Walter and Walter
[2012] FMCAfam 434
•6 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTER & WALTER | [2012] FMCAfam 434 |
| FAMILY LAW – Property and parenting orders – contributions made by each of the husband and wife’s parents and wife’s family company – loan advanced to wife – wife income earner until cessation approximately two years ago – earning capacity – husband primary caregiver until approximately two years ago then by order shared care arrangement – parties not supportive of continuance of shared care – wife claims husband has manipulated the children – s.75(2) matters considered. |
| Family Law Act 1975 (Cth), ss.75(2), 90MT(1)(b), 60CA, 60CC(2), 60CC(3), 61DA(1), 65DAA Family Law (Superannuation) Regulations 2001 (Cth), reg.14F Superannuation Industry (Supervision) Regulations 1994 (Cth), reg.7A.03, 7A.05, 7A.11 |
| Applicant: | MS WALTER |
| First Respondent: | MR WALTER |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | MLC 6449 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 26, 27, 28 and 30 September 2011 7 and 8 November 2011 |
| Date of Last Submission: | 2 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Carew Counsel Pty Ltd |
| Counsel for the First Respondent: | Mr Weil |
| Solicitors for the First Respondent: | Kennedy Partners |
| Counsel for the Independent Children’s Lawyer | Mr Keirnan |
| Solicitors for the Independent Children’s Lawyer | T J Mulvany & Co |
THE COURT ORDERS THAT:
Children
All previous parenting orders be discharged.
The husband and the wife (‘the parties’) have equal shared parental responsibility for the children of the marriage:
(a)X born (omitted) 2000;
(b)Y born (omitted) 2002; and
(c)Z born (omitted) 2004.
The children live with the husband.
The children spend time with the wife as follows:
(a)during the school term, in a fortnightly cycle:
(i)in week 1:
A.on Monday evening from the conclusion of school until 7.30pm;
B.from the conclusion of school Thursday until the commencement of school the following Monday; and
(ii)in week 2:
A.from the conclusion of school Wednesday until the commencement of school on Thursday.
(b)for one half of each school term holiday period at such dates and times as agreed between the parties and in default of agreement:
(i)in 2012 and each alternate year thereafter the wife to have the first half; and
(ii)in 2013 and each alternate year thereafter the wife to have the second half.
(c)for the Christmas school holidays:
(i)in 2012 and each alternate year thereafter, for the first two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence on the last day of school term in 2012; and
(ii)in 2013 and each alternate year thereafter, for the second two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence two weeks after the last day of school term in 2013.
(d)in respect of sub-paragraph (b) and (c) hereof the school holiday periods shall be those as applicable to (omitted) Primary School until Z commences her secondary schooling.
(e)on Christmas Day:
(i)from 12.30pm on 25 December 2012 to 3.00pm to 26 December 2012 and each alternate year thereafter; and
(ii)from 3.00pm on 24 December 2013 to 12.30pm on 25 December 2012 and each alternative year thereafter; and
(f)on the wife’s birthday:
(i)if it falls on a weekday, from 6.00pm to 9.00pm; and
(ii)if it falls on a weekend or during the school holiday period, from 10.00am to 7.00pm.
(g)on the children’s birthdays:
(i)if it falls on a weekday, from 4.00pm to 6.00pm; and
(ii)if it falls on a weekend or during the school holiday period, from 10.00am to 5.00pm.
(h)on Mother’s Day in each year, from 10.00am to 7.00pm; and
(i)at such further or other times as may be agreed between the parties.
The wife’s time with the children be suspended:
(a)on Father’s Day in each year, from 10.00am to 7.00pm;
(b)on the husband’s birthday:
(i)if it falls on a weekday, from 6.00pm to 9.00pm; and
(ii)if it falls on a weekend or during the school holiday period, from 10.00am to 7.00pm.
(c)on the children’s birthdays, should the children be in the wife’s care:
(i)if it falls on a weekday, from 4.00pm to 6.00pm; and
(ii)if it falls on a weekend or during the school holiday period, from 10.00am to 5.00pm.
For the purpose of changeover:
(a)changeover take place at the children’s schools at those times that coincide with the start and finish of school;
(b)in relation to paragraph 4(a)(i)(A), the wife deliver the children to the husband’s residence at the conclusion of her time; and
(c)in relation to holiday times and special events the parent who is commencing or resuming time with the children collect them from the other parent’s residence.
There be reasonable telephone and Skype contact between the children and the parent with whom they are not living.
Each of the parties be restrained from denigrating the other party and discussing these proceedings, or the contents of any documents filed in these proceedings, with or in the presence or hearing of the children and from permitting any other person to do so.
In the event that a child or the children require any urgent medical treatment, the other parent to be notified at the first available opportunity by the parent with whom they are living at that time and in the event that a child or the children are hospitalised both of them be at liberty to attend and remain at the hospital.
Neither party remove the children from the Commonwealth of Australia without the prior written consent of the other or further order of the Court.
Nothing herein contained shall restrict either parent and any member of the extended family or household of either parent, subject always to any direction of any Principal or delegate of the Principal of any school attended by the children from time to time, from attending sporting events, performances, annual or periodic events to which parents and extended family are customarily invited.
The wife be permitted to continue X’s enrolment at (omitted) School for the 2012 school year and thereafter each year until she has completed Year 12 and all educational expenses (being tuition, computer, uniform, book and school arranged extra-curricular expenses) in relation to X shall be the responsibility of the wife. This same order shall subsequently apply to each of the children Y and Z when they enter Year 7. Y and Z are otherwise to continue their enrolment to the completion of Grade 6 at (omitted) Primary School.
The wife be restrained by injunction from informing or reporting to the children or any parents of the children at their schools that she is funding the tuition expenses for the children’s education at the (omitted) School.
The wife be permitted to take X to counselling sessions with her if the wife feels same is necessary. Such counselling shall be funded by the wife and shall not extend for a period beyond three (3) months unless agreed to by the husband.
Until the Independent Children’s Lawyer advises the lawyers for the father and mother that he has explained the orders herein to the children, each of the husband and wife by themselves, their servants and/or agents are hereby restrained from informing any of the children of these orders, and discussing these orders and the proceedings in the sight and/ or presence and/or hearing of any of the children or on social media including Facebook.
On receipt of a letter from the Independent Children’s Lawyer to the lawyers for each of the parents confirming the completion of the process of explanation of orders to the children, the order for the appointment of the Independent Children’s Lawyer be discharged.
Property
The monies invested in the joint names of the parties with Mason Sier Turnbull representing the net proceeds of sale of the jointly owned property situated at Property S in the State of Victoria together with the interest thereon be forthwith applied as follows:
(a)the sum of $249,000 to (omitted); and
(b)the balance remaining to be divided as to $156,045.60 to the wife and the balance to the husband.
The wife shall be solely responsible for the payment of the overseas (omitted) credit card in the joint names of the parties and indemnify the husband with respect to any such liability.
The husband and wife provide to each other (within 7 days hereof) an updated valuation of all of each of their respective superannuation interests at 31 January 2012.
In accordance with s.90MT(1)(b) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)the husband is entitled to be paid the specified percentage of each splitable payment out of the wife’s interest in CBUS Super Fund membership number (omitted) (‘the CBUS fund’); and
(b)the wife’s entitlement to payment out of her interest in the CBUS fund and the entitlement of such other person to whom a splitable payment may be made is correspondingly reduced by force of this order.
The specified percentage for the purpose of order 20 of these orders is 50 percent.
The Trustee of the CBUS fund (‘Trustee’) shall do all acts and things and sign all such documents as may be necessary to:
(a)calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the husband created in paragraphs 20 and 21 of these orders; and
(b)pay the entitlement whenever the Trustee makes a splitable payment out of the wife’s interest in the fund.
After service of the payment split notice pursuant to reg.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) the husband shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in his name in the fund.
The parties note that:
(a)the value of the transferable benefits to be transferred from the wife’s interest to the husband’s interest will be calculated by the Trustee in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and
(b)pursuant to reg.14F of the Family Law (Superannuation) Regulations 2001 (Cth) any payments made from the wife’s interest in the CBUS fund after the Trustee has created a new interest in the husband’s name as contemplated by paragraph 23 are not splitable payments.
Paragraphs 20-22 have effect from the operative time.
The operative time for the purpose of these orders is fourteen (14) business days after the date of service of a sealed copy of this order upon the Trustee.
In accordance with s.90MT(1)(b) of the Act:
(a)the wife is entitled to be paid the specified percentage of each splitable payment out of the husband’s interest in the Australian Super Fund member number (omitted) (‘the Australian Super Fund’); and
(b)the husband’s entitlement to payment out of his interest in the Australian Super Fund and the entitlement of such other person to whom a splitable payment may be made is correspondingly reduced by force of this order.
The specified percentage for the purposes of paragraph 27 of this order is 50 percent.
The Trustee of the Australian Super Fund (the ‘Trustee’) shall do all acts and things and sign all documents as may be necessary to:
(a)calculate in accordance with requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement for the wife created by paragraphs 27 and 28 of these orders; and
(b)pay the entitlement whenever the Trustee makes a splitable payment out of the husband’s interest in the Fund.
After service of the payment split notice pursuant to reg.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in her name in the fund.
