Wills and Wills
[2009] FMCAfam 36
•21 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLS & WILLS | [2009] FMCAfam 36 |
| FAMILY LAW – Property settlement – parenting and child support – dispute as to contribution in career enhancement of husband – non-specific allegations of wastage or retention of undisclosed funds – approach when lacking evidence of same – benefits to child of a meaningful relationship with parent with whom they do not live – risk assessment of travel overseas with such parent – dismissal of variation of child support in particular circumstances. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC(2) & (3), 75(2), 79(2)(4)(a)(b)(c)(d)(e)(f) |
| Russell v Russell (1999) FLC 92-877 In the marriage of Whitely and Whitely (1996) 92-684 |
| Applicant: | MS WILLS |
| Respondent: | MR WILLS |
| File Number: | BRC 10526 of 2007 |
| Judgment of: | Coker FM |
| Hearing date: | 8 September 2008 |
| Date of Last Submission: | 8 September 2008 |
| Delivered at: | Townsville |
| Delivered on: | 21 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Barry & Nilsson Lawyers |
| Counsel for the Respondent: | Mr Hamwood |
| Solicitors for the Respondent: | Williams Roncolato |
ORDERS
That the property of the marriage, including but not limited to the equity in the properties at Property L in Queensland, Property M, in Queensland, Property D in New South Wales, the sale proceeds of the properties at Property P in New South Wales and Property N in New South Wales, and superannuation be divided between the husband and the wife in the following manner:-
(a)45% to the husband; and
(b)55% to the wife.
That as part of the implementation of Order 1, subject to there being agreement as to the value to be placed upon the properties referred to within Clauses 2(a), (b), and (c):-
(a)the wife retain the property at Property L in Queensland;
(b)the husband retain the property at Property M in Queensland;
(c)the husband retain the property at Property D in New South Wales;
(d)the husband retain the stocks, shares, share options, cash, funds in banks and other financial institution accounts, superannuation and notional property in his name or possession;
(e)the wife retain the stocks, shares, share options, case, funds in banks and other financial institution accounts, superannuation and notional property in her name or possession.
That the husband and wife do all acts and sign all documents to refinance any loans and mortgages secured over the properties referred to in Order 2(a), (b) and (c) into the sole name of the party retaining the particular property.
That the properties at Property P in New South Wales and Property N in New South Wales be sold and the net proceeds of sale be divided in such a manner that taking into account the terms of Order 2, the division of the property of the marriage conforms to Order 1.
That in the event of there not being agreement in relation to the value of all such properties as referred to in orders 2(a), (b) and (c), then and in that event, those properties also be the subject of sale and that the net proceeds of sale thereafter be divided in the proportion of 55 percent to the wife and 45 percent to the husband.
That the husband pay the wife child support for the child of the marriage [X] in the sum of $326.00 per week.
That the child of the marriage [X] born in 2000 live with the wife.
That the husband and the wife have equal shared parental responsibility for the major long term issues of the children including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
Notwithstanding the previous Order:
(a)The wife shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The husband shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with him.
That the child of the marriage [X] spend time with and communicate with the husband at all reasonable times as may be agreed but in particular:-
(a) For up to one-half of the school holidays being –
(i)up to two halves of the school holidays each year in the State the child resides;
(ii)up to two halves of the school holidays of each year in the place of the husband’s residence;
and subject to –
A.the husband notifying the wife in writing of the first or second half (or part thereof) of the non-Christmas school holidays not less than three (3) months prior to the commencement of the particular school holiday period;
B.up to half of the Christmas school holidays not to include from the date of the end of school to Boxing Day and the week prior to the recommencement of school at the conclusion of the Christmas school holidays (Christmas school holiday term);
C.the husband notifying the wife in writing of the period in the Christmas school holiday term the child is to spend time with the husband, not less than three (3) months prior to the commencement of the Christmas school holidays;
D.the notifications in Orders 11(a)A to C to incorporate whether the child will visit in the child’s or the husband’s place of residence.
(b)Such other period(s), as agreed between the husband and wife.
(c)The husband is to be responsible for all costs associated with spending time with the child pursuant to these orders including all necessary travel expenses including the costs of any accompanying person.
That all outstanding proceedings otherwise be dismissed.
That each party have liberty to apply within 28 days of this Order in relation to any point of clarification in relation to the Order and with regard to the matter of costs.
