly less on the wife’s version.
There are two children of the marriage, namely [X] born 2011 (“[X]”) and [Y] born 2014 (“[Y]”) (collectively referred to as “the children”).
Issues in dispute
The following issues were in dispute with respect to parenting:
a)with whom the children should live – the mother seeks an order that they live with her and spend time with the father whilst the father seeks an order for equal shared care; and
b)if the children are to live with the mother, the amount of time the father should spend with the children.
Ultimately, the following issues were in dispute with respect to the property proceedings:
a)how the property at Property B (“the Property B property”) which the husband owned prior to cohabitation ought to be treated;
b)whether regard ought to be had to ‘loans’ that the husband allegedly received from his mother;
c)the value to be attributed to various motor vehicles, a motorcycle and boat owned by the husband; and
d)what, if any, sums ought to be added back into the pool.
The wife’s case initially was that a Bank 1 portfolio loan (“the portfolio loan”) which she and the husband had jointly entered into for the purchase of some shares in 2011 ought to be solely the husband’s liability. This claim was ultimately not pressed.
Summary
In relation to parenting matters, I have determined that it is in the children’s best interests that:
a)the parents have equal shared parental responsibility for the children;
b)the children live with the mother and spend time with the father in accordance with the orders attached to this decision;
c)the children spend time with each parent on special days, occasions and during school holidays; and
d)both parents attend a post-separation parenting program.
In relation to property settlement, I have decided that a just and equitable outcome in this matter would see orders that result in the non-superannuation assets divided between the parties so that the husband receives 55% and the wife receives 45%, with the parties each retaining their respective superannuation entitlements.
The reasons for my decision are as follows.
Background
Chronology of events
| 1977 | Birth of the husband/father |
| 1983 | Birth of the wife/mother |
| 1998 | Husband purchases the Property B property |
| 2004/ 2005 (Wife) 2006 (Husband) | Parties commence cohabitation |
| 2008 | Period of separation before reconciliation. Wife moves out of the Property B property |
| 2008 | Parties purchase the Property A property together |
| 2009 | Parties marry |
| 2011 | Parties borrow $120,000 in part to invest in shares |
| 2011 | Birth of [X], currently 6 years old |
| 2014 | Birth of [Y], currently 3 years old |
| March 2015 | Parties separate. Husband vacates matrimonial home and wife continues to live there with the children |
Procedural history
It is common ground that post-separation and between March and September 2015, the parties tried to agree on parenting matters.
Over the course of September, October and November 2015, the parties participated in family dispute resolution through the Family Relationship Centre and reached an agreement on parenting matters (“the parenting agreement”).[1]
[1] Annexure W8 of the affidavit of Mr Wagstaff filed 24 October 2017.
The parenting agreement provided for the children to live with the mother and spend time with the father in the terms as set out in the parenting agreement. Essentially, the father’s time was limited to daytime periods. It also provided for additional time with either parent as agreed. The parenting agreement also provided certain restraints on the parties consuming alcohol whilst the children were in their respective care.
On 13 September 2016, the applicant wife initiated these proceedings seeking orders relating to both property and parenting matters. At the first return date on 24 October 2016, the parties reached agreement in relation to both parenting and property matters pending the final determination of this matter. An order was also made on that date for the parties to attend on a family consultant and the matter was adjourned to a further mention after that report was released.
When the matter came back before his Honour Judge Reithmuller on 12 December 2016 and with the benefit of the initial report from the family consultant, Ms J (which is discussed in more detail below), the court made further orders by consent (“the December 2016 interim orders”).
In relation to parenting matters, this provided that:
a)the children were to commence spending time with the father from the conclusion of school or childcare on Friday (or 3:30pm) until the commencement of school or childcare on Monday (or 9:00am) each fortnight;
b)in the alternate week from the conclusion of school or childcare on Monday until 6:00pm on Tuesday; and
c)provision was also made for time during school holidays and over Christmas.
The matter came on for final hearing on 2 November 2017 but was not able to be heard on that day. Further consent orders were made on that date for, among other things, further discovery, an updated family report and that the final hearing be adjourned to 7 December 2017 for three days (“the November 2017 consent orders”).
No changes were made at that time to the December 2016 interim orders.
Pursuant to the November 2017 consent orders, the wife filed an amended initiating application and updated financial statement on 22 November 2017. The husband did not file an amended response or an updated financial statement.
The final hearing commenced on 7 December 2017 and ultimately took five days, not three. As the Christmas break was imminent, the parties, to their credit, agreed to some further consent orders dealing with time spent over the Christmas 2017 period.
Proposals of the parties
Parenting
At the hearing, the wife’s proposal in relation to parenting arrangements was set out at pages 22 to 26 of her outline of case document filed on 6 December 2017. In summary, that provided for:
a)the children to live with the wife;
b)the children to spend time with the husband:
i)each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;
ii)in the other week, from the conclusion of school on Thursday to the commencement of school on Friday, subject to the husband being able to take time off work and if he is not able to do so to take responsibility to arrange suitable childcare and pay for same;
iii)for half of all school holidays;
iv)on special days to be shared with the wife; and
v)various other terms relating to access and participation in the children’s school activities, communication and the like.