The parties note that:
(a)the value of the transferable benefits to be transferred from the husband’s interest to the wife’s interest will be calculated by the Trustee in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and
(b)pursuant to reg.14F of the Family Law (Superannuation) Regulations 2001 (Cth) any payments made from the husband’s interest in the Australian Super Fund after the Trustee has created a new interest in the wife’s name as contemplated by paragraph 30 are not splitable payments.
Paragraphs 27- 29 have effect from the operative time.
The operative time for the purpose of these orders is fourteen (14) business days after the date of service of a sealed copy of these orders upon the Trustee.
Forthwith and contemporaneously:
(a)the husband provide a withdrawal of any caveat lodged by him over the wife’s property at Property T in the State of Victoria; and
(b)the wife provide a withdrawal of any caveat lodged by her over the husband’s interest in the property at Property P in the State of Victoria.
Otherwise each party retain:
(a)the monies received by them as and by way of interim settlement, being the sum of $100,000 each;
(b)their interests in real property;
(c)the furniture and chattels in their possession;
(d)their motor vehicles; and
(e)liability for all debts incurred post separation.
The wife’s application in so far as it seeks orders as to child support be otherwise dismissed.
All applications filed by the husband and wife in these proceedings be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Walter & Walter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6449 of 2010
| MS WALTER |
Applicant
And
| MR WALTER |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Before the Court were competing applications for both property and children’s orders. During the course of the proceedings and by order made 9 September 2011, the Independent Children’s Lawyer joined the proceedings. The final hearing took place over seven days and written submissions were subsequently filed by each of the parties. Here follow my reasons for the Orders which I make this day. Statements of fact in these reasons are findings of fact on the balance of probabilities.
The husband was born on (omitted) 1962 and is aged 50 years. The wife was born on (omitted) 1965 and is aged 46 years. Although the husband is now (occupation omitted) one day a week at the (omitted) during (omitted), he has otherwise not been in employment since the parties’ marriage on (omitted) 1997. He hopes to obtain employment in the future with such employment providing him with remuneration considerably in excess of that which he earns now. That is all conjecture and uncertain. By contrast with the husband the wife worked throughout the marriage. She is a qualified (occupation omitted) and worked in that capacity between 1990 and 1993 before, for four years, working in a business owned by her parents. She then pursued a career, first as a (occupation omitted) for (omitted) and then as a (occupation omitted). In 2004, (omitted) merged with another entity called (omitted) to form a new company (omitted). Between January 2008 and April 2010, the wife was based in (omitted) but also managing the (omitted) office of her employer. She resigned from that position in April 2010 and has not returned to the workforce. The parties separated in June 2010 after a cohabitation period of approximately 12 and a half years and a relationship which spanned over 25 years.
The parties had three children during the period of their marriage. The three children are X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2004. X is now aged 12 years, Y is aged 10 years and Z is aged 7, nearly 8 years. Pursuant to an earlier interim order of the Court, X is currently attending (omitted) School and is in year 7. The wife sought such order which was opposed by the husband and it was made on the basis that the wife be solely responsible for payment of all fees and other costs associated with such attendance. Y and Z are continuing to attend at (omitted) Primary School where they are in grades 5 and 2 respectively.
Some three months after separation (during which time there was conflict between the parents as to the living arrangements for the children) and by consent orders made 22 September 2010, the children commenced to reside with each of their parents on a week about basis. This agreement was reached following receipt and consideration by the husband and wife of a report by family consultant Ms D dated 26 August 2010. Ms D supported such an arrangement. At trial neither the husband nor the wife nor Ms D supported such an arrangement continuing, each of them considering it had been a failure. In his final submissions, the Independent Children’s Lawyer also did not support equal time being spent by the children with each of their parents, though proposed orders being almost that and being orders not sought by either the husband or wife, such that in a fortnightly regime during school terms the children spend eight nights with the wife and six nights with the husband. The wife sought orders that in such fortnightly school term cycle the children spend nine nights with her and five nights with the husband, whilst the husband sought the children spend nine nights with him and five nights with the wife and in addition have some after school time with the wife on one extra night each fortnight. In respect of the property orders sought by the parties, they agreed on an equal division of their superannuation benefits and a retention by each of them of the earlier advanced sum of $100,000 to each, but otherwise disagreed on the property adjustment to be made between them. The wife sought repayment by the parties equally of a $249,000 loan and thereafter a 55-45 percent adjustment in her favour of the monies in trust with the husband to also be equally liable for a joint credit card debt. The husband sought orders providing for 100 percent of the monies currently in trust to be paid to him and to have no liability for the joint credit card. Otherwise, they agreed on retention of all other assets in their respective possession.
History
The parties commenced their cohabitation just shortly prior to their marriage. At around this time they were both employed by the wife’s father. Before the marriage, the husband lost his employment and the wife resigned from her employment. The wife became estranged from her parents and they did not attend the wedding. Accordingly the costs of the wedding, which it was anticipated would be borne by the wife’s parents, were borne by the husband’s parents in the form of a loan to the parties of approximately $127,000. This was at a time when neither party was in receipt of income nor had any savings to apply to the costs of the wedding.
The husband’s financial contribution at the commencement of cohabitation was almost negligible. The wife made a significant contribution in the form of real property. She had been gifted (the gift derived from her father) the sum of $300,000 in 1996 and applied such funds to the purchase, in 1997, of an apartment at Property L. I note the wife classified these monies as a loan but I find such monies were not in fact required to be repaid. No request was made until after the commencement of these proceedings, when such monies were referred to as a loan. If a loan, given the passage of time, it is clearly unenforceable. But I find it was a gift and reject the wife’s evidence in that regard. The purchase price of the apartment was $400,000 and the wife obtained a mortgage of $100,000. The wife claimed, very late in the proceedings that the earlier evidence of both parties that the purchase price was $400,000 was incorrect, in that she put it was in fact $520,000. She further claimed – at that same late stage – to have contributed $100,000 of her savings to the purchase. This was not a claim previously made by her. The husband’s response at trial was that he did not know the truth of such claim as he was not privy to the purchase of the property by the wife. There was before the Court no documentary or other evidence supportive of this claim and I cannot make a finding as to such additional contribution by the wife. The wife sold this apartment in about March 1998. The net proceeds were applied as follows:-
a)to purchase a motor vehicle registered in the husband’s name and with a purchase price of approximately $112,000. He retains it to this day;
b)to repay the husband’s parents some part of the wedding costs in the sum of $73,000 with the remaining $54,000 becoming a gift from them to the parties;
c)to holiday in (omitted) at a cost of approximately $7,000;
d)to apply approximately $27,000 toward the purchase by them jointly of a property situate at Property S in the State of Victoria (‘Property S’); and
e)the balance of approximately $180,000 was applied to supplement the parties’ living expenses.
In addition to her contribution of real property the wife also had at commencement of cohabitation a motor vehicle with a value of approximately $40,000 as claimed by her (and $28,000 as claimed by the husband) and some superannuation and savings of a value unable to be determined by the Court given the absence of evidence relating thereto.
In addition to the husband’s parents’ contributions of $54,000 towards the parties’ wedding costs, the husband’s parents made a significant contribution to the parties’ financial wellbeing and directly and indirectly toward the accumulation of their wealth by the provision of further funds, a transfer of an interest in real property and by accommodating them in their home from March 1998 until December 2006, being a period of more than 8 and a half years. During this time the parties’ three children were born and the husband remained in the home caring for them whilst the wife, after a period of maternity leave for each child, returned to the workforce full-time, a matter to which I shall return. The husband’s parents never sought a payment of rent or board from the parties during this very long period of the parties residing in their home. Nor did they seek a contribution toward the payment of any household utilities. The parties lived with no accommodation expenses. This was a significant contribution on behalf of the husband.
The generosity of the husband’s parents and the earlier generosity of the wife’s parents gave the husband and wife an opportunity to acquire assets and save. They purchased Property S in late 1999 and intended to renovate that property so that it could become their family home. At the time of purchase it was in a dilapidated condition and not capable of being occupied by them nor of being tenanted. The property was purchased for $420,000 plus costs and was funded by the earlier referred to $27,000 provided in loan forgiven by the husband’s parents (and being part of the proceeds of sale of the wife’s real property in Property L) together with a further approximately $35,000 gifted to them by the husband’s parents, together with a stamp duty amount of $23,000 approximately and a mortgage loan from Members Equity (now Perpetual Trustees) of $358,000. These borrowings cost the husband and wife between $1,800 (the husband’s evidence) and $2,400 (the wife’s evidence) each month. These funds were derived from the wife’s income. In the ten years the husband and wife owned the property and despite the wife’s payment of the mortgage, the mortgage increased to the sum of $447,500. This was because the parties drew down further borrowings to pay off credit card debt. They in fact never accumulated savings sufficient to enable them to renovate the property nor did they apply capital sums available to them, and being bonuses received by the wife, to this property. The wife’s evidence was that the husband never worked on restoring this property as was intended by them at purchase. This was a source of great conflict between the parties. But when examining their financial position it is difficult to see that they would have applied the funds necessary to carry out any works on this property.
In addition to accommodating the husband and wife and subsequently their children in their home, the husband’s parents also made available holiday house accommodation in both (omitted) and Property P. Again, the husband and wife made no contribution of any kind. In 2003, the husband’s parents transferred a 49 percent interest in the Property P property to the husband as a tenant in common. The husband had, many years prior to the marriage, worked on this property renovating the cottage and building a large mud brick barn. The transfer was to acknowledge this contribution as against the husband’s siblings in the event of the death of the husband’s parents. The transfer did not result in any outgoings relating to the property being paid by the husband or wife. The costs of all taxes, rates, maintenance and repairs have been met solely by the husband’s parents. This asset of the husband is included in the pool of assets of the parties. It represents another significant contribution by the husband’s parents and a contribution by the husband. The husband’s share is now valued in the sum of $193,550.