IT IS NOTED that publication of this judgment under the pseudonym Wills & Wills is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 10526 of 2007
| MS WILLS |
Applicant
And
| MR WILLS |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced some considerable time ago, in fact on 28 December 2006, when Ms Wills, whom I shall refer to as the wife, filed an initiating application. The respondent to the application is the husband, Mr Wills. There have been a number of issues in dispute between the parties prior to the date of hearing. Each party clarified their position in respect of this matter, by way of both the filing of an amended response by the father and as recently as
2 September 2008, by the filing of a case outline, which included details of the orders that were sought by the wife in relation to the matter.
For the purposes of completeness, and so it is understood exactly what issues are now in dispute, I detail the orders sought by the wife and the husband. The orders sought by the wife in her Case Outline filed on
2 September 2008are as follows:
1.That by way of alteration of property interests pursuant to Section 79 of the Family Law Act.
(a)the wife retain the unit at Property L;
(b)the husband retain the unit at Property M;
(c)the husband retain the property at Property D;
(d)that the properties at Property P and Property N are sold;
(e)and thereafter that taking into account the sale of the properties referred to at order 1(d) above and the value of the remaining assets including but not limited to stocks shares, share options, cash, funds held in all bank accounts, superannuation, notional property, all other assets and financial resources of the parties that the wife receive an amount equal to 75% of the net assets.
2.That as and by way of spousal maintenance, the husband pay the wife the sum of $1,000 per week, with the first payment to commence 7 days from the date of these orders.
3.That as and by way of child maintenance, the husband pay the wife the sum of $500 per week, with the first payment to commence 7 days from the date of these orders.
4.In the alternative to order 4, that as and by way of child maintenance, the husband pay the wife the lump sum of $260,000.
5.That the husband attend to payment of all outstanding costs orders and or costs assessment order of the Family Court and or the Federal Magistrates Court owing to the wife within 7 days.
Children
6.That the husband spend time with the child [X] born in 2000 in Australia at all reasonable times as may be agreed between the parties.
7.That the Australian Federal Police (“AFP”) place the name of the child on the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the PACE Alert System until further order of the Court or consent provided and verified by the AFP, by both parents for travel of the child.
Other
8.That the husband pay the wife’s costs of and incidental to this application.
9.Any other order this Honourable Court deems appropriate.
The husband in his amended response filed on 17 June 2008 sought the following orders:
1.That the property of the marriage, including but not limited to the equity in the properties at Property L in Queensland, Property M in Queensland, Property D in New South Wales, the sale proceeds of the properties at Property P in New South Wales and Property N in New South Wales, stocks, shares, share options, cash, funds in banks and other financial institution accounts, superannuation and notional property (including property previously distributed to be added back) be divided between the husband and the wife in the following manner:-
(a)60% to the husband; and
(b)40% to the wife.
2.That as part of the implementation of Order 1:-
(a)the wife retain the property at Property L in Queensland;
(b)the husband retain the property at Property M in Queensland;
(c)the husband retain the property at Property D in New South Wales;
(d)the husband retain the stocks, shares, share options, cash, funds in banks and other financial institution accounts, superannuation and notional property in his name or possession;
(e)the wife retain the stocks, shares, share options, case, funds in banks and other financial institution accounts, superannuation and notional property in her name or possession.
3.That the husband and wife do all acts and sign all documents to refinance any loans and mortgages secured over the properties referred to in Order 2(a), (b) and (c) into the sole name of the party retaining the particular property.
4.That the properties at Property P in New South Wales and Property N in New South Wales be sold and the net proceeds of sale be divided in such a manner that taking into account the terms of Order 2, the division of the property of the marriage conforms to Order 1.
5.That the husband pay the wife child support for the child of the marriage [X] in the sum of $326.00 per week.
6.That the child of the marriage [X] live with the wife.
7.That the husband and wife have equal shared parental responsibility for the child of the marriage [X].
8.That the Court dispense with the parties obligation to comply with s.60I of the Family Law Act.