The husband’s proposal was essentially that the children live with the parties on an equal shared care basis. He was open to how this might work, namely whether it would be on a week about or some other basis and similarly that holidays and special occasions be equally shared with particular arrangements in relation to birthdays and the like.
Property
The husband sought orders which would result in the distribution of the asset pool (other than superannuation) on the basis of a 60/40% split in his favour and that each party would retain their current superannuation balances. The husband’s proposal would:
a)see him:
i)retain the Property B property and the mortgage associated with that property;
ii)retain his motor vehicles, motorcycles and other personal items;
iii)retain his shares; and
iv)make a payment to the wife in the sum of $20,000; and
b)see the wife:
i)retain the property at Property A and the mortgage associated with that property;
ii)take on sole liability for the portfolio loan; and
iii)retain her vehicle and other personal possessions.
The wife sought orders that there be a split of the non-superannuation pool in the proportions of 70% to the wife and 30% to the husband and a superannuation split to equalise their entitlements.
Documents relied upon by the parties
The wife relied upon the following documents:
a)amended initiating application filed 22 November 2017;
b)notice of risk filed 13 September 2016;
c)financial statement filed 22 November 2017;
d)affidavit of Ms Wagstaff filed 12 October 2017; and
e)affidavit of Ms M filed 22 November 2017.
The husband relied upon the following documents:
a)amended response to an initiating application filed 5 October 2017;
b)affidavit of Mr Wagstaff filed 24 October 2017;
c)financial statement filed 30 October 2016;
d)affidavit of Ms R filed 25 October 2017;
e)affidavit of Mr Wagstaff filed 4 December 2017; and
f)affidavit of Ms H filed 24 February 2017.
The parties both relied upon:
a)affidavit of Ms J, family consultant filed 17 October 2017; and
b)affidavit of Ms J, family consultant filed 6 December 2017.
Evidence
The parties each gave evidence in this matter and were subjected to very extensive cross examination. I had the benefit of observing each of them providing their evidence.
In addition, I had the opportunity to hear oral evidence from the wife’s mother, the husband’s mother and Ms R, a representative from the husband’s employer. I found each of them to have been witnesses of truth who sought to answer the questions put to them in an open and transparent manner.
The husband’s mother was unable to explain the basis of the caveat placed on the Property B property in her name, and in particular was not able to produce the charge on which that caveat appears to have been based. I do not make any adverse finding in relation to the husband’s mother’s evidence flowing from this inability. The caveat was placed on the property with the benefit of legal advice. It was apparent that the husband’s mother did not know what a ‘charge’ was. Leaving aside whether she in fact had a caveatable interest, I do not make any adverse findings in relation to her credit.
I also had the benefit of hearing from the family consultant, Ms J who was also subject to questioning by both the parties’ representatives.
To his credit, the husband conceded in cross examination that the children are well settled and well cared for by the mother.
Counsel for each party asked me to make adverse credit findings against the opposing party. Having observed both parties in the witness box, I make the following general observations:
a)I find the husband to have tried his best to answer questions honestly. Whilst it is the case that he was not as clear on dates and times that things occurred and was less than clear on exactly what amounts he ‘borrowed’ from his mother, I find that he was not intentionally seeking to mislead the court. Rather, these matters were simply not of significance to him and therefore they were not issues that he made specific note of.
b)Both parties made allegations against the other in terms of their behaviour and aggression towards the other during the relationship. However, during my observations, the husband’s description was more balanced and neutral whereas the wife, both in her affidavit material and during cross examination, consistently painted a picture of her husband as a man who was not contributing financially or otherwise to the family, who put his friendships and other interests ahead of the family and who was not really involved in, or capable of, looking after the children. A particular example of this was the wife’s responses to questions from the husband’s counsel about the need for the husband to be involved in the children’s lives and the fact that the wife’s proposal (as it was then understood as being only two days a fortnight) would result in the husband being a ‘weekend dad’ to which the wife responded: ‘He has always been a weekend dad.’ [2]
c)Moreover, the husband made concessions in favour of the wife. A particular example of this was when the husband said, in a poignant moment in response to a question from his counsel to describe the nature of his relationship with the wife:
It was off and on the whole time. It was volatile a bit, so… when we were in love, we were in love. And when we were not in love, we were hating each other. It was sort of one extreme to the other... I fell in love with her and I was probably fishing in depths I shouldn’t have been fishing in. So I just was in love, and things were blind and I sort of tried to make things work as both of us probably did, if that answers the question (emphasis added).[3]
d)I also note the family consultant’s comments in the course of cross examination that the wife’s approach to the parenting dispute may have been influenced by the dispute between the parties over the property matters. In response to some questions from me about the impact of the wife’s application as it stood until she filed her amended outline of case on 6 December 2017, the following exchange occurred:
Does that alter your view of any concern about her capacity to support a positive relationship between her children and their father? --- I may be talking out of my turn, but I think it is to do – lot to do with the property settlement issues they have, your Honour. It’s more than – I thought that it’s – there’s a whole lot of tension and a focus on the property settlement issues.[4]
e)Following this exchange, the husband’s counsel then asked the family consultant:
So do you mean by that that you think that she’s tactically putting in a two out of 14 regime in order to get a better property settlement? – I believe so.[5]
[2] Transcript page 99 at lines 45 to 46.