In early 2007, the husband, wife and children moved into their own accommodation. This was a rented premise in (omitted), close to the children’s school and kindergarten. They remained living there for 12 months (until January 2008) when the family relocated to (omitted), the wife having been offered a position of establishing an office there as well as having responsibility for building up and managing the (omitted) office of her employer. They remained living in (omitted) until late 2009 when the wife determined that she wished to return to Australia to apply for the position of (occupation omitted) of (omitted). The family returned to Melbourne and the husband and wife enrolled the children in (omitted) School to commence January 2010. The family resided in serviced apartments. The wife ultimately did not get the position she sought and determined to resign her employment. She was required to return to (omitted). She remained there for about six weeks and in early April 2010 having resigned she returned to Melbourne, rejoining the family. She then announced to the husband that she would care for the children and that she was not re-entering the workforce.
It is worth reflecting here upon the care arrangements for the children since their birth. In particular because the wife’s affidavit evidence was that she supported the family financially, as well as being the primary caregiver to the children. She alleged that she performed this latter role with significant assistance from the husband’s mother and paid housekeepers and nannies. This was an unfair and untrue claim which minimises and trivialises the husband’s input. The wife conceded in cross-examination, that she did not perform this role whilst the family was renting accommodation in Melbourne and in (omitted), albeit she found that difficult. She referred to the husband as being responsible for school drop off and pick ups.
Whilst residing in the husband’s parents home
Following X’s birth in (omitted) 2000 the wife remained at home for three months caring for the baby. The husband assisted in that. The wife then returned to work, working two days a week from home and three days in the office. Although the wife had wanted the husband to get part-time employment so that she also could work only part-time, the husband could not find employment. This was a source of understandable frustration to the wife but she accepted her need for full-time employment and returned to her employment. Her income was approximately $110,000 per annum gross and she had prospects of promotion. The husband cared for X whilst the wife worked. This included her time working from home from where she was being paid to perform her job. Whilst working from home certainly gave the wife greater flexibility and more time spent with X, it clearly could not have eradicated her work obligations. Nor on the husband’s evidence and that of his mother (which I accept) did it. The husband was occasionally assisted by his mother in caring for X but her assistance did not overshadow his primary care-giver role. He was consistent and reliable in his performance of that role and I reject the wife’s evidence that she cared for the children on the four days that she was at home (including the weekends) and that the husband’s mother or a nanny looked after the children on the three days she was at the office and that when the husband’s mother went on vacation she “would have to take annual leave in order to look after the children.” The husband undertook and completed a (qualifications omitted) between 2000 and 2003 by attending night classes on one and two nights per week. At these times the wife would care for X sometimes assisted by the husband’s mother. The husband was undertaking such studies to improve his prospects of employment. The wife worked hard in her role as income provider and also cared for X or assisted in her care when she was able. When Y was born the wife took some further maternity leave as she was to do again (but being only three weeks) following Z’s birth. She returned to full-time work with five days of each week in the office after Z’s birth. I reject the wife’s evidence that at this time she paid for a nanny three days a week and the husband’s mother cared for the children for the remaining two days of the week with the wife caring for them on the weekend and that all of this was done without any input from the husband. I accept the husband’s evidence, and that of his mother, that the husband continued in his role as primary care giver to the children and performed the majority of household tasks. The parties did engage a nanny for some 18 months to assist the husband. The husband took the children to most of their activities as arranged by him, purchased necessary items for them and attended to their medical needs. He organised social contacts around the children’s lives and arranged family outings and holidays. He was not, as described by the wife, “unemployed” and thus at home. He was actively engaged in the care of the children. I accept that the wife also cared for the children when she was at home as acknowledged by the husband and by his mother.
I accept the husband’s evidence as to the wife’s working life at this time and its impact upon the family, in particular, the time available to the wife to spend with the children as set out in his affidavit sworn 29 March 2011 in paragraphs 53 to 57 inclusive which I include here because they set out factually what occurred in the children’s formative years:
“53. By late 2004/ early 2005, the wife’s work had become increasingly more demanding, and involved her working long hours. She had, by this stage, returned to working full-time from the office. The wife would leave home at 6 or 6.30 am, and not return until after 7.30pm. Often she worked much later, returning at 9.30 pm or after. Despite the long hours, the wife thrived on the increased responsibilities that she was being given, and her advancement within the company.
54. In addition, in 2005, when Z was less than a year old, she commenced travelling for her work, which took her away from home often. In the first year of travelling, being late 2004/ early 2005, this involved attending conferences, as well as going to Sydney, a number of times a year. By mid 2005, this had increased, and the wife would spend up to three or four nights away at a time, more and more frequently. The wife took on a board commitment, on (omitted), which involved travel to (omitted) regularly, as well as to other locations in Australia, such as (omitted). I became concerned about the amount of time that the wife was spending away from our young family, and suggested that she cut back her workload, a suggestion which she ignored.
55. In 2005/ 2006 the wife took on another board position, this time in (omitted). As a result, she was required to travel to (omitted), and other international destinations, several times a year.
56. By 2006, the wife was travelling more frequently and for longer periods, including regular overseas trips. In 2006 alone, I recall four occasions, each of about three to four weeks duration, during which the wife was overseas for work commitments. She also frequently travelled within Australia.
57. I continued to be responsible for caring for the children during the week, and whilst the wife was away. I prepared them for the day, and took them to and from kinder/school and all their other activities. I made all lunches and dinners. I put them to bed at night, reading to them or, more often, telling them a story. I would often make up a story for them, and to this day, the children love it and expect me to do this. The wife was rarely home to see the children before bed.”
The wife deposed in her affidavit material to spending less time away than the above described and put the time of her directorship appointments later in time. In cross-examination, however, she said she could not recall precisely but remembered the directorships followed sometime after the companies merged in 2004. She agreed that she had to travel to the (omitted), and again asserted that it was the husband’s mother who predominately cared for the children in her absence. Later in her evidence, in response to questions asked of her about her time working in (omitted) she said:
“…. I started travelling a lot, I think it was either late 2005 or early 2006 when I first obtained the international directorship.”
By the end of 2006 the husband described the children’s relationship with the wife as “remote” and it concerned him. He desired for her to spend more time with the children and with him. The wife was offended by his description of her relationship with the children which she claimed was warm and mutually loving. She described her frustration at the family not living independently; at the husband not being employed; and at the Property S property not being renovated, all matters which resulted in her conveying to the husband her intention to leave the marriage. The husband and wife then moved out of the husband’s parents’ home to establish themselves in their own family unit and make a genuine effort to make their marriage work.
Before leaving this part of the parties’ care arrangements for their children I refer to the husband’s mother’s affidavits. The husband’s mother gave corroborating evidence in her affidavits sworn 26 July 2010 and 27 September 2011. She was not cross-examined as to her evidence. I accept the unchallenged contents of her affidavits which included her evidence as to the funds she and her husband provided to the parties but mostly their contents were about the children. Those affidavits were necessary to put before the Court, and these reasons are required to canvass in some detail the earlier care arrangements for the children, because the wife repeatedly denied that the husband was the primary carer of the children prior to 2007. She gave him no credit for his care of the children and, in fact, she vehemently denied he cared for the children to any great extent nor, she claimed, did he perform any of the household tasks. She maintained her objection in the proceedings to the description “role reversal” saying in her affidavit material: “I always objected to it because in a role reversal you have the person staying at home, running the household and looking after everything else and I strongly say that that’s not what occurred in our case.”
Independent living
In the period of residing in independent rental accommodation, the husband continued to be the primary carer of the children engaged in home duties (which ultimately at trial the wife conceded) and the wife the sole income earner. In the first few months of residing in this new home, the wife spent increased time with the children but thereafter her work commitments became again very demanding and during the week days the wife worked long days and she saw less of the children. The elder two girls were then at school and Z in crèche for three days a week. The husband attended to their needs and was joined by the wife after her working hours concluded.
Upon the family’s relocation to (omitted) in January 2008, the husband continued in his care of the children whilst the wife worked. The family settled into an apartment - the children into school and their extra curricular activities. The wife resumed working long hours, her position being very senior and requiring considerable application. The wife said as to income at the time:
“41. My base salary at (omitted) while I was working in (omitted) was US $410,000 to $420,000 gross per annum. The rental assistance paid by the company was US$600,000 gross per annum and school fees were US$200,000 gross per annum. Although my total package while I was working in (omitted) was around US$1.2m gross, the cost of living in (omitted) was so high that this income represented little increase in our overall standard of living.
42. Prior to moving to (omitted) my base salary with (omitted) was AU$320,000. I also received bonuses of between $100,000 and $300,000 per annum.” (affidavit sworn 16 July 2010)
The wife’s work involved significant travel being for a total of approximately four months in each of the two years the family resided in (omitted). The wife saw little of the children during the week days and again the husband described her relationship with them as becoming “increasingly remote”. Despite her not inconsiderable absences, the wife again gave the husband little or no credit for his care of the children. She said the children were at school, kindergarten and in her care primarily on the weekends. Her evidence, which I reject, was that “Mr Walter was never actually involved through our marriage in undertaking the normal duties that are part of running a family home.” The evidence is that he was very involved and consistent with the girls. The wife assisted in that care when she was available and was a loving, busy and involved mother. Difficulties continued in the parties’ relationship whilst in (omitted). The wife worked in (omitted) for some weeks in December 2009 and the children and husband travelled to Australia for Christmas and to spend time with family. The wife joined them and the wife reconnected with her family, her father having been diagnosed with cancer. It was 12 years since the husband and wife had any real contact with the wife’s family. A decision subsequently was made by the husband and wife to return to Melbourne to reside and the three children commenced school at (omitted) in January 2010.