9.That the child of the marriage [X] spend the following time with the husband:-
9.1 up to one-half of the school holidays being –
(i) up to two halves of the school holidays each year in the State the child resides;
(ii)up to two halves of the school holidays of each year in the place of the husband’s residence;
and subject to –
(a)the husband notifying the wife in writing of the first or second half (or part thereof) of the non-Christmas school holidays not less than three (3) months prior to the commencement of the particular school holiday period;
(b)up to half of the Christmas school holidays not to include from the date of the end of school to Boxing Day and the week prior to the recommencement of school at the conclusion of the Christmas school holidays (Christmas school holiday term);
(c) the husband notifying the wife in writing of the period in the Christmas school holiday term the child is to spend time with the husband, not less than three (3) months prior to the commencement of the Christmas school holidays;
(d)the notifications in Orders 9.1(a) to (c) to incorporate whether the child will visit in the child’s or the husband’s place of residence.
9.2 Such other period(s), as agreed between the husband and wife.
Fortunately, the parties were able to agree on certain matters having been resolved and I was advised by counsel that the applications which were no longer being proceeded with included contravention and contempt proceedings which had been commenced by the wife, as well as enforcement proceedings.
The indications given by counsel for the wife at the commencement of the hearing, was that none of those matters were being pursued and that there had been an agreement reached in relation to the payment of costs with regard to the enforcement proceedings, which have been agreed in the sum of $18,000. I was not asked to make any orders in relation to that particular aspect of the matter.
The issues that remained, however, in dispute as between the parties, were issues in relation to child support, issues in relation to the final distribution and resolution of property and, unfortunately, a continuing issue in relation to the amount of time that the father was to spend with the child, [X]. [X] was born in 2000 and therefore at the time of trial, was about eight and a half years of age.
Before addressing the various matters in relation to these proceedings, it is necessary to, of course, consider the evidence that was called in relation to the matter. Only the mother and the father were required to give evidence in relation to the proceedings and only the mother and the father were required for cross-examination. I had the opportunity of seeing both the mother and the father in the witness box and also, of course, had the opportunity of considering the material that had been filed in relation to the proceedings.
I must say that I thought both the mother and the father were generally honest witnesses, doing the best that they could to deal in an appropriate manner with issues in relation to the continuing dispute between the two of them. In so far as the wife was concerned, I noted what I thought were very reasonable approaches taken by her in respect of the parenting issues.
The mother, understandably, with regard to the child [X], had concerns about the amount of time that the father would spend with the child. The concerns, however, were not I thought, based on a suggestion that it was not to the child's benefit to spend time with the father, but rather were based on concerns that she had as to the significant amount of travel that would be required, the father being based in China with his employment with the [omitted] Hotels Group, and the mother now living in Brisbane. The mother, quite properly, however, had given serious and significant consideration to what arrangements should be put in place with regard to the parenting of the child and how those arrangements could best be met. The mother was genuinely concerned about that considerable travel and, in particular, the age of the child.
I gained the distinct impression, however, that the mother, whilst having considered those aspects of the matter, was still to at least some degree, concerned about whether the father would in fact be the person significantly involved in the day to day care of the child.
However, I note particularly that the mother, when questioned about the father's relationship with the child and the father's new partner's relationship with the child, was full and frank in respect of the apparent enjoyment that [X] has in spending time with the father and with his partner, as well as recognising the benefits to the child of having that relationship with the father.
When asked in cross-examination specifically whether there were any reasons why the mother thought that the child should not spend time with the father, she was very quick to acknowledge that the child could spend time with the father, but suggested that the reason that there were limitations sought by her in relation to the time to be spent, was because of reservations she had, not about the father and his relationship with the child, but reservations about the difficulties with lengthy international flights for an eight year old child and also some overriding concerns that the child may not be returned to her. She was concerned about the difficulties that would arise there, in light of the fact that the father was in China and that there may be concerns as to whether there were effective means by which the child could be returned, if the father held the child over.
In cross-examination, however, the mother acknowledged that the father had submitted to the jurisdiction of this Court and to the laws of Australia. It was acknowledged by her that there was little likelihood of, as it was put to her, the father "abducting the child". The mother's response was simply that, she had a feeling perhaps of concern that the father might not return the child and she acknowledged that that had, at least to some extent, been exacerbated as a result of certain difficulties that had been experienced, in the past.
The mother said, for example, that she was troubled by the fact that on one previous occasion, when the father had spent time with the child she had been attempting to communicate with the father about issues in respect of return and that the father had had his telephone turned off. She said that that certainly was an issue of concern, but it was also of concern to her that the father was not apparently willing to spend time with the child in Australia, but rather wishes to have her travel to other parts of the world.
