WATERS & WATERS
[2011] FMCAfam 432
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATERS & WATERS | [2011] FMCAfam 432 |
| FAMILY LAW – Parenting – two children aged 16 and 12, one of whom has Asperger’s disorder – current arrangements provide for the children to live with the wife and spend five nights with the husband over two block periods each fortnight – found to be in the children’s best interests to consolidate their time with the husband into a single five day block period to minimise disruption to them. FAMILY LAW – Property – husband found to have made significant initial contributions such as to attract a 20 per cent loading in his favour – wife found to have greater needs with respect to the future primary care of the children and a lower earning capacity than the husband such as to attract a 20 per cent loading in her favour pursuant to section 75(2) – orders made for the equal division of the parties’ realisable assets and a superannuation splitting order made equalising their respective superannuation entitlements. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 75, 79 |
| M & M [1998] FamCA 42 C & C [1998] FamCA 143 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 L and L [2003] FamCA 40 Re NHC & RCH (2004) FLC 93-204 AJO v GRO (2005) FLC 93-218 D and D [2006] FamCA 199 M and M [2006] FamCA 913 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS WATERS |
| Respondent: | MR WATERS |
| File Number: | MLC 6239 of 2010 |
| Judgment of: | Bender FM |
| Hearing dates: | 4 & 5 May 2011 |
| Date of Last Submission: | 5 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Grant |
| Solicitors for the Applicant: | Beaumont Lawyers |
| Counsel for the Respondent: | Mr Barbayannis |
| Solicitors for the Respondent: | Riccioni Greenwood Lawyers |
PARENTING ORDERS
The parties retain equal shared parental responsibility for the children of the marriage [X] born [in] 1995 (“[X]”) and [Y] born [in] 1998 (“[Y]”).
[X] and [Y] live with the wife.
[X] and [Y] spend time and communicate with the husband as follows:
(a)from the conclusion of school on Wednesday until the commencement of school on Monday in each alternate week during school terms, commencing on the first Wednesday of each school term and each alternate week thereafter;
(b)for one half of all school holiday periods at such times that may be agreed between the parties and failing agreement the second half subject to the husband providing the wife with 21 days written notice of his intention to spend time with [X] and [Y] during the relevant school holiday period;
(c)from 3.00pm Christmas Day until 6.00pm Boxing Day 2011 and each alternate year thereafter;
(d)from 6.00pm Christmas Eve until 3.00pm Christmas Day 2012 and each alternate year thereafter;
(e)in the event that the husband’s birthday, [X]’s birthday or [Y]’s birthday occur when [X] and [Y] are not spending time with the husband, [X] and [Y] will spend time with the husband as follows:
(i) if on a weekday from 5.00pm until 7.00pm; and
(ii) if on a weekend from 10.00am until 2.00pm;
(f)in the event that Father’s Day falls on a weekend when [X] and [Y] are not spending time with the husband, [X] and [Y] shall spend time with the husband from 5.00pm on Father’s Day eve until 5.00pm on Father’s Day; and
(g)at such other times that may be agreed between the parties
Notwithstanding order 3 herein, [X] and [Y] will spend additional time with the wife as follows:
(a)in the event that the wife’s birthday, [X]’s birthday or [Y]’s birthday falls on a day when [X] and [Y] would not ordinarily be living with the wife as follows:
(i) if on a weekday from 5.00pm until 7.00pm; and
(ii) if on a weekend from 10.00am until 2.00pm;
(b)in the event that Mother’s Day falls on a weekend when [X] and [Y] are not living with the wife, from 5.00pm on Mother’s Day eve until 5.00pm on Mother’s Day;
(c)from 6.00pm Christmas Eve until 3.00pm Christmas Day 2011 and each alternate year thereafter; and
(d)from 3.00pm Christmas Day until 6.00pm Boxing Day 2012 and each alternate year thereafter.
The parties will facilitate [X] and [Y] telephoning the other party at any reasonable time they express a wish to do so.
For the purpose of changeover pursuant to these orders, where changeover does not take place at [X] and [Y]’s school, changeover will take place at the wife’s home at the commencement of time and at the husband’s home at the conclusion of time.
Each party is at liberty to attend all school and extra curricular events involving [X] and [Y] that parents would ordinarily be able to attend and to obtain copies of school reports, notices and other like documents ordinarily available to parents, at their own expense.
The parties keep each other advised of any issues relating to [X] and [Y]’s health, including but not limited to providing details of any medication [X] or [Y] have taken or that has been prescribed to them, details of any appointments and details of any of [X] and [Y]’s treating professionals. Each party is otherwise at liberty to liaise directly with any of [X] and [Y]’s treating professionals.
PROPERTY ORDERS
The wife pay to the husband the sum of $73,607.15 (“the payment”) on or before 22 September 2011 (“the date”).
Contemporaneously with the payment:
(a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property situate at and known as Property M, being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“the real property”); and
(b)the wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event the whole of the payment has not been made by the date then the husband pay to the wife the sum of $411,392.85 (“the second payment”) on or before 22 November 2011 (“the second date”).
Contemporaneously with the second payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property; and
(b)the husband indemnify the wife against all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the second payment has not been made by the second date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)secondly so much of the second payment as is then outstanding together with interest thereon at the rate of 10.75 per centum per annum adjusted monthly from the date to the wife; and
(c)thirdly the balance to the husband.
Pending the payment or second payment or completion of the sale:
(a)the wife have the sole right to occupy the real property and during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
The husband shall retain the whole of the net proceeds of sale of the property situate at Property R, being the land more particularly described in Certificate of Title Volume [omitted] (“the Property R property”).
The husband shall indemnify the wife against and be responsible for the payment of any Capital Gains Tax arising from the sale of the Property R property up to an amount no greater than $53,151.21.