At the commencement of the 2010 school year, the husband cared for the children again setting up their various extra curricular and social activities whilst the wife in February 2010 returned to (omitted) to finish up her employment. The wife returned to Melbourne in early April and ceased to be employed. At trial she had sought out no further employment in the intervening 20 months. The parties had shared the care of the children for an extended period. Whilst the husband was initially pleased for the wife to involve herself more in the day to day activities of the children following the cessation of her employment, the fact of the parties’ differing parenting styles caused difficulties within the household. Tensions grew between the husband and wife in relation to almost all aspects of the children’s care. The husband wanted the children to spend time with his extended family, the wife did not. The children had continued to have a strong bond with the husband’s family with whom they lived for many years and whom treated them warmly, with great affection and interest borne of familiarity. The paternal grandparents provided activities for the children which were a source of great interest and excitement to the children, one being the establishment of their own gardens in the grounds of the Property P house. The husband wanted this close contact to continue, the wife wanted something different. They were moving toward separation.
In 2010 and whilst neither the husband nor wife were in employment, the parties attended the auction of a house at Property G. They give differing accounts as to why they purchased this property, and as to whom was the driving force but nothing turns on that. The purchase was made with the assistance of the wife’s family and anticipating financial assistance from the husband’s family. The Property G property was purchased for $2,490,000 with the deposit of $249,000 being paid with monies advanced by the wife’s family. Settlement of the sale was on 30 July 2010. The Property S property was then placed by the parties on the market and sold on 5 June 2010 for $1.437 million (settlement was effected post-separation and on 5 August 2010 with the net proceeds being approximately $1,003,201.80. These monies are held in trust by Nicholas O’Donaghue & Co Solicitors and on 22 September 2010 and, by consent, each of the parties received $100,000 of these funds.) Almost immediately after the sale of the Property S property and in June 2010 the wife announced to the husband they would separate. This came as a shock to the husband, in particular, given their recent purchase of the Property G property. The wife advised the husband her parents would complete the purchase of the Property G property which was then to be registered in their name. Some weeks later the wife advised the husband her father was no longer prepared to contribute any further monies and that her position was that the husband and wife should default on the contract of sale with respect to the Property G property. The husband opposed this but had no independent income or asset base to avoid the default. The husband and wife lost the deposit of $249,000 which was a loan to the wife, advanced by the wife’s family through the company (omitted), this company being the corporate trustee of the (omitted) Family Trust. The wife also at this time considered herself the parent with whom the children should live without any regard for their history of care. She was critical of the husband retaining the family car, describing herself in cross-examination as “left high and dry without a vehicle and with three kids.” This was in circumstances where she had just resigned her employment, the husband had not been employed outside the home for many years and she had the financial resources to rent a car before using and ultimately acquiring her family’s car. Her perception and desire was that the three children would live predominantly with her.
Following separation
On 6 June 2011, the wife signed a contract to purchase further real property being situate at Property T for the purchase price of $3,051,250. The deposit monies of approximately $305,000 were paid by (omitted) being another company of the wife’s family. Shortly thereafter the wife’s father died. The wife’s family refused to provide her with the settlement monies necessary to secure the purchase by the due date. On 26 September 2011, the wife sought to make a family maintenance claim against her father’s estate, she having no benefits under either or both of her parent’s estates. The disputation between the wife and her mother and sisters was settled by the parties by the execution of a Deed of Gift and Deed of Settlement and Release on 27 January 2012. The financial arrangements entered into included the forfeit by the wife of any future inheritance from her mother. The wife received cheques totalling $3,000,000 on 27 January 2012 in satisfaction of the Deed of Gift obligations. She also obtained additional benefits by way of loans being forgiven. Those loans included the sum of $305,125 advanced by the wife’s family on 27 June 2011 and being the deposit monies for the purchase of Property T, being the house in which the wife now resides. They also included the wife’s father’s advance to her, of funds of $29,412 to pay for the cost of the return of furniture to Australia from (omitted). The husband was not aware of the advance at the time. He was not consulted and queried the need for the wife to borrow monies. The bulk of the furniture remains with the wife but the parties are not seeking to value or apportion same as between them to any further degree. The loans forgiven did not however include the earlier deposit forfeited in the sum of $249,000 which was an advance made to the wife solely on 4 May 2010 for the deposit payment on the Property G property purchased jointly with the husband. In fact, the Deed of Gift between the wife, her mother and (omitted) provided for the wife to receive a further $250,000 within seven days of repayment of the (omitted) loan amount (as defined in the Deed of Settlement and Release). I shall order that the loan monies be repaid to (omitted) by the husband and wife and out of the net proceeds of the sale of the Property S property before payment out to the parties. It is a loan acknowledged by the husband and in his affidavit sworn 29 March 2011 at paragraph 138 he said
“Whilst I was not a party to any discussions between the wife and her father as to purpose and nature of the monies advanced, I accept that these monies should be repaid in full to the wife’s parents from the funds held in trust.”
The husband herein acknowledged his shared liability to repay same although at trial he suggested repayment of the loan may not be sought by the wife’s sisters. The effect of this though is that the wife will within seven days receive from her mother $250,000 whilst the husband will look to a distribution between he and the wife of a significantly decreased asset pool.
Upon receiving the sum of $3,000,000 and after payment of the settlement sums to secure ownership of the Property T property which included penalty interest, the wife deposited the sum of $617,227.21 into her (omitted) bank account. Included in those funds were the monies received by the wife in the sum of $500,000 for sale and transfer to (omitted) by the wife of her (omitted) ordinary fully paid shares. This shareholding had been held by her during the marriage, and in fact since 1988, but her evidence was that she was unaware of same until very late in the proceedings and accordingly had not previously disclosed the shares to the husband. The wife also had transferred to her the sole ownership of the Range Rover motor vehicle registration number (omitted) previously registered to (omitted) which is valued in the sum of $70,000.
Evidence of Ms D
Ms D prepared her first report on 26 August 2010. She recommended the husband and wife share the care of the children on a week about basis. The husband was willing to adopt the recommendation of the expert, albeit it represented a significant shift in the care arrangements for the children. The parties at trial agreed that arrangement has not served the best interests of the children. Ms D herself changed her view. She prepared a second report dated 15 March 2011. She recommended the children live with the wife and spend time with the husband. Ultimately, after an order appointing an Independent Children’s Lawyer to the proceedings and during the final hearing of the matter, a third report was prepared by her dated 1 November 2011.
Ms D is a psychologist and social worker who has been in private practice since January 1996 specialising in the preparation of family reports and the provision of counselling. Previous to that she was employed as a Counsellor at the Family Court of Australia for many years. Her reports dated 26 August 2010, 15 March 2011 and 1 November 2011 are in evidence before the Court and she was cross-examined by each of the parties in relation to such evidence.
In her first report:
a)Ms D set out:
i)the wife’s position as being: “while Ms Walter would prefer that the children live with her on a full-time basis, she stated that ‘as a minimum position she would support a week about living arrangement.’ Though clearly she sees this as compromise on her part” She later noted the mother would support a dinner one night a week with the other parent in their time; and
ii)the husband’s position as being “in his response Mr Walter seeks a routine whereby the children continue to live with him and spend alternate weekends, Friday to Sunday, plus each Monday and Wednesday, from after school until 6.00pm with their mother. In interview Mr Walter also expressed a view that, there were ‘so many different variables,’ and that he too might agree to a shared-care, week-about routine, but had not finalised his position.”;
b)Ms D noted the parties considered their parental relationship as “pretty poor” (wife) and “exposed”(husband);
c)Ms D noted the parties could not agree on who, historically, provided primary care for the children albeit it was accepted that the husband was at home while the wife was employed in a demanding job. She also noted that the children’s own views about who had cared for them and who would continue to provide the stability of being the parent available to them were that their husband provided this role, and I note contrary to the assertions of the wife;
d)Ms D noted in interviewing all children that they loved their parents, would like for their parents to stop arguing and talking badly about each other and would like to spend time with them both. She observed X to be a bright, intelligent girl with insightful views that could be given weight in the present context, as it then was. She observed Y to want her family to be happy and struggling to find solutions and Z to seem younger than her six years (as she then was) in her emotional presentation. Her observations of the children with both parents indicated, notwithstanding the marital separation, a happy intact family. The children loved and felt loved by their parents;
e)Ms D concluded that a week about regime be trialled noting it was suggested because amongst other things X anticipated it would work. She was also of the opinion that it was the wife who presented as the parent with the greater capacity to provide for the children’s overall needs, significantly the capacity to provide for their emotional needs. She referred to Z seeking out her mother for comfort. This was however in the context of Z being unwell and having spent the preceding five days in her mother’s care. She was then brought to the interviews by her mother and was seated with her mother. It seemed not a question of a preference being exhibited for one parent or another in the seeking out of comfort. Further, in the evidence before the Court as to who provided for the children’s needs to a greater extent over many years, it was clearly the father, in both a physical and emotional sense, although not a financial one. In her first report Ms D commented that the wife disputed this and did not explore the matter further, in particular, as to which parent was their primary attachment figure. She noted both parents to be responsible with a great deal to offer their children;
f)Ultimately, both parties were persuaded to trial what Ms D proposed. The backdrop to the proposal was not promising. It was one of considerable parental discord and a clear history of the primary care of the children being provided by the husband but with that fact being challenged by the wife. Ms D was reluctant to acknowledge the husband in that role. The wife wanted the full-time care of the children and considered she was compromising in trialling a week about arrangement but felt she had no other options available to her given the primary care that had been provided by the husband. The husband was willing to adopt the advice of Ms D with a view to promoting the girls best interests.