The mother also said that she was concerned that the father may have been able, though there was no evidence that he had done so or would have been able to do so, to obtain a British passport for the child and therefore operate in relation to international travel, not only between Australia and China, but otherwise, with there being no communication by the father to her.
The mother, I accept, had concerns in relation to such matters, but I note also that she was frank enough, in the evidence that she gave, to acknowledge that there was nothing really in the father's behaviour other than her suspicions that gave cause for a concern that the child would not be returned.
The mother, in answering those questions, simply indicated that whilst she acknowledged there was no evidence that there might be a non return of the child, she just did not feel comfortable at this particular juncture. I gained the distinct impression that whilst the mother had those concerns, she acknowledged that they were perhaps, at least to some extent, a little far fetched and that they were not really a reflection of what would be appropriate in relation to the child having the opportunity to spend time with the father, with his partner, and of course in a very short time, if not already having occurred, with a sibling, being the child of the father and his partner, Ms C.
The mother seemed more inclined as the hearing progressed, to acknowledge that there would be benefits to the child in spending time with the father, though was at pains to emphasise that that should involve direct time with the father, rather than, for example, almost entirely the time being spent with the father's partner, or in the care of a nanny or otherwise. I gained the distinct impression that the mother was inclined to acknowledge time being spent, if there were assurances, which were subsequently given, that the father would be the person primarily exercising and enjoying time with the child.
In so far as the issues of an increase in child support were concerned, the mother had indicated in material that she was seeking an order with regard to the father effecting a payment to her by way of increased child maintenance of $500 per week. She acknowledged, however, that the father, if he were to be spending time with the child as he proposed, including time overseas, would be responsible for all of the costs associated with such travel. She indicated that that would have to be the case and included in that acknowledgement, a recognition that she simply did not at current circumstances have the capacity to contribute to the costs associated with travel.
She was asked whether she had taken that particular aspect of the matter into account when she had indicated that she was seeking child support of $500 and she said that she had. She was asked how that had been the case and, I must say, I was somewhat troubled by the evidence that she gave in that regard. Her response was not to say that she did not have the capacity to contribute, or to suggest that the father had significant additional amounts that were available to him such that it would not be a difficulty for him to contribute, but rather there seemed to be some certain degree of pique in the mother's answer in that she indicated that it was not her who influenced where the father lived and that therefore he should be responsible for those costs.
Of course, it seemed to have little appreciation of the fact that the father worked for an international hotel chain, that it was part and parcel of such employment that there was international appointments and that they moved from place to place. The mother, for example, had when living with the father, taken the opportunity to live in Vietnam and other Asian countries where the father's placements had been. I was troubled by that apparent lack of appreciation of the fact that all that flowed in relation to the financial circumstances of the parties and, of course, the considerable child support that was already paid, was as a result of the father's employment and there was, I thought, a lack of grace on the mother's part to suggest that the father should be responsible for all costs because of the fact that he lived internationally.
If he were to live, for example, closer to the mother there would be, one would think, significant reductions in the available income for distribution particularly by way of child support and it seems to me that that is a factor which should properly have been taken into consideration by the mother. I note also that the mother acknowledged that there was funds currently available to her over and above those which she sought and therefore there was, of course, a significant difficulty in my assessment in relation to this matter with regard to any increase in the mother's entitlements with regard to child support.
The fact is that if the mother was not in a position where she was able to properly show an additional need over and above those needs which were already being met through her own sources of income and through child support being paid, then she fell short of the hurdle that needed to be addressed in relation to an increase in child support.
I note also that in relation to the issue of property settlement, the mother was asked about the apportionment sought by her. The mother, in the material that was filed, suggested that the appropriate course to follow would be for an adjustment to be made which was basically the equivalent of 75 per cent/25 percent in her favour.
The mother, however, based that on a number of factors, one of which of course, significantly related to the disparity in income earning capacities between she and the husband. But she also sought to suggest that the father had in some way utilised funds, which had previously been held jointly by the parties, exclusively for his own purposes.
In cross-examination, however, the mother's position changed significantly. I gained the distinct impression that there was finally an acknowledgement on her part, that moneys that were held, approximately $190,000, had to a very significant degree, if not entirely, been utilised toward the payment of continuing expenses in relation to the various investment properties, that the parties owned.