[3] Transcript page 363 at lines 41 to 46.
[4] Transcript page 412 at lines 9 to 14. The wife’s amended outline of case document sought that the children should spend two days a fortnight with the father despite spending four nights a fortnight with him for the past 12 months.
[5] Transcript page 412 at lines 18 to 20.
Family violence
Family violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) goes on to relevantly provide:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)…
…
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)…
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)…
(i)…
(j)…
(3)For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4)
Examples of situations that may constitute a child being
exposed to family violence include (but are not limited to) the child:
… (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or…
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Both parties make allegations in this case of the other having engaged in conduct which, if proven, would constitute family violence within the meaning of the Act.
It is clear from the evidence that the relationship between the parties was, using the husband’s phrase, ‘volatile’. Both parties described the commencement of their relationship as a ‘whirlwind’ or words to that effect. Indeed the wife’s case is that cohabitation started shortly after they first met.
The husband, who disagrees with the wife’s view about the date of cohabitation, concedes that in the early days, the wife did stay over at his house for roughly half the time, although he says that there was no actual pattern to when she stayed over; rather, that she would stay over and then when they fought, she would return to her parents’ home.
On either party’s version, their relationship was peppered with verbal altercations on a regular basis and some acts of physical violence. The difference between them is the alleged perpetrator of any physical violence.
Wife’s evidence
The wife’s case was that she was the victim of verbal, physical and financial abuse at the hands of the husband. She points to the following specific incidents in support of this:
a)in May 2008, the wife alleged that the husband hit her with his crutches. She says that this is what precipitated her leaving the relationship at that time (“the crutches incident”);
b)in December 2012, the wife alleged that the husband attended her work Christmas function and was intoxicated and that this led to another argument between them (“the incident at Christmas”);
c)in 2013, the wife alleged that the husband pushed her down the stairs resulting in bruising to her arm (“the incident on the stairs”);
d)in October 2015, the wife alleged that the husband was verbally abusive towards her outside of [X]’s kindergarten (“the kindergarten incident”); and
e)the wife alleged that the husband, following an argument, dragged her by the throat, which resulted in her obtaining an intervention order (“IVO”) against him.
The husband denied each of these allegations.
In relation to the incident on the stairs, the husband stated that he and the wife were having an argument and that he was trying to remove himself from the situation to allow them both to calm down. He deposed that she was blocking his way on the stairs and that in trying to leave the stairs, he moved her to the side. He denied applying force or pushing her. I prefer the husband’s description of what occurred.
In relation to the incident at Christmas, the husband admitted that he attended her work Christmas function and that he had consumed alcohol on that occasion, but denied both that he was intoxicated when he arrived or during the evening. The wife alleged that following a heated argument about the husband’s inebriated state on the way home, the wife got out of the car and the husband drove off with [X] in the car, leaving the wife by the side of the road. The husband conceded that the parties had an argument and that he drove home and left her on the side of the road but denied that either of them was intoxicated.
In relation to the kindergarten incident, the husband gave evidence that the wife had been refusing to allow the children to spend time with him and was not responding to his telephone calls and text messages about this. As such, he attended the kindergarten as he knew that she would be there and simply asked when they could discuss his time with the children. I prefer the husband’s evidence in relation to this incident and do not accept that this was an act of family violence against the wife.
The wife further alleged in June 2016, post-separation, that the husband attended the former matrimonial home to collect the children and asked for a copy of the children’s’ birth certificates and their marriage certificate which the wife refused to supply. After the husband left the former matrimonial home, the wife alleged that she noticed that her house key had been taken. The wife reported this to the police and alleged that the husband may have taken them. The police records of this event note the following:
Police attended at his address and asked him. He stated that he didn’t and hadn’t seen her keys while there at the house. Parties are separated. Nil IVOs in place. Nil threats, assaults, damage. Appears, at this stage, that the parties are going through separation and disputes over property.’ [6]
[6] Transcript page 123at lines 38 to 41.
Although the wife made an application for an IVO on the basis of this incident, this was not granted.[7]
[7] Transcript pages 123 to 126.
The wife further alleged that during the relationship, the husband kept his financial affairs separate from the wife’s, did not disclose his true earnings to her and did not keep her informed and involved in the decision making regarding the shares they purchased with the portfolio loan obtained in their joint names.
It is conceded that the husband and wife did not totally combine their finances. This was a decision which they made very early in their relationship. Whilst the wife may well have preferred a more integrated approach to their finances, this decision alone does not amount to financial abuse.