In the event the Capital Gains Tax payable on the Property R property is determined to be:
(a)greater than $53,151.21, the parties shall equally pay the difference in the Capital Gains Tax and $53,151.21 as and when the Capital Gains Tax falls payable; or
(b)less than $53,151.21, the husband shall within 14 days pay to the wife 50 per cent of the difference between the Capital Gains Tax payable and $53,151.21.
Within seven days of receipt of the determination of the Capital Gains Tax payable on the sale of the Property R property, the husband shall provide the wife with a copy of that determination.
The court allocate as required by section 90MT(4) of the Family Law Act 1975 a base amount of $73,759.00 to the wife out of the husband’s interest in the [A] Superannuation Fund.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the superannuation interest held by the husband in the [A] Superannuation Fund the Trustee shall pay to the wife or her legal personal representative her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement the husband would have had but for these orders.
Order 20 herein shall have effect from the operative time.
The operative time referred to in order 21 herein is four days from the date of service upon the Trustee of a sealed copy of these orders.
The Trustee of the [A] Superannuation Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all documents as may be necessary to calculate the entitlement of, and make payment to, the wife in accordance with these orders.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife);
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Waters & Waters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6239 of 2010
| MS WATERS |
Applicant
And
| MR WATERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the arrangements for the parties’ children [X] born [in] 1995 (“[X]”) and [Y] born [in] 1998 (“[Y]”) and the division of matrimonial property.
In the wife’s Application she seeks orders that [X] and [Y] live with her and spend each alternate weekend with the husband from 6.00 pm Friday to 5.00 pm Sunday. Under cross-examination, the wife indicated she would “consider” arrangements whereby [X] and [Y] spent from 6.00 pm Thursday to before school Monday each alternate week with the husband. In his closing, the wife’s Counsel indicated the wife was seeking orders that [X] and [Y] spend alternate weekends with the husband from 6.00 pm Friday to before school Monday. In these circumstances, I have concluded the wife seeks orders in the terms proposed by her Counsel in closing submissions.
The wife also seeks orders in relation to school holidays and special occasions. The court was advised at the commencement of the hearing that the parties had reached agreement between themselves in relation to the holiday and special occasion arrangements for [X] and [Y].
In relation to property matters, the wife seeks orders that she retain the former matrimonial home, her small amount of superannuation and her motor vehicle, and that the husband retain the Property R land, the parties’ joint savings, his motor vehicle, motorbike, a boat, [omitted] shares and his superannuation.
The husband has superannuation entitlements of $155,000.00 and the wife only $7,500.00. The wife argues that in this matter there should not be a superannuation splitting order made as a division as proposed by her would enable her to retain the former matrimonial home for herself and the children, and allow the husband sufficient assets to rehouse himself.
The wife argues her proposal is very close to an equal division of the parties’ assets and where there would otherwise be an adjustment in her favour arising from section 75(2) factors, such an outcome “compensates” the husband for retaining the whole of his superannuation entitlement and receiving a lesser share of the parties’ realisable assets.
The husband seeks orders that [X] and [Y] live with him each alternate week from after school Wednesday to before school Monday, as well as school holidays and special occasions, noting that the latter has been agreed between the parties.
As to property, the husband seeks orders that there be a division of property such that he retain 60 per cent of the parties’ realisable assets and the wife retain 40 per cent of those assets. The husband also seeks that there be a superannuation splitting order such that he retain
60 per cent of the parties’ superannuation entitlements and the wife retain 40 per cent of those entitlements.
Specifically, the husband seeks orders that he pay the wife $221,184.00 and she transfer her interest in the former matrimonial home to him. He further proposes the Property R property be sold and the net sale proceeds, after payment of Capital Gains Tax, be divided such that he receives 60 per cent and the wife receives 40 per cent of same. He seeks a superannuation splitting order in the wife’s favour, with a base amount of $57,000.00. Of the parties’ remaining assets, the husband proposes the wife retain her motor vehicle and savings and he retain his motor vehicle, motorbike, boat, savings and the [omitted] shares.
Background
The wife was born [in] 1970 and is 40 years of age. She is employed as a [omitted]. In 2011, [employer omitted] obtained funding to employ the wife for 35 hours per week. The wife gave evidence that there is no guarantee such funding will be available in 2012. She currently earns approximately $30,000.00 per annum. She has not re-partnered.
The husband was born [in] 1964 and is 46 years of age. He recently obtained full-time employment as a [omitted]. He will earn approximately $60,000.00 per annum. He has not re-partnered.
The parties commenced cohabitation in mid 1994 and married [in] 1994.
When the parties commenced cohabitation, the husband owned a block of land at Property R (“the Property R block”) and a property at Property S (“Property S”). He had superannuation entitlements of $33,614.00.
The Property R block was gifted to the husband by his mother in 1990. Other than keeping it cleared and paying the necessary council rates, the Property R block remains undeveloped. It has a current value of $320,000.00 and, by agreement at the conclusion of the final hearing, has been placed on the market for sale. The husband provided the court with evidence from his accountant that upon sale, the Property R property will attract Capital Gains Tax of approximately $50,000.00.
The husband purchased the Property S property in April 1994 for $93,500.00, utilising savings and a redundancy payment he received in February 1994 from [omitted] Corporation after 13 years of employment. This property was unencumbered. The parties lived in Property S for five years.
In 1999, the parties sold Property S for $125,000.00 and applied the proceeds towards the purchase of the former matrimonial home at Property M. To complete the purchase, the parties borrowed $100,000.00 from the ANZ. This was paid out by the parties during the marriage.
With the birth of the parties’ sons [X] and [Y], the parties assumed somewhat “traditional” roles, with the husband being the major breadwinner and the wife performing the homemaker and parenting roles. The wife returned to part-time employment when [Y] commenced school.
In or about 2006, at the husband’s insistence, the parties established separate bank accounts into which they paid their respective wages and from which they met the family expenses.
At the time the parties commenced cohabitation, the husband was employed as a [omitted] at [omitted], later [C]. In December 2008, the husband took a voluntary redundancy payment of approximately $80,000.00 which he placed into his personal account.