In cross-examination, when asked about those payments and whether she in fact acknowledged and accepted that the vast majority, if not the whole of the moneys, had been utilised for those purposes, she indicated that that was the case and that she recognised that the moneys had been spent toward payment of mortgage payments, because of the fact that there was simply insufficient funds generated from rental income to meet the mortgage payments. The mother also acknowledged that the properties had appreciated in value, since the time that they had been acquired by she and the father and that therefore there was a benefit received by both she and the husband in the husband having continued to contribute towards the expenses, associated with the properties.
I accept that the mother would be hoping to gain as much as she could from the property settlement to be effected between the parties. I note, however, that the wife's position in relation to this matter really was one where, when the real evidence in relation to the matter was to be taken into consideration, there was an appreciation that what might have previously been available prior to separation and just subsequent to separation, had been utilised as between the parties and that therefore there was little that could be looked at in relation to moneys, for example, suggested to have been used by the father simply and solely for his own purposes.
The mother was not keen to give those acknowledgements, but to her credit when questioned in relation to such matters, it was obvious that she accepted that that had been what had occurred, in relation to the proceedings.
I was generally impressed with the mother. She had clearly taken steps to ensure that she was able to be available to meet the needs of the child and therefore, to a significant degree, had put her own career on hold. I note, for example, that she was cross-examined as to what work she had been able to perform or had been willing to perform when living overseas and the suggestion was clearly put on the part of the father, that the mother had enjoyed the ex-pat lifestyle living overseas and that she had contributed little.
I do not accept that that is the case. Whilst there may have been more that the mother could have done, for example, in taking up a position as a secretary to an ambassador in Vietnam, there was little expectation that that could or should have been done. I gained the distinct impression that the mother did contribute and assist her husband in relation to his duties as the general manager of a large international hotel and that that, along with spending time with the child, as well as of course involving herself in the lifestyle available to ex-pats living in foreign countries, was an appropriate course and form of conduct to be undertaken by her.
I do not think that it could be suggested that the mother had contributed less, as a result of not taking on additional employment as might or might not have been available. I gained the distinct impression that the mother contributed to the father's career in an appropriate manner and that that should be recognised in relation to the distribution to be effected between the husband and the wife.
I turn now to the husband's position in relation to this matter. Again, I gained the distinct impression that the husband had been frank in the answers that he gave in relation to the cross-examination and had also been generally open and frank in the evidence that was presented to the Court in the affidavit that had been filed by him in support of these proceedings, that affidavit having been filed on 26 August 2008.
The father acknowledged that he had perhaps not been as comprehensive in the information that he had provided, particularly leading up to the hearing, nor had he been as fully cooperative as one would have hoped in relation to payment of costs orders and other payments, that were required to have been made. That needed, however, to be balanced against the difficulties that I fully accept the husband would have experienced in the conduct of proceedings in Australia, whilst living in Shanghai.
I gained the distinct impression that the husband had done the best that he could in relation to such provision of information and that it was to his credit that information, albeit late in time, had been provided, for example, with regard to the existence of a further life insurance entitlement, which had not previously been referred to in the lists of assets, that have been provided.
The father in particular, was questioned about the time that he wished to take and the opportunities open to him to spend time with the child. The father had not been as dedicated as one might have hoped in relation to taking opportunities to spend time with [X] and it was noted, that in the last 13 months since separation he had only, unfortunately, taken the opportunity to see [X] for eight days during the entirety of that period.
He was asked whether he had had the opportunity to spend regular time with the child and he acknowledged that he had not. The father certainly could have, and should have, taken greater opportunities and made greater endeavours to spend time with the child, but by the same token, I accept that there were difficulties associated with the very considerable distances that existed and I accept that there would have been a degree of frustration experienced by the father, in relation to his wish that the child should spend time with him in China and the mother's reluctance, if not downright refusal, to facilitate that occurring.
The father said that he wished to spend more time with the child. The father indicated that he would hope to spend as much time as possible and, in his oral evidence, indicated that for Christmas 2008 he would hope that he would have the opportunity to spend three weeks, or even more, with the child.