The parties agreed to jointly obtain a portfolio loan in the sum of $120,000 to purchase a parcel of shares in the sum of $100,000 and a car for the wife. Whilst the wife alleged that she was kept in the ‘dark’ about this loan and the share transactions, she conceded in cross examination that she in fact did have access to the loan statements from the Bank 1.
Moreover, the husband gave evidence that he discussed these shares with the wife during their marriage and indeed also discussed them with the wife’s father. The wife’s father was not called to give evidence although he was present in court throughout the trial.
I prefer the husband’s evidence in relation to the portfolio loan and related share purchases. I do not find that the husband kept the wife in the ‘dark’ about these shares or that his dealings with these shares could be characterised as any form of financial abuse. I find that the parties jointly decided to take out a loan to purchase shares in the hope that they would derive some profit and add to the family’s resources. Unfortunately, this did not occur and the shares dropped in value.
The wife also gave evidence that the husband had a problem with alcohol and that he was banned from a number of local hotels as a result of this. She pointed to the fact that in December 2013, he attended a 28 day rehabilitation program in response to his alcohol use.[8] The husband conceded that he attended a rehabilitation program and that he learned some important strategies there. He denied however, that he needed to attend and says he only did so as the wife demanded it.
[8] Paragraph 54 of the affidavit of Ms Wagstaff filed 12 October 2017.
Husband’s evidence
For his part, the husband alleged that the wife became physically violent towards him on a number of occasions. He gave the following examples:
a)On one occasion in or about 2008, after an argument between them, the husband tried to diffuse the situation by going to bed. He says the wife came into the bedroom and threw a plastic VCR at him hitting him in the face and causing his lip to bleed profusely (“the lip incident”). He produced a photo of the lip incident. When asked about this during cross examination, the wife stated that the husband had been ‘extremely inebriated’.[9] The wife gave evidence that she acted in response to the husband’s inebriation and aggression towards her in the lead up. The wife also gave evidence that the husband forced her to film an apology following the lip incident. The husband denied this and said he had no such video. The wife’s mother also gave evidence about the husband having shown her the video of the lip incident. No video was produced to the court. I prefer the husband’s evidence in relation to this incident. I find the wife’s attempt to excuse her behaviour unconvincing.[10]
b)The husband also claimed that both he and the wife consumed alcohol to excess from time to time. He produced a picture of the wife on the floor on the evening of 2012. The wife stated that she had recently finished breastfeeding [X] and had gone out socially. She deposed that ‘after a period of not having indulged in alcohol for quite some time, almost two years, I obviously didn’t handle it too well and went to sleep on the floor.’[11]
c)The husband gave evidence that on 2011, the wife hit him over the head with a vase ‘because she thought I had touched a pile of clothes.’ [12] During cross examination, the wife stated ‘…I don’t recall that incident at all so I don’t know what the circumstances around that would be’[13] and at another point stated that it was a fabrication.[14]
d)I prefer the husband’s evidence in this regard. Having regard to the husband’s candour and the wife’s preparedness to overstate her complaints about the husband and minimise any actions on her own part, I am satisfied that it is more probable than not that this vase incident did occur as described by the husband.
e)The husband alleged that in about October 2015, the wife became abusive towards him during a telephone call when she had the children in the car. She denied this and asserted that the husband embellished the incident. Following this incident, the husband gave evidence that he filed an application for an IVO against the wife and the wife in turn applied for an IVO against the husband.
f)The husband further alleged that during another argument between the parties, the wife threw a mop on the ground with such force that it broke and she also threw a beer bottle at him with such force that it made an indentation in the wall. The husband tendered a video of this incident which the wife disputed proved the allegations made by the husband. This incident occurred in March 2015 and appears to have been one of the final incidents which culminated in the parties’ separation. The wife denied throwing a beer bottle at the husband but admitted to throwing the mop on the ground. She maintained that the husband embellished the incident. The wife gave evidence that the parties had an argument on the day in question and she threw the mop on the floor in frustration. I accept that this was another example of the volatility of the parties’ relationship.
g)It is also conceded that the wife lost her drivers’ licence for having an alcohol reading over 0.05 BAC in 2016. Whilst the wife conceded this occurred, she sought to underplay it and her alcohol consumption. She gave evidence that her blood alcohol count was 0.09 and her licence was suspended for six months. She stated that she was with the husband as the parties were seeking to have discussions about whether they might reconcile. She said that they had shared a bottle of wine and ‘the situation became more aggressive’.[15] When asked how sharing a bottle of wine could put her over the legal limit, she responded ‘I only weigh 50 kilos. It doesn’t take much.’[16] The husband’s evidence with respect to this was that they had shared more than a bottle of wine. He stated:
I think we shared two bottles of red and we drank a pistol full of tequila we picked up on our (country omitted) honeymoon over in (country omitted), which is probably about 250 mls, and we shot that, plus we drank the wine and we – we were – you know, we had quite a few. It wasn’t one bottle of red, where she has driven off. [17]
[9] Transcript page 114 at line 15.
[10] Transcript pages 115 to 116 generally and 131.