After taking his redundancy, the husband did not work for four months. He then took a position as a [omitted] with his brother-in-law for six months from which he resigned. Thereafter the husband worked on a casual basis as a [omitted] until he obtained a full-time position shortly before the final hearing of this matter.
The parties separated under the one roof in November 2009.
The wife commenced these proceedings on 9 July 2010. At separation, the wife deposed to having $1,000.00 of savings. In the husband’s Financial Statement sworn 13 August 2010 and filed 16 August 2010, the husband deposed to having $73,000.00 of savings.
Orders were made on 5 October 2010 which provided that the husband vacate the former matrimonial home by 13 November 2010 and thereafter the wife have sole use and occupation of the home. The orders also provided that the husband be at liberty to withdraw $10,000.00 from his savings in relation to expenditure on his relocation, with such sum to be taken into account and characterised by the court at trial.
The 5 October 2010 orders otherwise provided that, save for $1,500.00 which was to be utilised for [Y]’s school fees, the parties were restrained from dealing with their assets:
“save for the cost of reasonable living expenses.”
At final hearing, the husband’s savings had reduced to $44,000.00 and the wife’s savings remained at $1,000.00.
[X], aged 16, is in Year 11 at [M] School.
[Y], aged 12, is in Year 7, also at [M] School. [Y] has been diagnosed with Asperger’s disorder and with a mild intellectual disability. At school he has a Teacher’s Aide and receives other special assistance.
Prior to the husband vacating the former matrimonial home in November 2010, the parties obtained a Family Report from Ms F dated 12 September 2010.
Interim orders were made on 5 October 2010 which provided that once the husband vacated the former matrimonial home, [X] and [Y] would live with the husband for five nights each fortnight such that in week one they are with him from after school Wednesday to before school Friday and in week two from after school Friday to before school Monday, and otherwise that they live with the wife. The orders also provided for school holidays to be shared (subject to the husband having leave) and for special occasions.
The 5 October 2010 living arrangements for [X] and [Y] have continued since November 2010.
CHILDREN’S MATTERS
The wife’s proposal
As set out earlier in this judgment, it is the wife’s proposal that [X] and [Y] live with her and spend each alternate weekend with the husband from 5.00pm Friday to before school Monday.
It was the wife’s evidence that she has been [X] and [Y]’s primary carer since birth, and that it is she who has worked most closely with [Y] to assist him with his special needs.
It was the wife’s evidence that since the interim orders were made in October 2010, both [X] and [Y] have complained that they find the current arrangements disruptive and that she believes, in accordance with Ms F’s recommendations in her Family Report, it would be preferable for the children to spend a block of time with their father each fortnight.
It was the wife’s evidence that a block period of five days with the husband would be too long for [X] and [Y] to be out of her care. As noted earlier, whilst her Application was that the boys spend alternate weekends with their father from 6.00 pm Friday to 5.00 pm Sunday, in re-examination she was not opposed to orders being made whereby the boys spend a block period of four nights with their father each fortnight from after school Thursday to before school Monday.
It was the wife’s evidence that she did not think it would be in the boys’ best interests to spend two school nights in a row with their father during any block period of time with him.
The wife agreed in evidence that [X] and [Y] love their father and enjoy spending time with him, but the current arrangements of “coming and going”, particularly during mid-week, was too disruptive and something about which the boys had regularly complained to her.
The husband’s proposal
It was the husband’s evidence that he has a close and loving relationship with [X] and [Y] and that he did not want to spend any less time with them than he currently does.
It was the husband’s evidence that [X] and [Y] had not complained to him about the current arrangements or indicated that they found them to be disruptive.
It was the husband’s evidence that he would be happy for the current arrangements to continue, but if a block arrangement would be better for [X] and [Y], it was his proposal that they spend five nights with him in each fortnight from after school Wednesday to before school Monday.
The husband confirmed that, in winter, [X] has football training on Wednesday and Friday evenings between 5.30 pm and 7.00 pm in [suburb omitted]. The husband was challenged as to his capacity to get [X] to his football training with his new job.
The husband explained that his new employment involves [working] across Melbourne. He is supplied with a work truck by his employer and he travels to his first job in the morning and returns home after the completion of his last job. It was the husband’s evidence that his employer attempts, where possible, to ensure that each employee’s first and last job is situated as close as possible to their home address.
It was the husband’s evidence that he could not guarantee that he would always be able to collect [X] in time to get him to football practice, but if there was the occasional difficulty in this regard, he would be able to put in place arrangements for the parents of one of his teammates to take [X] to training where he would be able to collect him at its’ end.
The husband was questioned in relation to comments that [X] made during the Family Report process where he was concerned about being away from his mother for more than three or four nights at a time. It was the husband’s evidence that he had recently had both [X] and [Y] for seven days in the school holidays and that both boys had thoroughly enjoyed themselves and there had been no issue for them in being away from their mother for that period of time.
The husband confirmed that his new position offered four weeks holiday per annum. When questioned about his ability to share the school holidays equally with the wife, it was his evidence that his new position offered regular rostered days off and that he had been advised he is able to “bank” his rostered days off and take them in a block during the school holiday period. In those circumstances the husband was confident that he would be able to have the requisite leave to enable him to share the school holidays.
Ms F
Ms F is a psychologist and family therapist who prepared a Family Report in this matter dated 12 September 2010. Her Report was placed before the court by way of an affidavit sworn on 5 November 2010. Ms F also gave viva voce evidence at the final hearing of this matter.
Ms F spoke positively of both the parties in the context of their relationships with [X] and [Y] and in the context of their parental capacity.
In her Report, Ms F, in relation to her observations of both the wife and the husband with [X] and [Y], commented at paragraphs 64 and 73 respectively as follows:
64.I observed Ms Waters with [X] and [Y] prior to the observation with Mr Waters, and following the individual interview with both children. At the end of his interview, [Y] selected the games for the observation, and when Ms Waters and [X] saw the Monopoly game set out, they laughed warmly, with Ms Waters saying ‘it’s his favourite game!’ while [X] giggled playfully. [Y] smiled warmly too.