He was asked if there would be any restriction on him having [X] in his care, particularly if, for example, he had the assistance of his partner, Ms C, and he indicated that that would not be an issue and he knew particularly of the close relationship between [X] and her step mother, Ms C. I would think that the father would be true to his word in relation to experiencing as much as possible, opportunities for time to be spent with [X], and more particularly I am more than satisfied and have no concern whatsoever that the father would act appropriately in relation to spending time with the child, but more particularly would act appropriately with regard to arrangements in relation to the return of the child to Australia.
In relation to the issue of child support, I have already commented that I had some concerns as to the amount being claimed by the mother, an additional payment of $500 per week, in that the father was already paying an amount assessed by the Child Support Agency of $326 per week and, on the information that was before the Court, I was not satisfied that there was a need shown by the mother and therefore she had, if you like, fallen short in relation to the requirement for a variation being effected in relation to child support.
Additionally, however, I note that the father had indicated that he would be responsible for the costs associated with spending time with the child, and that his assessment of the costs associated with him travelling to Australia, accompanying [X] back to China and then returning with her to Australia, at least until such time as there was an acknowledgement that the child was comfortable in travelling unaccompanied, would mean that each trip would cost somewhere in the vicinity of $9000. The father, if he is to spend significant time, and it would be beneficial for the child as well as the father for that to occur, would be incurring very significant expenses.
I am more than satisfied that the father would appropriately act in that regard with respect to arranging the travel and meeting the expenses associated with it and that those expenses, combined with the payments already being made in relation to child support, are in all the circumstances just and fair.
Insofar as the issue of property is concerned and, of course, particularly with regard to the distribution to be effected between the parties and the father's evidence in relation to that, I am satisfied that the father would be true to his word in relation to this matter and, in particular, to the proposals put with regard to property settlement. The husband's proposals related to basically a distribution of 60 percent to the husband and 40 percent to the wife.
I am not satisfied that that also accurately or appropriately reflects the situation of the parties. If anything, as I indicated in relation to the mother, she contributed to the husband's success as a manager of a major international hotel. She was available and whilst the husband seems to have, to a significant degree, downplayed the relevance of that, I am far more inclined to the view that the mother did contribute in the role of supportive wife, mother and partner, such that her contribution in relation to the acquisition of assets was appropriate, in all the circumstances.
In any event, I am somewhat troubled by the suggestion that the husband has more significantly financially contributed to the acquisition of assets than has the wife, simply as a result of the disparity between their incomes, certainly at the time that they were living together and subsequent to separation. The fact is, that the father had the opportunity to earn the significant income that he did directly and closely as a result of the opportunities made available to him, in particular, the opportunities made available as a result of the wife taking on the primary role in relation to the care and supervision of the child, [X].
As far as that is concerned therefore, I would think that the husband's position in relation to suggesting that there had been greater contributions by him were somewhat ill conceived and showed a lack of appreciation of the opportunities made available to him, as a result of the actions of the wife.
Other than that lack of appreciation, however, of the wife's role in relation to this matter, I must say that I was generally impressed by the father and thought him particularly genuine in relation to his desire to have the opportunity for a closer and more significant relationship with the child.
I turn now, as I must, to issues in relation to the law and the application of the law in relation to the outstanding matters.
I need, obviously, to look at the law in respect of financial determinations between husband and wife and, in that regard, the relevant law is as follows. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 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) 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 include:
a) the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b) the contribution made by a party to the welfare of the family including any contribution made in the capacity of home maker or parent;
c) the effect of any proposed order upon the earning capacity of either party;
d) the matters referred to in subsection 75(2) as far as they are relevant;
e) any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f) any child support payable.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC 92-595 and In the marriage of Whitely and Whitely (1996) 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate.
In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable [see section 79(2)]. It is the justice and equity of the actual orders that the court must consider, Russell v Russell (1999) FLC 92-877.
I turn now to the assessment of the assets and value of the assets of the parties. In that regard, there is unfortunately significant difference between the husband’s and the wife’s estimates. Fortunately, however, there is agreement as to the major real property assets of the parties. For convenience, I include here in list form those real properties and the husband’s and wife’s estimates of value.