In her second report:
a)Ms D noted the parental relationship had not improved. The wife’s summary view of it was “we’re high conflict”. She noted both the husband and wife were concerned about the impact of their differing parenting styles on the children;
b)Ms D noted that the wife continued to receive personal support from her parents and two sisters. This support however had recommenced after an estrangement of some 12 years where the maternal family were not a part of the children’s or parents’ lives. This contrasted markedly with the support and affection they received from the paternal extended family. Fortunately there was a renewal of contact and support between the end of 2009 and mid 2011, whereupon acrimonious relationships again surfaced. Ms D also noted the wife had re-partnered, although she did not live with her new partner. He has three children from two previous marriages and the wife described that she had integrated her partner and his 10 year old son into her and the girls’ lives quite well. Ms D also noted that the wife continued to attend upon a psychologist for her own personal support;
c)Ms D then documented what the wife alleged was the husband’s emotional manipulation of the children and noted the wife’s claims that the husband relied on the children for his own personal emotional support and that he did not provide important adult-child role modelling for the girls. The wife also expressed concern that the shared week about routine did not work for the girls and that X had said the children themselves “feel they don’t have a home”;
d)Ms D noted the husband was pleased the wife was taking on a greater role in the parenting of the children and again remarked that the husband continued “to maintain he was the parent, prior to the marital separation, who attended to most of the parenting tasks in the home.” It is difficult to understand why Ms D could not be more accepting of this fact. If she had it would have informed, more properly, some of the views expressed by her. For instance, Ms D concluded the husband was less focused than the wife in his parenting role and thus did not identify and attend to the children’s emotional needs. He did not do this in part Ms D says, because he had not sought out professional advice for himself and the children, as the wife had. The evidence is the wife attended upon a psychologist on a number of occasions in the twelve months before the trial as she felt she needed support and assistance and strategies as to how to cope with the children’s behaviours when with her. This was supportive of her view that the husband “does seem to gloss over important aspects of the children’s emotional needs and their need for parental guidance, direction and role modelling. In that sense, there was little depth or substance in Mr Walter’s views about his parenting role, in particular, the actual challenges and demands of parenting three young girls, six, nine and 11 years of age.” This evidence sits starkly in contrast to the factual findings of the Court. The husband never needed to seek out counselling for himself or the children in his care of them, both during the marriage and after separation, because the relationship between he and the children was not usually problematic. It was founded on consistency, familiarity, affection and an enveloping structure which was not overly rigid. At the time of interview he thought the children had no serious problems and he was not seeking to diminish their time with their mother. He was criticised for his positively expressed view of the children by Ms D but his observations of the children when with him were that they were happy, were progressing well and being attended to by him without difficulty. To suggest that he did not know about the actual challenges and demands of parenting three young girls as was said by Ms D was simply wrong. He had been parenting them since shortly after their birth. Contrary to the implied assertions of Ms D that the father did not take his parenting role seriously, in her finding that the mother did, the evidence is overwhelming in the detail provided in the husband’s affidavit sworn 29 March 2011 which I accept. He took his parenting role extremely seriously. He was criticised by the wife for including such detail in his affidavit but he needed to do so to meet both the wife’s lack of concession of this issue, and the assertions of Ms D;
e)X expressed a view to spend more time with her father. Ms D was of the view that X was enmeshed in her parents’ troubled relationship and her expressed wish at that time to live with her father could not be relied upon. This was despite X’s comments indicating that she felt well-loved by both her parents; that she was loyal to both her parents; generally reported positively about each home and about each parent; presented as a likeable girl who had lots of friends; and as previously was keen to discuss her ideas about living routines for herself and her sisters, and in relation to which she offered ‘some very consistent and convincing views.’ X reported to Ms D that she did not like the week about routine. In relation to that and in addition to the practical problems of living in two houses as she perceived it, X said that her father’s house was ‘calmer and nicer. I get to go to interesting places. I enjoy myself better at dad’s.’ She said of her mother’s house that her mother ‘yells, she gets angry,’ explaining that if there is a problem, ‘…mum gets angry; dad works it out’ adding ‘I want mum to work it out and be more calmer.’ X was observed to be visibly upset in expressing this preference and implored Ms D to ‘not tell mum’ what she had said. The wife then subsequent to the interview and some six days later telephoned Ms D saying that X told her her father had said to say to the psychologist that she wished to live with him. This is denied by the husband and sits uncomfortably with what the husband was seeking at the time. Ms D concluded X was under an enormous degree of emotional pressure whereby the expression of her views could not be said to express her wishes. Yet her presentation as described in the report also spoke of a well adjusted child keen to have input into her living arrangements. She was concerned not to let her mother know that she had expressed a view to live with her father. She was visibly distressed. She knew it would upset her mother. The expression of her views was responsive to questions asked of her;
f)Ms D observed Y to also not like the regime then in place. Y desired for the family to be in tact and in the circumstances to see each parent frequently. In her telephone call post the interview, the wife mentioned Y’s anxiety and an angry outburst at school, in relation to which the wife had taken Y to a psychologist. Such action was unilaterally taken by the mother but it was categorised as insightful by Ms D;
g)Ms D observed Z to present as a very well-cared for, well-loved little girl who wished for her family to be together. Likewise she wished to see each parent as often as possible;
h)Ms D concluded that the children should live in the primary care of their mother, X’s views should essentially carry no weight and in Ms D’s opinion there was a sense of quiet chaos in the family with the leader at the helm of the family unit, whom she took to be the wife, no longer in that role. But of course in terms of the children’s care over the years, being years in which they thrived, that could not be said.
In her third report dated 1 November 2011 and in which only the three children were interviewed at the request of the Independent Children’s Lawyer:
a)Ms D noted the three girls continued to be very polite, well-manned and well-cared for children. They formed a close sibling group and I observe nowhere in the proceedings was it suggested by any party that the children be separated;
b)Ms D took a history from X where X spoke negatively about her mother claiming her mother “hurt” her. She alleged her mother slapped her quite often and yelled at her. However, Ms D observed X’s demeanour to be not indicative of having a fearful relationship with her mother and found there to be no clear and substantive information from X that she was physically abused by her mother. Further, she reinterviewed X in the presence of Y and noted X to dilute her earlier complaints and allegations;
c)X continued to express a wish to live with her father. Ms D observed:
“While, given her age, one can ask X any number of questions about a preferred living routine, it was evident most of the child’s responses were geared to achieving a particular outcome; namely, living with her father.”
d)Ms D interviewed Y whom she observed continued to display all the expected age-appropriate likes and dislikes of a nine year old. Y understood that her parents were not friends. Although, she wished for them to be. In answer to a question as to what makes her “most angry” she wrote “Mr N”, her mother’s partner. She told Ms D that Mr N was always at her mother’s house. Y reported positively about her parents but also expressed a clear wish to live with her father more, but still see her mother. She had not spoken to her parents about her views saying to Ms D “I’m kind of scared. I’m guessing mum would be more unhappy.” Y also said “Dad says he wants us to live wherever we want. He thinks it’s mum and dad’s decision, but (says) tell the people what you want, not what the parents want.” Y reported “I don’t feel safe” at her mother’s home although she could not explain why and otherwise said she feels “more comfortable at dad’s house.” Y missed seeing each parent as often as possible but otherwise was a happy girl;
e)Ms D noted Z was still very much the baby of the family whose overriding wish was for her family to live in one house. She thought her sisters wanted “more time at daddy’s house.”;
f)Ms D concluded that X continued to be placed in a position where significant weight seemed to be placed on her views by some family members which inappropriately left her to carry full responsibility for problems that were unquestionably part of her parents role and responsibility. She noted that X loved her father and wished to live with him but seemed emotionally burdened to achieve that outcome. She was troubled by the thought that to achieve the outcome of living with her father she did not necessarily have to say bad things about her mother. X’s earlier expressed wishes had not been acceded to. The incident of 30 August 2011 had intervened and X certainly was engaged in a spiralling of criticism of her mother. I accept Ms D’s finding that no physical abuse of X by her mother had occurred. But I also accept her father’s evidence that he had not encouraged her to make such claims where unfounded;
g)Finally and regardless of the living arrangements of the children, Ms D recommended further family therapy be undertaken. I do not propose to make such orders. The family has previously been ordered to attend such therapy on a confidential basis and pay the costs of same. On 28 April 2011, orders were made for the husband, wife and children to attend confidential family therapy. In earlier orders the husband and wife had agreed to attend post-separation parenting courses and have done so. Mr R was engaged by the husband and wife and they attended upon him on an almost weekly basis for many months in an attempt to reach a common ground on issues relating to the children. They have had the stresses and costs of this litigation which has included the preparation of three family reports. The children have available to them school counsellors and the wife has over time sought out her own counselling. She has also taken Y to that counselling. The family needs time to exist without court ordered appointments and to spend time and monies on re-establishing their separate lives to be lived in accordance with these orders. Finality may produce some improvement in the parental relationship. It would be premature and oppressive in my view to further order the parties and their children to engage in any form of therapy. If they jointly desire it they do not need a court order to undertake it. I will however provide for the mother to seek out counselling with X if in her view that will assist their relationship.