73.In the observation, Mr Waters demonstrated warm and appropriate parenting of [X] and [Y]. He was particularly responsive to [Y]’s need for instruction and guidance, and expressed affection with physical as well as verbal responses. Mr Waters engaged [X] and [Y] in conversation and followed their lead in topics of interest to them. He expressed affection with physical proximity and warm verbal interaction. [X] and [Y] responded with warmth and easy familiarity to Mr Waters and they demonstrate a secure attachment relationship to him.
In paragraph 46 of her Report, Ms F noted that [X] presented as healthy and well-cared for and he was able to describe both his parents positively. [X] told Ms F that he is able to
“count on mum a bit more”
and spoke of his mother as clearly being his primary carer, tending to the household duties, getting him to training and the like.
Ms F described [Y] as a healthy, well-cared for boy who was also able to equally speak positively about both his parents. [Y] described his mother as someone who:
“helps me with my homework”
and someone who:
“helps me make my bed when I am in a hurry.”
[Y] spoke of his father as someone who:
“takes me everywhere and who helps me if I need help.”
Ms F indicated that both parents exhibited a clear understanding of [Y]’s special needs and the management required for them. In paragraph 81 of her Report, Ms F notes as follows:
“To their credit, Mr and Ms Waters have clearly been effective in assisting [Y] to develop in as normal an environment as possible, evidenced by the positive school reports of [Y]’s progress in mainstream education.”
At the conclusion of her Report, under the heading “Recommendations”, Ms F set out the following:
In accordance with the request to address appropriate interim and ongoing living arrangements for the children, I offer the following recommendations.
92.[X] and [Y] live with their mother Ms Waters.
93.[X] and [Y] live with their father Mr Waters in an arrangement that spans five nights each fortnight with a weekend included, such as alternate Wednesday to Monday, during school time.
94.[X] and [Y] live with each parent for one week of each school holiday and half of the long summer holidays.
95.Mr and Ms Waters attend joint parenting counselling to strengthen their communication relationship and to decide on details of the parenting plan. The children are included in the counselling when deemed appropriate by the counsellor, who should be a trained family therapist.
96.Mr and Ms Waters attend post-separation parenting education.
97.Mr Waters moves to live separately in his own residence that is nearby to the family home and close to the children’s schools.
When cross-examined during her viva voce evidence, Ms F confirmed that she was of the view that a single block arrangement of five nights would be appropriate for [X] and [Y]. It was Ms F’s view that given the positive relationship that [X] and [Y] have with both parents, given the positive manner in which both parents have parented their children both pre and post separation, and [X] and [Y]’s maturity, such an arrangement would be both manageable and in their best interests.
It was Ms F’s evidence that both parents might benefit from some counselling to assist them in supporting [X] and [Y] in a 5:9 living arrangement as is proposed by her.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this matter, the parents are proposing that they have equal shared parental responsibility for [X] and [Y]. Whilst both parents report some difficulty in their communication at this time, they have managed, since physical separation, to introduce some degree of flexibility in relation to the arrangements for [X] and [Y] when necessary. Further, their history of jointly managing [Y]’s difficulties speaks very positively of their capacity to co-parent their sons. In these circumstances I am more than satisfied that an order for equal shared parental responsibility is appropriate.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Neither party is proposing an equal time arrangement for [X] and [Y].
The husband’s proposal would mean that [X] and [Y] spend significant and substantial time with him, as defined by the legislation.
The wife’s primary position that [X] and [Y] spend alternate weekends only with their father is not significant and substantial time as defined in the legislation.
As set out earlier, when determining what the living arrangements should be for children, whether it be significant and substantial time or some other arrangement, the best interests of the children are paramount.
When determining what is in the children’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in those subsections, where relevant, must be considered and assessed in the context of each of the parties’ proposals and a decision made as to which party’s proposal, or such other arrangement as the court may determine, is in the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the children’s best interests. They are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both [X] and [Y] have a close, loving and meaningful relationship with their mother and their father.
To their credit, both parties recognise the importance of [X] and [Y] maintaining that relationship with the other parent.
The wife’s proposal to change the existing living arrangements for [X] and [Y] is based on her belief that the boys are finding those current arrangements disruptive and not because she wishes to undermine [X] and [Y]’s relationship with their father.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no issue at all in relation to the care, both physical and psychological, provided to [X] and [Y] by their parents.
At the conclusion of Ms F’s oral evidence, I put to her that the court was dealing with two delightful young men who are a credit to two parents who, whatever might be the difficulties in their relationship, have real positives to offer their sons and have been so doing. Ms F responded very strongly in the affirmative.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account by the court when determining what is in the children’s best interests. Each of these will be considered in turn where relevant.
Section 60cc 3(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
At the time [X] and [Y] saw Ms F, their parents were still separated under the one roof. Ms F did not speak to [X] and [Y] subsequent to their parents’ physical separation and the introduction of the interim living arrangements. Within the constraints of that circumstance, the views expressed by [X] and [Y] with Ms F will be discussed.
When [X] discussed with Ms F his preferred living arrangement, he indicated that he wanted to spend time with his father every second weekend from Friday to Sunday, and every Wednesday to Thursday. [X] indicated to Ms F:
“I couldn’t spend more than three nights away from Mum.”
Ms F discussed the possibility of equal shared care with [X] and he indicated that he wouldn’t want to spend that much time away from his mother and, when considering the possibility of four nights in a fortnight, he indicated:
“not in a row.”
When living arrangements were discussed by Ms F with [Y], his response to the possibility of living equally with both parents was that he had discussed this with his mother and that he probably wouldn’t like it. He indicated that his mother had told him weekends and every Wednesday and that his dad would probably see more of him that way. [Y] indicated that he would tell the judge:
“I think weekends and Wednesdays are probably best with Dad. Sometimes if he might want me on a Thursday he can have me, and Mum wants me on the weekend, she can have me.”