[11] Transcript page 117at lines 16 to18; transcript pages 117 to 118 generally, and transcript pages 163 to 165.
[12] Paragraph 19 of the affidavit of Mr Wagstaff filed 20 October 2016.
[13] Transcript page 131 at lines 20 to 21.
[14] Transcript 119 at line 17.
[15] Transcript page 121 at line 31.
[16] Transcript page 121 at line 36.
[17] Transcript page 236 at lines 30 to 34.
Consistent with my assessment of the witnesses outlined above, and having had the benefit of observing both witnesses in the course of extensive cross examination, I prefer the evidence of the husband on this issue. To his credit, the husband also conceded that this was the wife’s only driving offence, that the children were not in the car at the time and that the wife has since got her licence back.[18]
[18] Transcript page 237 at lines 28 to 31.
The husband maintained that whilst he was a social drinker, he in fact did not have any problem with alcohol and that he only attended the 28 day rehabilitation program as this was a requirement that the wife imposed to allow him to return to the family home.
Having regard to the totality of the evidence, I find that during the relationship, both the husband and the wife consumed alcohol to excess from time to time and that this contributed to the volatility of their interactions.
On the basis of the totality of the evidence, I find that there was family violence in the relationship between the parties and that, at different times, this was perpetrated by each of them against the other. I also find that it is likely that the children witnessed or heard some of these incidents which amount to family violence.
Other relevant matters
Communication between the parents
The evidence clearly establishes that communication between the parties is poor.
The husband gave evidence that he is keen to establish positive communication between himself and the wife to enable them to parent the boys. He indicated that he would be prepared to attend a post-separation parenting program in order to facilitate this.
The family consultant gave evidence that the poor communication between the parties was a key factor weighing against a shared care arrangement as sought by the father. Having said that, the family consultant did indicate that in her view, at least from the mother’s perspective, communication between the parties might improve once property matters were finalised.
Parenting
Family report assessment
Ms J, family consultant, undertook an initial assessment and prepared a report dated 5 December 2016. Ms J then saw the parties and the children again and prepared an updated family report dated 5 December 2017.[19] Ms J also appeared in court and was cross examined for some time during these proceedings.
[19] Affidavit of Ms J filed 17 October 2016 and affidavit of Ms J filed 6 December 2017.
The recommendations made by Ms J in her first report were essentially implemented in the consent orders made by his Honour Judge Reithmuller on 12 December 2016 (“the December 2016 interim orders”). These orders provided for the children to live with the mother and spend time with the father each alternate weekend from Friday after school to Monday morning and in the alternate week from Monday after school to 6:00pm on Tuesday evening.
In her first report, Ms J made the following relevant observations:
[[X]] seemed quite anxious and physically fidgeting… [X] seemed on guard and he did not remember why he had come to see the writer. He just stated that he wanted to make his ‘dad happy’. He did not want to elaborate on that.[20]
…In the mother’s company the children were relaxed and asked for food, water and a nappy change was done in relation to [Y]… the children seemed securely attached to their mother and they explored the toys in the room with age appropriate curiosity… Ms Wagstaff seemed well aware of the nature and behaviour of the children and attuned to the needs of her children.[21]
In the company of the father, both children demanded his attention. It seemed that they liked to play with their father…[22]
Mr Wagstaff engaged positively with both the children. He was careful about the safety issues relating to the children. He reminded [X] to say ‘thank you and please’ in his communication…[23]
Mr Wagstaff attended to both his children according to their age related needs… The father was affectionate and attentive towards [X] and [Y].[24]
During the report interview, the writer recognised that [X] and [Y] have enjoyed a positive relationship with their father and mother. Their relationship with Mr Wagstaff impressed as fun and play time for the children.[25]
[20] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 56.
[21] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 59.
[22] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 60.
[23] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 61.
[24] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 63.
[25] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 79.
Ms J went on to say that in her assessment, the father put his needs ahead of those of his children. As an example, she noted that shortly after separation, the parties had reached an agreement regarding the care of the children and that the mother alleged that the father took a trip to (country omitted) for a month without any notice to the mother and without telling her when he would return. Ms J went on to say:
If the mother’s information is true, it would establish that
Mr Wagstaff prioritised his emotional needs and left the mother in a lurch on that occasion.[26][26] Annexure J-1 of the affidavit of Ms J filed 17 October 2016 at paragraph 81.
At the hearing, the father conceded that he went to (country omitted) with a friend for 28 days and did not give the mother notice. He gave evidence however, that the reason he did not tell her was that he felt that she would somehow prevent his attempt to get away. He gave evidence that the wife held onto his passport and did not return it to him so he had to get an emergency passport. He stated that the reason he did not tell her was because ‘she would have done everything in her power to stop me going.’[27]
[27] Transcript page 359 at line 40.