Ms D in her third report remarked that if the children were to live in their father’s primary care it was not “entirely clear the paternal family would support the children’s ongoing relationship with their mother.” The evidence as a whole leads me to conclude otherwise. Ms D’s comment stemmed from an email received by her on 16 August 2011 from Mr Walter, the paternal grandfather. This followed earlier correspondence dated 26 April 2011 received by her from the paternal grandfather. Mr Walter’s communications to Ms D were without the knowledge or consent of the husband in the proceedings. Indeed, the husband was upset with his father that he had sought to interfere in that way. It was clear that Ms D did not approve of the actions of the paternal grandfather and rightly so. The husband described it as something akin to the ramblings of an 80 year old man. Whilst it was most improper it does not reflect adversely on the husband who was appalled by his father’s behaviour. It also was a communication expressed in the heat of litigation which did not seek to minimise or alter the children’s time with their mother. On balance, the evidence is the husband’s family will support the children’s relationship with their mother as they have done in the past, although I accept as between themselves and on occasion with their friends, including Ms H whose evidence was of no assistance to the Court, they have criticised the wife.
The mayhem night
On 30 August 2011 being post the second report of Ms D, and a Tuesday night, an incident occurred in the wife’s home between herself and the child Y. At school the next day Y approached her father and said words to the effect “something bad happened last night.” Her father asked “what happened?” and Y responded that she would tell her father later, later being a time when her friends would not be around. What had occurred was that Y would not go to bed when requested to by her mother. And her mother was determined that Y would do as she was told. Prior to that tussle becoming physical, the wife had been speaking with X and asking her why it was that X was “drifting apart” from her. X had not wished to talk about it, as she had not when her mother previously wished to discuss such things. Y was listening and said:
“The reason that X is the way she is Mum, is because we both hate you and want to live with Dad.”
The wife admitted to being quite hurt and shocked by this and told Y she was really ungrateful and behaving badly. Later Y refused to go to bed, and the wife commenced to drag her into her bedroom. There was a lot of crying and yelling and protestation on the part of Y, but eventually her pyjamas were on and she was in bed. Thereafter and for about half an hour, Y repeatedly got out of bed and her mother kept dragging her back into her room. Her mother was dragging her by the arms with Y resisting by kicking, yelling and crying. At one point, Y told her mother she was hurting her. The episode was very distressing and frightening to X also. The wife’s further evidence was that this sort of thing had happened before, where Y had angry outbursts including earlier in the year in 2011 where on two occasions Y had very violently punched her mother on the arm several times causing bruises. On each occasion it was a Friday when the wife was collecting Y from school by way of changeover. Y had spent the day at school and was sullen getting into the car. The wife’s evidence was that Y would start speaking about adult issues being the conflict between her mother and father, and make comments such as “you’re a liar, Mum” and, according to the wife, say that the husband talked to the children about the dispute between the parents. The husband denied that he did so. This episode did concern the husband but he was slow to react saying the children loved their mother. He wanted to understand what had happened. He had not previously alleged that the children were frightened of their mother or that she had physically abused them. He instructed his solicitor, some days later, to write to the wife’s solicitors claiming the children had told him they did not feel safe with their mother. He also made application for the appointment of an Independent Children’s Lawyer. Ms D thought this not sufficiently proactive. That he did not take action, such as discussing it with other (independent) people to protect the children, was in her view poor parenting. His approach however requested a response from the wife and ultimately contained the situation which promoted the children’s best interests.
Other evidence
The wife’s evidence was further that Y has said quite unkind things about her partner Mr N and has said that she hates him. On the other hand and on the wife’s evidence, Y sought out the company of Mr N and his son A and to her mother’s observations seemed to enjoy her time with them. Allegedly, she had also said that her father thought Mr N was a very nice bloke, but that given he was, he wondered what he was doing with their mother.
The wife’s evidence was also that she and the children have engaged in heated arguments where the children have wished to talk about their father and she has not. Her evidence was:
“… I have felt on those occasions that I have had to reset their reality and given them a version of facts which is other than the version that they are being told by their father and that’s happened on numerous occasions over the last twelve months.”
She went on to say that she has in anger described the husband as a loser. She has also referred to him as a “lazy bastard” and a “fuck wit.” The husband has also criticised the wife in front of the children and said things to them such as their mother has taken all the furniture. He has also been obstructive in various ways in his dealings with her about the children. His refusal to inform her that he was ‘Skyping’ X was one such example. There were also many examples of the parties’ lack of co-operation with each other and absolute refusal to make any arrangement simple. The parties’ email exchange and lack of co-operation with each other at the time of the wife’s father’s funeral was truly appalling. It showed the depths of their dislike of each other.
Ms C was Y’s teacher last year. She was subpoenaed to give evidence. She compiled a document titled “Anecdotal Notes from Ms C’s work Program 2011”. On 28 February 2011, she had an entry ‘Staying with mum Y refused to come into the school grounds at the start of the school day. She stayed in her mother’s car.’ A further entry on 1 March 2011 was to the effect that Y was again staying in her mother’s car and then progressed to the vice-principal’s office where she was crying and tearful before settling and going into the classroom. The wife’s evidence was that both Y and Z were tearful and anxious and had trouble separating from her each time she attempted to drop them at school for almost the first and second terms of 2011 at (omitted) Primary School. By contrast, the entry notes in Ms C’s work program 2011 on the days Y attended school with her father were that Y was smiling, seemed calm and relaxed and hugged her father before proceeding independently to the classroom. In evidence, she described her note taking as her usual procedure for all her class members if she observed notable behaviours. She gave evidence she was more familiar with the children’s father, given she saw him more often around the school grounds, but her evidence was that he never said anything about the children’s relationship with their mother, or about their mother save on one occasion when he said words to the effect “something might have happened” and to keep an eye on Y. This was following the ‘mayhem night’. He did not, according to the evidence of Ms C, seek to ingratiate himself in any way with her or say or imply anything negative about the wife. Likewise, nor did the husband’s mother whom she met on 2 or 3 occasions. This evidence was consistent with that of Mr C, the Principal of (omitted) Primary School. His evidence was that there was no influence extended or sought to be extended by the husband in respect of the school’s policy of note taking, nor in respect of their impressions of Y’s behaviour. He observed occasions when Y was quite anxious with her mother, as described by the wife also, which was in contrast with his observation of Y with her father which he described as “a fairly normal, functional interaction.”
The wife’s close friend, Ms P swore two affidavits in the proceedings, being on 12 August 2010 and 16 September 2011 and she was cross-examined as to their contents. I do not accept her evidence that the husband’s mother looked after the children and was, following Z’s birth, assisted in that task by a nanny. She had no personal knowledge of the care arrangements in the home. Where her evidence contradicted that of the husband’s and his mother’s, both persons in the home, I prefer the evidence of the husband and his mother. Ms P’s criticism of the husband’s care of the children when she visited in 2009 and stayed with him, in the absence of the wife, did not reflect well on her. The wife was away for work and had entrusted – as she did many times – the care of the girls to their father. Ms P was a welcome visitor being a close friend of the wife. She was accorded hospitality by the husband who at the time had the sole care of his daughters. Ms P also gave evidence that she had advanced the sum of $125,000 to the wife to assist in her support. These monies were described as a loan without interest and with no repayment schedule. No security was advanced by the wife. Although the wife indicated her intention to repay such sum as soon as she was able and such sum had increased to approximately $160,000 following further borrowings over the course of the trial, she had not done so at trial despite earlier receiving a settlement sum from her family. I do anticipate however she will repay such sum.
The husband sought that X attend (omitted) College and that Z and Y continue to attend (omitted) Primary School. The wife does not oppose the younger two girls continuing their attendance at (omitted) Primary and I propose to make such an order in the event of disputation between the parties in the future. The husband’s objection to (omitted) School, which is the wife’s choice of school for X and ultimately all three children, is that the parties cannot afford the fees on an ongoing basis. He does not object to the school itself. The wife asserts that she can meet such payments and will into the future by applying her capital and perhaps income. Certainly the wife has a significant earning capacity which she has chosen not to exercise since April 2010. She has indicated she may do so in the future, when family matters settle. Both parties envisaged a private school education for their children in earlier times and had commenced same. They enrolled the three girls in (omitted) Grammar School at the (omitted) Campus in (omitted) for the 2010 school year, following the return of the family from (omitted). The wife then ceased her employment and the parties separated and payment of the fees became an issue between them. The parties subsequently agreed to X continuing to completion of her primary schooling at (omitted) Grammar School, whilst Y and Z transferred to (omitted) Primary School in 2011. The private school fees were shared equally by the parties and came out of capital, being the proceeds of sale of the Property S property. X has now started the 2012 school year at (omitted) School and whilst the husband has no capacity to afford private school fees on the basis of income or assets, the wife has on the basis of both potential income and assets. It would promote the best interests of the girls to have such an education but only if it is consistent and the wife does that, which she claims she will. It should not be used in substitution of appropriate child support payments. I have given considerable thought to this, particularly in light of the wife’s absence from the workforce for two years but accept she would act in the children’s best interests by ensuring their ongoing attendance at (omitted) School. Accordingly, I will make orders to provide for that, but also to restrain any form of discussion as to the husband’s non-payment of such fees so it cannot be used as a source of conflict between the parents or a put down of the husband in front of the children. In the event the wife ceases such payment, then the husband is at liberty to select the secondary school education of the girls for I am satisfied he will go to some lengths to ensure consistency.