In her Family Report, Ms F observed both [X] and [Y] to be very loyal to their mother and that when speaking to them she had a slight concern that both [X] and [Y] had discussed matters with their mother prior to coming to see her and that their proposals were very closely aligned to those of the wife.
In these circumstances, Ms F was of the view that this close alignment with and loyalty to the wife, coupled with their uncertainty in relation to having never been solely cared for by their father up to that time, was such that there were some questions over the strength of the views being expressed by both [X] and [Y].
Ms F was asked why she had recommended that [X] and [Y] spend a longer period of time with the husband despite the views expressed by [X] and [Y]. She indicated that when taking into account [X]’s age and his maturity and that he was managing his parents’ separation, particularly when seen by Ms F given the level of tension in the home, that he could quickly adjust to and manage a longer period with his father. Ms F noted [Y] was closely bonded to his brother and, if he was with [X], she was of the view he would also manage the longer period of time with his father.
Ms F noted the very strong sibling bond between [X] and [Y] and was of the view that the brothers should spend time together in each parents’ household.
Ms F also confirmed that she believed a block period of time would be in the boys’ best interests, as it minimised changeovers and the potential for any conflict between the parties.
Ms F also expressed the view that she perceived both of the parties to be very reasonable people and that they had capacity to manage a change in the boys’ living circumstances better than many parents that she saw in Family Law proceedings.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted, [X] and [Y] have a close and loving relationship with both their parents.
It was the parties’ evidence that [X] and [Y] also have close and loving relationships with their extended maternal and paternal family, including grandparents, aunts, uncles and cousins.
There is no doubt that when with each of their parents, [X] and [Y] have been given, and will be given into the future, the opportunity to enjoy their relationships with their extended family.
Section 60cc 3(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
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
As indicated earlier, both parents are supportive of [X] and [Y]’s relationship with the other and, despite the breakdown of their relationship, they have managed to continue to communicate in relation to their sons.
In the recommendations in her Report of 12 September 2010, Ms F has recommended the parties attend joint parenting counselling to strengthen their communication relationship. There was no evidence at the final hearing of the matter that the parties had undertaken such counselling and it may be that it would assist them to co-parent their sons into the future.
Given that the parties have demonstrated a capacity to communicate effectively in relation to parenting issues, I do not intend to make orders that they must undertake such counselling at this time. It is, however, suggested that if difficulties arise in the future with respect to their communication in relation to [X] and [Y], the parents should undertake such counselling.
Section 60cc 3(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
Both parties are seeking to retain the former matrimonial home.
Since physical separation, the husband has been renting in the [M] area which has enabled the current living arrangements to proceed without any practical difficulty.
It was the husband’s evidence that, if he was unable to retain the former matrimonial home, he would look to buy in the [M] area to enable there to be living arrangements which would enable the boys to move easily between both parents’ homes, and to continue to attend their school and their extra-curricular activities in the local area.
In these circumstances I am satisfied that the parents will put in place arrangements that will ensure that [X] and [Y] are able to move easily between their two homes.
Section 60cc 3(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
As noted above, both parents live in close geographic proximity to each other and are intending to continue to do so.
Some concerns were raised on the wife’s behalf as to the husband’s capacity to care for [X] and [Y] given his new work commitments. The husband was cross-examined at some length in this regard and I am satisfied that his evidence was such that he will be able to put in place arrangements around his work commitments that will enable him to care for the boys during his working week.
Section 60cc 3(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
As set out earlier in this judgment, [Y] has been diagnosed with Asperger’s disorder and with a mild intellectual disability.
To their credit, both parents have ensured that [Y] has the appropriate supports and interventions, such that he has been able to remain in mainstream education and, whilst not necessarily achieving quite at age appropriate level, he receives very positive feedback from his school as to the progress he is making.
Ms F noted both the parties to exhibit a full understanding of [Y]’s needs and observed them to be properly managing [Y] and his behaviours in a similar and cohesive way.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(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.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It was the wife’s submission that in failing to actively seek full-time employment after accepting a redundancy from [C], and more particularly after the breakdown of the parental relationship, the husband failed to fully accept his responsibilities as a parent in that his limited income resulted in him paying only minimal child support for a number of months.
It was the husband’s evidence that he had attempted to find further work as a [omitted], but had been unable to do so. It was his evidence that he initially worked for his brother-in-law, but that it was work not suited to him, that he and his brother-in-law did not get on particularly well and by mutual agreement they parted ways.
It was the husband’s evidence that thereafter he had obtained casual employment and that by working three 12 hour shifts each week, he generated a similar income to that which he earned when with [C].
It was his evidence that his casual employer suffered an economic downturn in mid 2010 and was thereafter unable to offer him the same level of work. Following this time, the husband told the court that he joined various employment agencies and through their efforts was able to obtain his current employment.
Save for the child support issue, neither parent challenged the parenting of the other.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(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.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As [X] is 16 years of age, there was some discussion as to whether it was appropriate for orders to be made as to [X]’s living arrangements.
It was the husband’s evidence that even within the constraints of the current orders, there had been occasions where [X]’s burgeoning independent social life was such that he had spent weekends with friends rather than necessarily with his father. The husband indicated he would continue to accommodate [X]’s increasing independence.
It was argued on behalf of the husband that given the close sibling relationship between [X] and [Y], an order for both [X] and [Y] would be appropriate, and would ensure a level of stability and security for both [X] and [Y] into the future. This was supported by Ms F in her viva voce evidence.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It was very pleasing to note that the parties were able to reach agreement in relation to holiday arrangements and arrangements for special occasions such as birthdays, Christmas, Father’s Day, Mother’s Day and the like.
The parties were also in agreement that in relation to the school holidays, whilst there is an agreement in principle that they would be shared equally between the parties, given the husband’s work commitments he is to give the wife 21 days written notice of his intention to spend time with the children during any school holiday period to ensure that he is available to care for them.