In re-examination of this issue, the husband said:
After the stress of the last three years beforehand and the mental anguish and pain I had been through… I was highly, highly stressed, and… a mate suggested that we get away and just have a break. And the reason why I didn’t… tell Ms Wagstaff, because she would have done everything in her power to stop me going, and I also – which was very, very hard for me… I had to program myself weeks prior to not even being able to speak to my boys for that period of time, but I did need to get away. But if Ms Wagstaff knew that I was away, there would be a chance in hell she would have allowed me to contact the boys. It would have been used against me. So I had to – it was very hard to have to make that break…[28]
[28]Transcript page 359 at lines 36 to 45.
I accept the father’s evidence in this regard. It is certainly the case that leaving in that manner would have left the wife without his assistance in caring for the children. The lack of communication between the parties at the time, to which both parties had contributed, was a significant factor in the father not discussing his plans and reaching an agreement with the mother about this time away.
The mother gave evidence that she has taken two holidays (admittedly of a shorter duration) during time when she did not have the children in her care. The court is not concerned with the fact that the father took a break, but rather the parties’ lack of communication and failure to reach agreement on how the children’s needs would be best met during this absence that warrants concern. To that extent, I find that the parties both contributed to the breakdown in communication at that point in time. I am also satisfied that, as discussed further below, since the December 2016 interim orders, the father has spent consistent time with the children.
In her updated family report dated 6 December 2012, Ms J made the following observations and comments:
The wife reported, ‘even the four nights per fortnight regime seemed overwhelming for the children at times.’[29]
[29]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 7.
… as soon as the writer asked about the home matters, [X] seemed to become totally uncomfortable, took deep breaths and fidgeted in his seat. It seemed that he wanted to say something but he could not articulate his thoughts… He finally stated that he had come to tell the writer that it is not fair that his father has less time than his mother and he wanted 50/50 because that is fair to his father…[30]
[30]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 paragraph 24 to 25.
Just before his father came in to interact with the children, [X] became physically stiff and looked anxiety stricken.…As the door opened, [X] faced his father and blurted out ‘I did remember to tell her 50/50 and it is not fair that mum has more time with us’ which indicated that [X] was primed up to express such a wish that would please his father.[31]
The mother attended to both children evenly and interacted positively with the children. Ms Wagstaff seemed well attached to her children and was child focussed during her interactions with them.[32]
During Mr Wagstaff’s time with the children, it was observed that
Mr Wagstaff gave most of his attention to [X] and spoke to him as if they were mates. [X] seemed eager to please his father and appeared quite subdued in the presence of his father. [Y] did not seem to mind and seemed used to that scenario.[33]Based on the presentation and observed behaviour of [X] with his father, it is evident that [X] is under pressure to please his father. It is also likely that without even realising, Mr Wagstaff may be placing considerable emotional burden on [X] and expects him to fight his battles. [X] has a strong bond with his mother and he is doing well in the current regime. Mr Wagstaff should free [X] from unrealistic expectations and allow him to settle in his mother’s primary care.[34]
There is also a concern that although Mr Wagstaff may love both his children equally, he is unable to provide an equal level of attention and affection to them.[35]
As [Y] was very young when the separation occurred, there is a need to strengthen his bond with his father. He is too young to be separated from his primary care parent for an extended time. In addition, given the ongoing hostile relationship between the parents and lack of sensible communication between them, the 50/50 care is not a suitable arrangement for the children in this case. [36] (emphasis added)
The best interests of children after parental separation are most strongly connected to the quality of parenting they receive as well as the quality of the relationship between their parents, and not to any pattern of care or amount of time. The children are likely to feel positive when shared time arrangements are flexible and child-focused, when their parents get along and they have input into decisions about the details of their living arrangements.[37]
Frequent moves between the households, different parenting styles with constant change of the caregivers, the distance between the homes, the level of conflict between parents bring added practical and emotional difficulties for children. High ongoing parental conflict, miscommunication between parents, mind manipulation of the children by the parents and rigid personalities makes shared parenting difficult for children and the stress and burden outweighs the benefits.[38]
The writer also observed that the parents are very stressed about their financial settlement. Mr Wagstaff mentioned a couple of times that the mother wanted an unreasonable settlement that is likely to make him homeless in the future. He is concerned that he will not be able to have children (sic) in his extended care at all if that situation occurs. The writer is not able to make further comments about the issue. However, both parents need to be fair in their expectations relating to their financial settlement and be mindful that if they fail to do so their children would emotionally pay for it in the long run.[39] (emphasis added)
[31] Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 26.
[32] Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 28.
[33] Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 29.
[34] Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 37.
[35]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 38.
[36]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 39.
[37]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 41.
[38]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 42.
[39]Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraph 43.
On the basis of these observations, Ms J recommended the following:
a)that the parents have equal shared parental responsibility;
b)that the children live with the mother and spend time with the father under a 4/10 arrangement, with the one night in the off week moving from a Monday to a Thursday night; and
c)the children spend the first part of each holiday period with the father.[40]
[40] Annexure J-1 of the affidavit of Ms J filed 6 December 2017 at paragraphs 46 to 49.
At the hearing, Ms J maintained her view that a shared care arrangement was not appropriate in the present circumstances but conceded that if there was to be any additional time, one more day could be added to the first week so that the children spent from Thursday after school to Monday morning in one week, and then Thursday after school to Friday morning in the second week with the father.