I accept the evidence of the husband contrary to the wife’s assertions that he is and has been well organised in respect to arranging for the educational and extra-curricular activities of the children. Until the wife ceased her employment he was responsible for these matters and the children had an interesting and delightful childhood. Their mother was of course also engaged in the provision of such a lifestyle to them but left day to day matters in the care of the husband whilst she worked. Her long hours and time spent away from the family, especially in the (omitted) years, are testimony to her having confidence in the husband to appropriately carry out the various activities and commitments relating to the children’s care. Since the family’s return to Melbourne and the shared care regime, the parties have not always carried out their responsibilities with a view to promoting the children’s best interests. Sometimes they have engaged in an unedifying battle as they each try to ‘win’. But their omissions are not big issues in terms of the children’s physical needs. They are well cared for children. Rather they signify both parents contribution at times to some emotional distress for the children and the parents’ lack of suitability to share the care of the children in a week about arrangement, the only matter perhaps in which the parents are in heated agreement.
The children Y and X expressed to the Independent Children’s Lawyer in late September 2011 that they wanted to live with their father more. X said “she slaps us and hurts us” and that she would prefer not to see her. At around the same time X spoke to her father of her mother saying they would have a whole day to be alone and then physically threatening her, by striking her fist into her other hand with X saying she “knew what that meant.” X told her father she was very worried and that her mother was saying to her that she was lying and ungrateful. This time her father reacted promptly asking her if she had told anyone and suggesting she do so, for instance her teacher. His evidence was that he adopted this course because X was frightened and he had a responsibility toward her. He formed the view that the wife was being violent and abusive to X. He accepted what X told him. He had earlier described the personalities of the children with X being articulate and academic and Y being bright, talkative, an intuitive sort of girl. He accepted X’s extreme and unlikely allegations and in this instance was a receptive audience. The effect of this was to promote a negative attitude by the child toward the mother which was totally unfounded. I accept it was not deliberate on the husband’s part or “likely to have been intentional” as submitted by the Independent Children’s Lawyer. It related to an isolated episode and was not over the two year period of shared care reflective of an ongoing lack of insight by the husband. Generally he has displayed considerable insight into their physical and emotional needs.
Since separation there has been no parental co-operation surrounding the care of the children. The wife has made unilateral arrangements without consultation with the husband. The most recent was in December 2011, when the wife made, unilaterally and contrary to court orders, arrangements to holiday with the children in (omitted) from Christmas Day. She failed to inform the husband that she had made arrangements and ignored the fact such holiday was to be taken in the husband’s court ordered time. This was an action which flew in the face of any promotion of the children’s best interests or intention to co-operatively parent.
Children’s orders
The presumption that it is in the best interests of the children for the husband and wife to have equal shared parental responsibility of them is not rebutted in these proceedings (s.61DA(1) of the Act). The parties and the Independent Children’s Lawyer agree to an order made in these terms.
By reason of the presumption of equal shared parental responsibility, the Court must consider whether the children spending equal time with each of their parents (s.65DAA of the Act) would be in their best interests and reasonably practicable.
The evidence of each of the husband and wife is that the children spending equal time with each of their parents has not been successful, albeit the husband came to that view later than the wife, and they agree that it is not in the best interests of the children that it continue. This view is shared by the Independent Children’s Lawyer and by Ms D. The Court accepts these views based on the evidence and the Court determines that it is not in the children’s best interests for them to spend equal time with each of their parents. The Court then must consider, by virtue of the presumption of equal shared parental responsibility, whether spending substantial and significant time with each of the parents is in the best interests of the children. The evidence of the husband and wife, supported by the Independent Children’s Lawyer, is that such time would be in the children’s best interests. Accordingly, the parties and the Independent Children’s Lawyer have put to the Court proposals for the children to spend substantial and significant time with the other parent with whom they do not live.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act). In determining what is in the best interests of the child, the Court must have regard to the matters set out in s.60CC(2) of the Act being the primary considerations and s.60CC(3) of the Act being the additional considerations.
The first primary consideration is in s.60CC(2)(a) of the Act and is “the benefit to the child of having a meaningful relationship with both of the child’s parents.”
It is clearly of benefit for all three children to have a meaningful relationship with each of their parents. They benefit from and do enjoy such relationship presently. Their parents are both responsible caregivers and love their children dearly. The proposals of both providing for the children to spend five nights a fortnight and half holidays with the other, are aimed at the children continuing to have a meaningful relationship with both parents.
The second primary consideration is s.60CC(2)(b) of the Act and is “the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Neither parent nor the Independent Children’s Lawyer concluded this is necessary and suggest substantial and significant unsupervised time be spent with the other parent. Nor does the Court find any need for protection of the type set out in the above consideration. The children are well-cared for by their parents.
Section 60CC(3) of the Act sets out the additional considerations which are as follows:-
“(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;”
In August 2010 when X was aged ten years, she expressed a view, along with her sister, that she wished to live with each of her parents equally. The children did so, in an arrangement agreed to by the parents. Neither parent now wish for that to continue. Nor do X and Y. In early 2011, X expressed a clear wish to live for greater periods of time in her father’s house. She expressed this view to Ms D and did not wish for her mother to know. I do not find on the evidence that the husband attempted to influence X to express such a view nor X and Y at later times. She was distressed. She knew both parents wanted her to live with them and that a sharing of care, from her parents’ perspective, was simply not possible. She felt a responsibility to solve her parents’ problems. But nor did she enjoy the week about regime. She is a mature child. In October 2011, both X and Y expressed a wish to reside for a greater period of time with their father. They had earlier stated this to the Independent Children’s Lawyer. There was a consistency in the expression of their views and I give some weight to them, more so the views of X.
“(b) the nature of the relationship of the child with:
(i) each of the child’s parents;”
In their father’s company the children have not had the problems that have arisen between the wife and children when with their mother which have required, and it is suggested continue to require, ongoing professional assistance. They have been calm, responsive and happy. Their father was the children’s primary caregiver until shortly prior to separation and they have, on the evidence, a strong attachment to him. The father’s nurturing has been historically and presently consistent and reliable. The children are also well attached to their mother and generally happy in her care. The children love both their parents and are loved by both.
and
“ (ii) other persons (including any grandparent or other relative of the child);”
a) The children have a long standing close and affection bond with their paternal grandparents, uncles and aunt. Their paternal grandparents in particular have had a major input into their lives. They have supported the family as a whole for many years and do understand the importance of the children’s mother in the children’s lives. The children’s paternal grandmother described her involvement in the children’s lives as follows:
“My involvement in the care of the children has always been a supporting role for both Mr Walter and the children. When the children were babies, I would help Mr Walter when necessary. Now that the children are older, if I care for the children, it is for a short period of time.” (Mrs Walter sworn 27 September 2011)
“My main role, as Mr Walter’s mother and the children’s grandmother, is to provide Mr Walter and the children with my love and support, listen to the children, teach them things and share stories with them and play with them. If I do things for them, it is because I enjoy spending time with them and love them very much” (Mrs Walter sworn 27 September 2011)
They are not so connected to the extended maternal family. The wife has recently been engaged in a further dispute with her family. Throughout the children’s early years they had no contact at all with their maternal grandparents.
b) Mr N is the wife’s partner with whom she is in a committed relationship. He has spent considerable time with the children including on various holidays. The elder two children have spoken to Ms D about him. Y spoke to Ms T, psychologist about him. The children have expressed at times their dislike of him but the wife insists they have a good relationship even if, as she concedes, he has been abusive to Y. On one occasion, of which she disapproved strongly, he referred to Y as a “little bitch.” He is not before the Court. There is simply evidence suggesting that at times the relationship between he and the children has been unsettling, whilst at other times they engage readily and happily together. I note importantly that the husband has no issue with Mr N and no objection to the children being in his presence.
“(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;"
Both parents will promote the relationship of the children with the other. Both put proposals to the Court which will have this very effect. I am satisfied when considering the totality of the evidence that both are concerned to promote their children’s welfare and that neither has actively sought to exclude the other from a constant involvement in the lives of their children. I reject the wife’s claim that the husband has intentionally sought to undermine her relationship with the children.
“(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
The husband, wife and Independent Children’s Lawyer urge a change in the children’s living arrangements. The children had their father as their primary caregiver until the introduction of the current unsatisfactory regime. In looking to the future care arrangements, X and Y desire to reside more so with their father in the home environment he creates. It is perceived by them to be a calm, familiar place. Despite the mother’s dedication, love and attempts to address the issues which have arisen between herself and her daughters, the girls do not wish for a continuation of their current living arrangements. The parents have determined they cannot co-exist within the current arrangement and perceive it to not benefit the children. So their children must live with one parent more so, and in their best interests on the evidence which is accepted by the Court, that is the father.
“(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;”
Not relevant.