Conclusion
Since the parties separated physically in November 2010, their sons [X] and [Y] have been spending five nights each fortnight with their father and otherwise living with their mother.
When those arrangements were initially put in place, the five days were broken up over the fortnight, such that [X] and [Y] spent alternate weekends with their father from after school Friday to before school Monday and from after school Wednesday to before school Friday.
The wife has reported that both boys have complained that the current arrangement is disruptive and that the “coming and going” at different times in each week is not to their liking.
The husband indicates that [X] and [Y] have not complained to him that they find the arrangement disruptive.
The Family Report Writer, Ms F, is of the view that a single block of time with their father would best meet the boys’ interests and it was her recommendation that they should spend five nights per fortnight with their father from after school Wednesday to before school the following Monday each alternate week.
The husband seeks orders in those terms.
The wife’s proposals were a little less clear in that her Application sought orders that the boys spend alternate weekends with the husband from after school Friday to Sunday night, her Counsel in closing indicated her proposal was that the boys spend time with the husband from after school Friday to before school Monday in alternate weeks and in her evidence given in cross-examination, the wife indicated that she would be agreeable to a proposal whereby [X] and [Y] spend time with their father in each alternate week from after school Thursday to before school Monday.
It was the wife’s argument that when speaking to Ms F, [X] and [Y] expressed concern about spending any more than three to four nights away from their mother at any given time and that her proposal was therefore in accordance with the views of her sons.
Ms F, whilst confirming that the boys had indicated to her that they did not wish to spend more than three or four nights away from their mother, was of the view that this was more reflective of a level of loyalty and alignment with their mother, coupled with an understanding of her anxiety about the boys being away from her for any longer than that period of time than necessarily reflective of what they could manage and what would be appropriate given their ages and level of maturity.
What is apparent is that [X] and [Y] have a very close and loving relationship with both their parents. To the credit of both their parents, they have supported the boys’ relationship with the other parent both prior to and following separation. Neither raises any concerns about the parental capacity of the other.
Having considered all relevant factors in relation to this matter, I have formed the view that given [X] and [Y]’s ages, the strength of their relationship with both their parents and the capacity of both their parents to care for them that it would be in their best interests for orders to be made for [X] and [Y] to live with their father from after school Wednesday to before school Monday in each alternate week and otherwise with their mother.
Orders will otherwise be made that reflect the agreement reached between the parties for holiday and special occasion living arrangements.
PROPERTY MATTERS
The parties’ financial history has been set out in the background to this judgment and will not be repeated here.
The Issues
I have identified the issues in relation to the division of property between the parties as follows:
a)What comprises the matrimonial property pool, and in particular:
i)How should the $10,000.00 distributed to the husband towards his relocation costs be treated and in particular should it be “added back” into the pool?
ii)Should the reduction by the husband of the parties’ savings post separation of $17,500.00 be “added back” into the property pool?
b)What should be the adjustment as between the parties in the husband’s favour for the husband’s greater initial financial contributions?
c)What should be the adjustment as between the parties in the wife’s favour arising from section 75(2) factors?
d)When looking at the overall adjustment of property between the parties, should there be a superannuation splitting order as between the parties against the husband’s superior superannuation entitlements or should an order be made that there be no superannuation split and the wife retain a greater proportion of the parties’ realisable assets?
e)If the court determines there should be a superannuation splitting order, should such order equalise the parties’ superannuation entitlements or divide the superannuation entitlements 60:40 in the husband’s favour to reflect the $34,000.00 of superannuation he had at the commencement of cohabitation?
f)Who should retain the former matrimonial home (as both parties wish to do so)?
The legislation
Section 79 of the Family Law Act1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
The parties are in agreement in relation to the value of their assets.
Where they are apart is whether the funds expended by the husband after separation from the parties’ joint savings should be “added back” into the property pool.
The issue of “add backs” has been considered at length by the Full Court. The authorities are quite clear that monies that are existing at separation which are used by the parties to fund their reasonable living expenses will not be notionally added back into the property pool (see M & M [1998] FamCA 42, C & C [1998] FamCA 143, Re NHC & RCH (2004) FLC 93-204 and M and M [2006] FamCA 913).
In C & C (supra), the Full Court held:
“the concept of adding monies recently disposed of back into the pool ought to be the exception rather than the rule.”
In AJO v GRO (2005) FLC 93-218, the Full Court of Holden, Warnick and La Poer Trench JJ held in paragraph 30 the following:
“To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees;
(b)Where there has been a premature distribution of matrimonial assets; and
(c)In the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
It was argued on behalf of the wife that this was not a matter where the husband reasonably expended the savings on his “reasonable living expenses”.
The wife argued that in taking a voluntary redundancy from his long term employer [C], then resigning from employment with his brother-in-law and not pursuing ongoing full-time employment for nearly
18 months thereafter, the husband voluntarily put himself in a position where he was not earning an income on which to live. It was therefore argued that it was unreasonable and unfair that he was able to utilise the parties’ joint savings whilst at the same time leaving the entire financial burden of the children squarely on the wife’s shoulders.
It was submitted on behalf of the wife that this argument also applies to the $10,000.00 received by the husband for relocation expenses. It was the wife’s argument that if the husband had been in full-time employment he could have met bond and other rental and living costs from his earnings.
It is therefore the wife’s position that the whole of $73,000.00 of the parties’ savings at separation which were retained by the husband should be included in the matrimonial pool for division between the parties.
It was argued on behalf of the husband that, save for $3,000.00 which was used to pay part of his legal expenses, the balance of monies spent by him was used to meet his “reasonable living expenses”.
It was the husband’s evidence that after resigning from the position with his brother-in-law in mid 2009, his income through casual employment with [omitted] was commensurate with that earned by him when employed with [C]. His tax return for the financial year ended 30 June 2010 discloses a gross income of $61,398.00 which is consistent with his previous income when with [C].