Ms J did note that one of her concerns when preparing her recommendations related to the unpredictability of the father’s work schedule. The evidence before the court is that the father’s employer can accommodate any order of this court for time spent with the children without risking the stability of his employment.[41]
[41] Transcript page 389 at lines 5 to 45.
When this evidence was put to Ms J, she confirmed that notwithstanding the removal of this consideration, she would still not recommend a shared care arrangement in this instance.
When the father’s counsel put to Ms J that the mother might not be appropriately supporting their relationship with the children and that this might provide a basis for increased time with the father, Ms J responded as follows:
Even then I would say the increase of time could be in the holidays, not during the school time school days, because children are very young, and it is going to be disruptive going between two households, like, more than what is happening at present.
…
…the more time away from the primary home is – generally is not very conducive for children’s settlement. Maybe at the most another day could be added to father’s time … but not more than that …[42]
[42] Transcript page 420 at lines 6 to 9 and lines 34 to 37.
In closing submissions, this aspect of her claim was all but abandoned. The wife’s claim therefore that the disproportionate costs associated with the litigation was caused by the husband’s running of the case rings hollow.
Findings as to asset pool
On the basis of the findings above, the net available asset pool for distribution between the parties comprises the following:
Assets
Ownership
Value
Property A
Joint
$565,000
Property B
Husband
$300,000
Share Portfolio 2 shares
Husband
$35,132
Motorcycle P
Husband
$14,000
Motor Vehicle X
Husband
$1,000
Motor Vehicle Z
Wife
$9,996
Motor Vehicle Y
Husband
$2,000
Share Portfolio 3 shares
Husband
$851
Husband’s legal costs (add back)
Husband
$22,692
Wife’s legal costs (add back)
Wife
$1,000
Total assets
$951,671
Liabilities
Ownership
Value
Property A mortgage
Joint
$332,246
Bank 1 Loan
Joint
$120,000
Property B mortgage
Husband
$42,962
Higher Education Loan Program (HELP)
Wife
$18,816
Total liabilities
$514,024
Net assets
$437,647
Contributions
It is not disputed that this court must give consideration to both financial and non-financial, direct and indirect contributions of the parties. This includes contributions as a parent and homemaker. The issue in this case is the dispute between the parties as to what each party actually contributed over the course of the relationship.
Initial contributions
The parties significantly disputed the date of cohabitation. The wife asserted that cohabitation commenced in 2004. The husband asserted that cohabitation commenced in about 2006 or 2007.
I find on the basis of the evidence that cohabitation commenced in early to mid-2005.
At the commencement of the relationship, I accept that the wife had minimal assets and income. She was studying and had an accumulated debt associated with those studies which continued to accrue in the early stages of the relationship.
The husband purchased the Property B property in 1999.
By the commencement of cohabitation, the husband had owned the Property B property for some six years and had significantly paid off the mortgage on that property. The husband’s home loan statements reveal that by October 2005, he had an outstanding amount of approximately $18,000 owing on the Property B property.[101]
[101] Exhibit V.
It is conceded that but for the ownership of the Property B property, the parties would not have been able to purchase the Property A property and therefore the husband’s contribution was significant at the commencement of cohabitation.
On this basis, I find that the husband made a significant initial contribution.
Contributions during the relationship
Significant evidence was led by the wife about the husband’s failure to contribute financially to the relationship. She also stated that she took on the principal homemaker role even when she was working.
The husband’s evidence is that he worked when work was available and contributed financially. The evidence is that in the early stages of the relationship, the wife did not work whilst she completed her studies. She then commenced working, initially on a full time basis and then, on a part time basis, after the children were born and after taking a period of maternity leave following the birth of each child.
The parties by and large kept their finances quite separate from each other. The two exceptions to this were the purchase of the Property A property and the portfolio loan obtained principally to purchase some shares.
It is not disputed that the wife’s earnings have outstripped those of the husband’s since she completed her studies and since he took up a role as a (occupation omitted). The wife’s evidence however, was that when the husband said he wanted to work as a (occupation omitted), she supported him in that decision. Similarly, the husband financially supported the wife whilst she was living with him early in their relationship and completing her studies.
In considering contributions, section 79(4) requires that this court give due regard not only to direct and indirect financial contributions but also to non-financial contributions.
Having considered the evidence and having heard from the parties, and having regard to the terms of section 79(4)(a) to (c), I find that the parties each contributed equally during the relationship.
Contributions post-separation
I find that the parties’ contributions post-separation are also equal. Whilst the wife has been paying more for the mortgage on the Property A property, she has had the benefit of residing in a home which, on the evidence, is of a higher quality and standard than the Property B property in which the husband has been residing.
The section 79(4)(d), (e), (f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making do not impact on the earning capacity of either party to the marriage.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
The following section 75(2) matters are relevant in this case.