Husband’s Estimates Whole Estimate
Property P NSW $420,000
Property D NSW $530,000
Property N NSW $425,000
Property L QLD $500,000
Property M QLD $765,000
TOTAL $ 2,640,000
Wife’s Estimates
Property M $875,000
Property L $650,000
Property D NSW $650,000
Property P NSW $480,000
Property N NSW $469,000
TOTAL $3,124,000
Generally however, the liabilities appear to be agreed but of course that can be clarified with the Commonwealth Bank who is the lender in relation to each of the liabilities attached to the real property. The husband’s figures appear to be the more current and place the liabilities at:
Liabilities
Property P NSW $ 73,000
Property D NSW $ 94,000
Property N NSW $146,000
Property L QLD $386,000
Property M, QLD $577,000
TOTAL LIABILITIES $ 1,276,000
There is an equity in the real property therefore of between $1,364,000 and $1,848,000.
Otherwise, there are less significant assets that also are required to be taken into consideration in order to facilitate the total calculation. In particular, they include [hotel omitted] shares or options which are available to the husband but, according to him, may or may not be taken up, as well as Siam Commercial Bank Account held by the husband and apparently containing approximately $15,000.
There are also superannuation entitlements held by the wife of approximately $27,000 and an interest held by the husband in the [omitted] Provident Fund of approximately $127,000.
Concerns were raised by the wife in relation to other investments which might or might not have been held by the husband but, generally, assertions have been made by her in relation to the dissipation, for improper purposes, of such monies though unfortunately there has been little evidence provided which would satisfy me as to there being undisclosed other funds or assets, available for distribution between the parties.
As best one can assess therefore, the assets referred to herein comprise those which are available for distribution between the parties including, of course, personal items and chattels and other property which have been retained by either the husband or the wife. I intend to include the monies held in the Siam Commercial Bank account, in the sum of $15,000 and superannuation, totalling $154,000.
The amount for distribution therefore is between $1,533,000 and $2,017,000.
The second stage in relation to any assessment is to look at the financial and non-financial contributions of both the husband and the wife. Clearly, there have been different contributions made by each during the relationship though I have no doubt as to the equality of those contributions though they may not necessarily, in the wife’s case, have been as significant, financially, as that of the husband.
As I commented earlier in my reasons, however, I am more than satisfied that the husband was able to further and develop his career as a result of the contribution and assistance provided by the wife, both as a homemaker and a mother, which enabled the husband to have that time necessary to progress his career with an international hotelier. The wife, no doubt, also contributed as a hostess and partner in appropriate circumstances and, in my assessment, though different in form, the contributions of the husband and the wife were equal and I assess the appropriate distribution as between them as a 50/50 distribution.
The third step is to take into consideration those matters arising as relevant pursuant to the provisions of section 75(2) of the Family Law Act. Obviously two matters loom large. The first of those is the significant responsibility that the wife takes in relation to the future care and responsibility for the child, [X]. Whilst, no doubt, the husband will seek an opportunity for as much time as possible with the child, the fact is, that the vast majority of time and therefore responsibility, will fall upon the wife. This will have a consequential effect, certainly for the next few years at least, on her availability for employment and therefore opportunities for increased remuneration and career advancement.
Whilst the husband will no doubt continue to make appropriate child support contributions and undertake to continue the additional responsibilities and expenses associated with his spending time with the child, there will be continuing day-to-day expenses to be met by the wife.
The second factor which also must be considered is the very great disparity in future income earning capacities of the husband and the wife. No matter what future career direction the wife might take or how appropriately she might apply herself to career enhancement, it could not be assumed that the wife will be able to earn anywhere near the income or associated benefits which are available to the husband.
As I have commented, the husband will have responsibilities in relation to child support and to the additional expenses associated with his spending time with the child but in my view, the two factors to which I have referred are such that a further adjustment in favour of the wife is appropriate. I would assess that further adjustment at 5 percent which would lead to a distribution of property as between the wife and the husband of 55 percent in favour of the wife and 45 percent in favour of the husband.
The final step in relation to an appropriate distribution is an overall consideration of the assets and equality of any such distribution. In that regard I was interested but not influenced, by the suggestion on behalf of the husband, that the wife could “make ends meet quite comfortably” on 40 percent of the matrimonial assets, if appropriately invested, and that therefore that was an appropriate distribution as between the parties.
With respect, such a suggestion is in my view wrong at law and, of course, socially unacceptable. The distribution which I have found is appropriate in relation to this matter is just and equitable and affords appropriate opportunities for both the wife and the husband to conclude their financial ties with each other and to then move forward with their lives.