The husband gave evidence that in the latter stages of 2010, coinciding with the orders that he vacate the former matrimonial home, there was a downturn in the economy such that the offers for casual employment dried up, resulting in a diminution in his earnings. It was at this time he joined several employment agencies with a view to obtaining a
full-time position as a [omitted].
It was submitted on behalf of the husband that in those circumstances, the monies expended by him from the parties’ savings to meet relocation costs and his living expenses, including monthly rental of $1,520.00, whilst the wife was enjoying the benefit of the unencumbered home, constitute reasonable living expenses and should not be added back to the pool.
I am satisfied that the $10,000.00 expended by the husband upon relocation was a reasonable living expense.
The husband was required to find rental accommodation, pay a bond and set up a home such that both he and [X] and [Y] could live there.
Whilst the wife is critical of the husband’s decision not to seek full-time employment after accepting a redundancy package in 2008, the husband was able to generate a good income as a casual employee until there was a downturn in the economical circumstances of his employer. He then took all reasonable steps to obtain alternate employment. In these circumstances I do not believe he has acted “recklessly, negligently or wantonly”. The amount of $17,500.00 over a 12 month period is not excessive expenditure and accordingly, save for the $3,000.00 expended on his legal fees, I do not believe the savings expended by him post separation should be added back to the pool.
Shortly prior to this judgment being handed down, the court was advised that the Property R property had sold for $330,000.00 and settlement of the sale would be effected on 19 July 2011. My Chambers were provided with the Settlement Statement/Statement of Adjustments, Selling Agents Account Sales and the Capital Gains Tax reconciliation prepared by the husband’s accountant based on a sale price of $330,000.00.
The value attributed to the Property R property will reflect this recent information.
In these circumstances I find the matrimonial assets to be divided between the parties to consist of the following:
Property M $485,000.00 Property R
Less Capital Gains Tax
Less Sale Costs/Adjustments$330,000.00
<$53,151.21>
<$8,271.22>
$268,575.57
Savings (husband) $47,000.00 Savings (wife) $1,000.00 Wife’s motor vehicle $1,500.00 Husband’s motor vehicle $4,000.00 Husband’s motorbike $7,000.00 Husband’s boat $5,000.00 Husband’s [omitted] shares $8,710.00 Total $827,785.57 Superannuation:
Husband’s superannuation entitlements with [A] Super and [M] $154,970.00 Wife’s superannuation entitlements $7,452.00 Total $162,422.00
Contributions
It is common ground that at the commencement of the relationship the husband owned a block of land at Property R. No evidence was led as to its’ value at the commencement of cohabitation.
It was also common ground that the husband owned the Property S property which he purchased for $93,500.00 utilising his savings and a redundancy payment he received from [omitted] Corporation after
13 years of employment. The wife made no contributions to the acquisition of either of these assets.
The Property S property was sold in 1999 for $125,000.00, which enabled the parties to purchase the former matrimonial home.
It was argued on behalf of the husband that the wife made no contribution to the initial acquisition of Property R and very limited contribution thereafter as this property has not been developed by the parties since they commenced cohabitation. It was argued that the Property R property currently constitutes 30 per cent of the current asset pool of the parties.
It was further argued on behalf of the husband that the Property S property was the springboard that enabled the purchase of the former matrimonial home with a relatively small mortgage of $100,000.00 which they were able to pay off in a relatively short period of time.
It was submitted on behalf of the husband that in these circumstances a 20 per cent adjustment in his favour with respect to contributions would be well within the range given that 40 per cent of the current asset pool is reflected by the husband’s initial contribution.
Whilst the initial contributions of the husband are conceded by the wife, it was argued that the wife’s contributions as parent and homemaker over a 15 year marriage and particularly after separation, where the wife had the primary care of the children and where the husband, because of his decisions in relation to his employment, paid minimal child support, should impact on the weight to be given to the husband’s initial contributions.
Counsel for the wife referred the Court to the matter of Williams & Williams [2007] FamCA 313 where their Honours Kay, Coleman & Stevenson JJ held in paragraphs 26 and 27 as follows:
26.We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27.In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
It was therefore argued on behalf of the wife that given the relatively lengthy 15 year marriage, the wife’s primary care of the children and her substantial contributions to the care of the children both financially and as primary carer post separation, the husband’s initial contributions should be given a weighting of between 7.5 and 10 per cent.
There is no doubt that the assets brought into the marriage by the husband have ensured that the parties have an asset pool much greater than that which they would have otherwise been able to achieve.
In particular, the block of land at Property R, to which the wife has made no contribution, save and except ensuring rates were paid and maintenance took place, has added considerably to the asset pool available to them.
At the same time, the wife’s contributions as homemaker and parent over the 15 year marriage have enabled the husband to focus on his role as the major income earner such that the parties were able to enjoy the benefit of an unencumbered home for quite a considerable period of the marriage.
When balancing the husband’s initial contributions with the contributions both parties have made during the course of the relationship I am satisfied that there should be a loading in the husband’s favour for his initial contributions in the amount of
20 per cent.
Section 75(2) factors
The wife is 40 years of age and is currently employed on a full-time basis as a [omitted] earning approximately $30,000.00 per annum. There is no guarantee that she will have a full-time position next year.
The wife has the primary care of the parties’ two children, [X] aged
16 and [Y] aged 12 and will continue to do so into the future. [Y] has been diagnosed with Asperger’s disorder and with a mild intellectual disability and thus has his own special needs.
The husband is 46 years of age, is a qualified [omitted] and has recently obtained employment which will enable him to earn in excess of $60,000.00 per annum.
The orders that will be made in relation to the care of the parties’ sons [X] and [Y] are such that they will spend significant and substantial time with the husband.
It was argued on behalf of the wife that the court must take note of the quite disparate earning capacities of both parties, and in particular that there is no guarantee that the wife will be able to continue to be employed for 35 hours a week at her school into the future given the uncertainties around funding.
It was also argued on behalf of the wife that whilst [X] is now 16 and entering his final years of high school, [Y] is only 12 and that with his special needs the wife’s responsibilities for him could continue well beyond his school years.