(a) the age and state of health of each of the parties; and
Both parties are relatively young and in good health. The husband’s evidence that he has suffered from a back condition in the past does not seem to have affected his ability to continue to work in his chosen job. His evidence about his job clearly demonstrates that he loves his work and will continue to perform it as long as he is able.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The husband works as a (occupation omitted) for (employer omitted). The evidence is that since 2012, his gross annual earnings have ranged from between $31,000 and $37,000 per annum.[102] The evidence suggests that the husband also generates some further money from time to time through the purchase and sale of motorbikes and motor vehicles and also through some share trading activities.
[102] Exhibit AA.
The husband has the capacity to take on additional work and further supplement his income either at the (employment omitted) or elsewhere.
The wife works as an (occupation omitted) and is currently working part time, three days per week.
Correspondence from the Child Support Agency indicates that the wife had an income of $73,480 for the year ending 30 June 2017. [103] The evidence also supports a finding that she has the capacity in future to work full time should she choose to do so.
[103] Exhibit I.
The wife argued that the husband has a greater earning capacity should he choose to take on a full time role. I accept the husband’s evidence that his work on the (employer omitted) is paid at a higher rate than other (employment omitted) work he might obtain but he is limited in the number of shifts he is able to obtain.
I also note that this is a case in which both parents seek to have an active role in their children’s lives and wish to be physically available for their children by not working full time.
Accepting this to be the case, I find that the wife has a higher earning capacity when compared to that of the husband, even if she continues to work on a part time basis, and have had regard to this in my decision.
It was also argued on behalf of the husband that the wife was in a new relationship which she sought to underplay as it might adversely impact the way in which this litigation might unfold. The wife for her part rejected this and said that she had not tried to hide her relationship, that it was still early days and that she was not sure how this relationship would progress. Given the early stages of this new relationship, I am not satisfied that it is appropriate to have regard to it in what is just and equitable in terms of property orders.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
The parenting orders that I propose to make will see the two children, currently 6 and 3 years of age spending 9 nights per fortnight with the wife, and 5 nights per fortnight with the husband.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself;
(ii) a child or another person that the party has a duty to maintain
I have had regard to the parties’ respective commitments and their ability to care for themselves and the children of the marriage.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and
This is not a relevant consideration in this case.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The asset pool in this case is modest. The proposed orders will see each party retain a home with associated liabilities and a standard of living which is reasonable in all of the circumstances.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
This is not a relevant consideration in this case.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
Both parties, to their credit, wish to have a significant role in their children’s lives. The proposed orders will bring finality to these proceedings and will not inhibit their ability to continue to fulfil their respective roles as parents.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration in this case.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
This is not a relevant consideration in this case. The husband has indicated that he is prepared to pay whatever child support is assessed by the relevant authority and these orders will not impact on that.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
In this case, the court considers it relevant that the asset pool is relatively modest and the orders will allow each parent to retain a property with some level of indebtedness. The fact that the wife’s income is greater than that of the husband’s is a factor in determining what is just and equitable in this case.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration in this case.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration in this case.
Whether it is just and equitable to alter the parties’ property interests
I have dealt with this consideration above.
What order is just and equitable?
It is well accepted that the exercise of the court under section 79 is not a strict mathematical one. Rather, the considerations outlined above are simply a tool to assist the court to come to a principled decision on what would amount to a just and equitable division of assets between the parties when weighing the various factors referred to above.
Although pursuant to the parenting orders, the children will live with the wife, they will spend 5 nights a fortnight and equal time during school holidays with the father. Each parent will need to provide a home and reasonable accommodation to facilitate their time with the children.
Regard also needs to be had to the section 75(2) factors which weigh in favour of the father in this instance. Even if he were able to obtain full time employment as suggested by the wife, his earning capacity is significantly lower than the wife’s.
In relation to superannuation, whilst the husband has slightly more superannuation at this stage, it is likely given the wife’s current earnings and higher earning capacity that her superannuation balance will soon exceed the husband’s. Justice and equity in this instance does not require any further adjustment in respect of superannuation entitlements.
Having regard to all of the circumstances discussed above, I am satisfied that just and equitable orders would see:
a)the wife retain or receive 45% and the husband retain or receive 55% of the non-superannuation assets; and
b)each party retain their respective superannuation entitlements.
To give effect to the above division, I propose making orders providing for:
a)the wife to retain the Property A property (and associated mortgages and liabilities);
b)the husband to retain the Property B property (and associated mortgages and liabilities);
c)the husband to retain the Motorcycle P, the Motor Vehicle X and Motor Vehicle X;
d)the wife to retain the Motor Vehicle Z;
e)the husband to make a payment to the wife in the sum of $60,000 in respect of half of the portfolio loan and the wife take on sole liability for the portfolio loan;
f)the husband to transfer the Share Portfolio 2 shares and the Share Portfolio 3 shares to the wife;
g)the wife to retain sole liability for her HELP debt;
h)each party to retain any cash in all bank accounts in their respective names; and
i)each party to retain their superannuation entitlements.
I find that orders giving effect to these reasons are just and equitable and I therefore make the orders set out at the beginning of these reasons.
I certify that the preceding two hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 23 May 2018
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