“(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
Ms D contends that the wife is the parent better able to provide for the children’s emotional needs. I have already canvassed that matter in these reasons and my rejection of that expert opinion. The children have thrived in their father’s care. Things such as attendance at school and going to bed have been commonplace and happy events. This has not been the case when the children have been with their mother. Y has not hit her father causing bruising, but has her mother. X’s concern over the treatment of Y by her mother on the ‘mayhem night’ as referred to by the parties was genuine. She did not sleep through it as suggested by the wife. The husband has demonstrated, by doing it over a long period of time without incident, that he can and does care for the children well and attends to their physical and emotional needs. The children are well-mannered, well-behaved and happy children interested in many things. The husband was open to exploring a movement of the girls care from his primary care to a shared care arrangement on the basis of Ms D’s expert opinion as set out in her first report. He was acting to promote the advancement of the children’s emotional needs, as suggested by Ms D. He was also prepared to continue it in the early part of 2011. But all agree now such an arrangement does not promote the children’s best interests.
“(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;”
Not relevant.
“(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;”
Not relevant.
“(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;”
Each of the husband and wife love and care for their children and are responsible parents. They however cannot agree on even, at times, the most basic arrangement for the children. They have each behaved poorly on occasion toward the other without regard for the impact such behaviour has had on the children. Their ongoing highly dysfunctional relationship has presented difficulties for the children. Both parents have burdened the children with the emotional strains of dealing with their parents’ adult dispute.
“(j) any family violence involving the child or a member of the child’s family;”
Not relevant.
“(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;”
Not relevant.
“(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;”
It is preferable to make orders that will avoid further, damaging and costly, litigation between the parties. To accede to X’s wishes and those of Y is to make such orders.
“(m) any other fact or circumstance that the court thinks is relevant.”
I refer to the totality of these reasons.
Assets and liabilities
| Proceeds of sale of Property S held in trust by Mason Sier Turnbull Lawyers as at 27 January 2012 | $797,866 |
| Joint distribution of funds already made ($100,000 to each party) | $200,000 |
| (omitted) Mercedes (omitted) motor vehicle in husband’s name | E$25,000 (W) E$8,000 (H) Value: $9,000 |
| Horse buggy (omitted) (Husband’s possession) | $3,000 |
| Husband’s interest in Property P, 49% of $395,000 | $193,550 |
| Assets held by wife (and acquired post separation) | |
| Property T | $3,051,250 |
| Volvo Motor Vehicle | $70,000 |
| Cash in Bank (Derived in part from the sale of her shares to (omitted) for $500,000 being a shareholding held during the marriage) | $617, 227.21 |
| The further sum of $250,000 to be paid to her by her mother | $250,000 |
| ADD BACK CLAIM: The wife received and expended $120,000 of funds being funds relating to a period of the marriage | $120,000 |
| Superannuation | |
| Wife’s CBUS Super Fund as at 31 January 2012 | $285,315 |
| Husband’s Australian Super | $7,075 |
| Total | $5, 207, 893.21 |
| Liabilities | |
| Debt to (omitted) | $249,000 |
| (omitted) credit card (joint) | $19,192 |
| (omitted) credit card (wife) | $15,000 |
| Legal fees of husband and wife | Unknown |
| Debts of wife to family and friends | $190,000 |
Notes:
1. In addition to the above, the husband’s evidence is that of the chattels accumulated during the marriage, the husband has $3,000 and the wife $125,000. No valuation evidence was put before the Court. The wife claims to have had valuable furniture prior to the marriage. The wife has kept the greater share of the parties’ furniture but no adjustment is sought by the husband.
2. No valuation evidence was put before the Court as to the husband’s motor vehicle being the (omitted) Mercedes and the parties estimates are considerably apart, this vehicle was purchased by them in 1998. The (omitted) value of this vehicle is approximately $9,000 thus the husband’s valuation is more likely and I accept it.
3. The husband said in his closing submissions that both parties agree that it is uncertain whether there will be any capital gains tax liability, for each of them, arising out of the sale of Property S. They argue that the primary residence exemption may apply. Each party is receiving their own advice as to this. The husband submits that it is appropriate that no allowance be made in these proceedings for capital gains tax, and that each party bear whatever liability may be assessed to them individually, in due course. The wife did not address any potential capital gains tax liability. The husband’s submission is accepted.
It is common ground that post separation the wife received $35,000 as severance pay which was spent by the parties prior to separation and a further amount of $195,000 being a tax refund from the US, for the financial years up to and including 2009. Those monies were part applied to pay school fees for the children at (omitted) in 2010, which the husband admits at being around $75,000 but the balance was otherwise retained by the wife, to the exclusion of the husband, and applied by her to pay expenses, including legal fees. The husband asserts that the monies not used to pay the school fees should accordingly be added back to the pool and asserts it is appropriate that the sum of $120,000 be notionally added back to the pool. The Court accepts this argument having considered also the matters in the following paragraph.
The wife asserted in her trial affidavit that she may have a liability to repay some part of the tax refund of $195,000. In cross-examination, the wife admitted that she has not as yet completed her 2010 tax return, for which she conceded she would receive a taxation refund having only worked for a few months in that year. The husband submitted the Court should conclude, given the delay by the wife in submitting that return, for which the wife produced no credible reason, that the wife may receive a refund, which she does not wish to receive prior to the conclusion of these proceedings. On the balance of probabilities, the Court accepts that is so. As to the possible tax re-payment, the wife admitted she has not followed this up, as she has no reason to seek to crystallise this potential liability. The wife was unable to estimate that liability, if any, and has had ample time to do so. There is no credible evidence before the Court that such a liability will eventuate.
The wife was gifted (omitted) shares in her family company, (omitted) in 1988. Ultimately, the wife has received $500,000 from her recent family settlement, being attributed to the value of these shares. There is no evidence put before the Court to the wife as to the value of these shares in 1988.
The financial contributions and provision of an interest in real property by the husband’s parents equate with the initial contributions of the wife’s father, save that the wife in addition had a family shareholding which she claimed to have no knowledge of and in relation to which there is no valuation save at the time of sale. The wife seeks to keep that $500,000 separate from the pool to be divided between the parties. The additional contribution on behalf of the husband of eight and a half years of fully supported accommodation is a further contribution on his side resulting in a slightly greater contribution from the husband. The parties contributions during the marriage were equal. Despite the wife’s high income throughout and significant bonuses, and the supported accommodation provided them, the parties acquired very little by way of an asset pool. Post-separation the wife has been steadfast in her determination to not exercise her significant earning capacity to the extent that she has borrowed heavily from friends and relied on her family to provide support for her. The husband has not had an immediate earning capacity nor does he have a capacity in the realm of the wife’s capacity, yet he seems content to allow his ageing parents to likewise provide for him. The wife has sought to hold the husband liable for sums he could not afford – such as private school fees – and for the monies owing on the joint bank card. The wife had control of significant income in (omitted) and had the capacity to settle this debt. Further, she has had the capacity with the receipt by her of $120,000 of funds belonging to them both. That she did not make such payment is indicative of her attitude to the husband. She has settled her dispute with her family on the basis that all loans are forgiven save the deposit monies for the Property G property. The wife produced no proper evidence as to the manner of the incurring of the credit card liability and an order whereby she is responsible for same is, in particular given her financial resources, just and equitable.
The husband claimed that the wife’s expenditure throughout the marriage was excessive. Although the parties had no housing expenses for eight and a half years, and had the benefit of a high income earnt by the wife, at the end of their relationship they had accumulated few assets. Various bonuses received by the wife were consumed in living expenses. As one example, in October 2007, the wife received a bonus of $350,000. The parties could not agree on the allocation of this bonus and like so much of what the parties had financially, it too disappeared with the wife describing it being “frittered away” in (omitted). The husband’s evidence was that the wife was a compulsive shopper. The wife admitted that she liked spending money on clothes and shoes and conceded that she shopped extravagantly (and started to work longer and longer hours) as a means of escaping the husband’s control. The wife at times did spend considerable sums being $18,000 in one store on one day in (omitted) and $11,000 in (omitted) at one store whilst on a business trip.
The husband is financially supported by his parents. That has been so since the parties separated. He has been slow to earn a necessary income even acknowledging the initial difficulties he will face. The wife pays no spousal support as she does not exercise her significant earning capacity. She has likewise been supported by her family and has now received family funds in settlement of her legal claims. She has also borrowed heavily from friends and family.
The children’s orders in these proceedings result in an adjustment under s.75(2) of the Act in favour of the husband. So too do the unequal earning capacities of the parties and the fact that the husband is unlikely in the short term to receive any financial assistance from the wife for the support of the children other than the payment of the school fees. The wife’s attitude to the husband does not lead the Court to conclude that she would willingly pay any reasonable amount of weekly child support into the future. The other significant matter to consider pursuant to s.75(2) of the Act is the considerable asset position of the wife at this time relative to the husband. A large s.75(2) of the Act adjustment is warranted.
Looking to the assets the parties make submissions with respect to the division of, there is an amount of $1,323,416 (including the add back amount of $120,000) less the sum of $249,000 equalling $1,074,416. Of this sum the wife should receive a percentage adjustment of 35 percent equalling $376,045.60. She has received already the sum of $220,000. Thus there is to be paid out to her a further sum of $156,045.60.
Are the property orders just and equitable? The provision to the husband of the funds as provided for in these orders acknowledge the significance of the s.75(2) of the Act matters that weigh in his favour and ensure both parties are adequately provided for. The orders as sought by the wife make no recognition of these factors and little by way of a recognition of the contributions on behalf of the husband. The Court is satisfied the orders are just and equitable.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 6 June 2012
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