It was therefore argued that given these factors there should be a loading in the wife’s favour of 20 per cent pursuant to section 75(2) factors.
On behalf of the husband it was conceded that he does have a higher earning capacity. It was argued however that given the ages of the children and that they will be spending significant and substantial time with him, and in circumstances where he will be paying appropriate levels of child support now that he has obtained full-time employment, the appropriate adjustment in the wife’s favour should be 10 per cent.
Whilst neither party can be considered to be high income earners, there is no doubt that the husband’s capacity to support himself is considerably greater than that of the wife.
Further, the wife will have the primary responsibility for the care of [X] and [Y], and in particular [Y], for some time into the future.
In all these circumstances, I am satisfied that an appropriate adjustment for section 75(2) factors is 20 per cent in the wife’s favour.
Superannuation
It was argued on behalf of the wife that the court had a discretion, when considering the parties’ disparate superannuation entitlements, whether to make an order splitting superannuation or in the alternative allow a greater proportion of the parties’ realisable assets to be retained by the wife.
It was submitted on her behalf that given her primary responsibility for the care of the children and her demonstratively lower earning capacity than that of the husband, that it would be a just and equitable outcome to allow her to retain the matrimonial home and for the husband to retain the whole of his superannuation entitlements.
It was argued on behalf of the wife that this outcome would be very close to an equal division of the parties’ assets between them, particularly in circumstances where the whole of the savings retained by the husband at separation was included in the property pool. She argued this was an appropriate adjustment to the husband and would compensate his retaining assets that could not be immediately realised.
It was argued on behalf of the husband that given the parties’ relatively young ages of 40 and 46 respectively, that such an order would greatly disadvantage him as he would not be able to access his superannuation for almost 20 years. Further, he argued that such orders would reduce his ability to provide a home for himself and the children.
That the court has the power to make orders in the terms sought by the wife is not in doubt. The Full Court in D and D [2006] FamCA 199 upheld a decision of a Federal Magistrate at first instance whereby the wife received all of the realisable assets and the husband retained only his superannuation interests.
In that matter, their Honours in paragraph 17 held as follows:
“Since the availability of such orders following the introduction of Part VIIIB, consideration of the constitution or “mix” of the assets with which each party will be left as a result of proposed orders would seem a necessary, if not critical, factor in determining the justice and equity of proposed orders in each case in which superannuation interests are involved.”
In the matter of L and L [2003] FamCA 40, Moore J observed, where the wife was seeking orders that she retain the bulk of the in specie assets and the husband retain the majority of the parties’ superannuation entitlements, the following:
“It is a question that has to be determined by reference to what is just and equitable in all of the circumstances.”
Looking at the totality of the parties’ realisable asset pool of in excess of $800,000.00, that neither of them will be able to access their superannuation for nearly 20 years and their ongoing responsibilities in relation to the care of their children, I am satisfied that this is a matter in which a superannuation splitting order should be made.
It was argued on behalf of the wife that in the event the court was not persuaded by her arguments that there should not be a superannuation splitting order, that if such order were to be made then the parties’ respective superannuation entitlements should be equalised.
Whilst conceding the husband’s greater initial superannuation entitlements at the commencement of cohabitation, it was argued, in similar terms to that which applied to the division of the parties’ realisable assets, that the contributions made by her to the relationship during cohabitation and subsequently, as well as the disparate section 75(2) factors were such that there should be an order made that equalised the parties’ respective superannuation entitlements.
It was argued on behalf of the husband that given his greater initial superannuation entitlements of some $33,000.00 and the 20 year period before which either of the parties could access their superannuation, that a superannuation splitting order should be made such that the husband retain 60 per cent of the parties’ current superannuation entitlements and the wife 40 per cent of their current superannuation entitlements.
On balance, I am more persuaded by the arguments put on behalf of the wife in the context of the division of the superannuation, and as such am satisfied there should be a superannuation splitting order such that the parties’ respective superannuation entitlements are equalised.
Who should retain the former matrimonial home?
Both parties are seeking to retain the former matrimonial home.
It was argued on behalf of the wife that she wished to be afforded the opportunity to retain the former matrimonial home so that she, as the primary carer for [X] and [Y], would be able to provide them with the security of remaining in the matrimonial home.
It was her evidence that she had made appropriate enquiries with the bank and had a borrowing capacity of $68,000.00.
It was argued on behalf of the husband that he wished to be able to retain the matrimonial home as he believed the wife would not have the capacity to do so if orders were made in the terms proposed by him. He also sought orders that if the wife was afforded the opportunity by the court to retain the property and was financially unable to do so, then he should be given the opportunity to retain that property in her stead.
As is apparent from this judgment, I have determined that a just and equitable division of the parties’ realisable assets between them is that they should be divided equally.
As noted previously in this judgment, the Property R property sold subsequent to the final hearing of this matter for $330,000.00 and after sale costs and allowance for Capital Gains Tax, the wife will be required to pay to the husband the sum of $74,000.00. I believe the wife will have the capacity to borrow such an amount. The wife will also have the capacity to service a loan of that amount.
Given that the wife is the primary carer of [X] and [Y] and is desirous of retaining the former matrimonial home in order to be able to provide them with the continuity and security of the home in which they have grown up, I am satisfied it is appropriate to make orders allowing the wife to be given the opportunity to retain that property.
Just and equitable
As can be seen, I am satisfied that a just and equitable outcome for these parties is for there to be an equal division of both their realisable and superannuation assets between them.
I am satisfied that this is an appropriate adjustment of the husband’s initial contributions against the section 75(2) factors that are weighted in the wife’s favour.
I am also satisfied that this affords the wife the opportunity to retain the former matrimonial home and at the same time realises the balance of the parties’ assets such that the husband will be able to purchase for himself an equivalent home in the same area as the wife so that he is able to provide appropriate accommodation for himself and the children when they are living with him.
Accordingly, orders will be made that reflect this determination.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 22 July 2011
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