I note, however, that whilst there appears to be an agreement in relation to retention by one or other of the parties of real property or agreed sale of certain properties, there is no agreement as to value. It would seem to me that the only proper order and that which I intend to make is for the retention by each party of those properties agreed between them, only if the values to be attributed to each property is agreed between the parties. If there is no agreement in relation to all the three properties to be retained by either the wife or the husband, then they also should be the subject of sale so that the equity can be distributed between the parties.
The proposals put by both the wife and the husband in relation to how a division of assets could be effected, though obviously there were no agreed percentages, is an appropriate means of facilitating the division between the parties, subject of course to there being sufficient funds available from the sale of certain assets to effect the distribution. The orders that I intend to make in relation to property reflect the need for an obvious cash adjustment to be effected.
Insofar as the issue of an increase in child support is concerned, I have already commented upon the fact that the husband’s payments would include very signification amounts associated with travel so as to spend time with the child, either in Australia or, as is currently the situation, in China. The wife was unable to show any real need for child support or at least an increase in child support over and above that which is already paid by the husband.
I am not satisfied that there is any proper basis upon which there could or should be an increase over and above that which is already paid by the husband, and it will be no doubt the subject of review over time. There is no special circumstance which could not appropriately be included in the considerations which have already been taken into account, including particularly the adjustment which has been made in relation to property settlement, pursuant to the provisions of section 75(2) of the Family Law Act.
Accordingly, I intend to make orders in relation to the payments by the husband to the wife of child support for the child, [X], in the sum of $326.00 per week but with the recognition that the husband is also to be solely responsible for all expenses associated with time to be spent by him with the child, be it in Australia or otherwise.
Finally, I am required to consider the issues in relation to the time to be spent by the husband with the child, [X]. There does not appear to be any real dispute as to the benefits to the child of having the opportunity for a meaningful relationship with the husband as envisaged within both the objects of the act as set out in section 60B, nor is there any suggestion that it would not be an appropriate consideration arising pursuant to the provisions of section 60CA or pursuant to the considerations set out in section 60CC(2) and (3).
The wife’s prime concern, as I referred to earlier, were suspicions about the husband and his genuine intention to spend time with the child and to foster a relationship with her. I am satisfied however that the husband recognises the benefits of a relationship with [X] and himself but also acknowledges the primary attachment to the wife and the need for that to be continued. I have no concerns in relation to the husband’s intentions and in particular the understanding of the need for the return of the child, so as to meet her own best interests at the conclusion of any periods to be spent by him with her. More particularly, I can envisage nothing other than benefits to the child of having the opportunity to experience different cultures and countries when spending time with the husband. In my view, the husband’s proposals of one half of the time being spent in Australia and the other half being spent in other countries and experiencing other cultures can be nothing other than beneficial to the child.
I intend therefore to make orders generally in terms of those sought by the husband in relation to his opportunity to spend time with the child.
Accordingly, the orders that I intend to make in this matter, including those which are obviously agreed between the parties, are as follows:
That the property of the marriage, including but not limited to the equity in the properties at Property L in Queensland, Property M in Queensland, Property D in New South Wales, the sale proceeds of the properties at Property P in New South Wales and Property N in New South Wales, and superannuation be divided between the husband and the wife in the following manner:-
(a)45% to the husband; and
(b)55% to the wife.
That as part of the implementation of Order 1, subject to there being agreement as to the value to be placed upon the properties referred to within Clauses 2(a), (b), and (c):-
(a)the wife retain the property at Property L in Queensland;
(b)the husband retain the property at Property M in Queensland;
(c)the husband retain the property at Property D in New South Wales;
(d)the husband retain the stocks, shares, share options, cash, funds in banks and other financial institution accounts, superannuation and notional property in his name or possession;
(e)the wife retain the stocks, shares, share options, case, funds in banks and other financial institution accounts, superannuation and notional property in her name or possession.
That the husband and wife do all acts and sign all documents to refinance any loans and mortgages secured over the properties referred to in Order 2(a), (b) and (c) into the sole name of the party retaining the particular property.
That the properties at Property P in New South Wales and Property N in New South Wales be sold and the net proceeds of sale be divided in such a manner that taking into account the terms of Order 2, the division of the property of the marriage conforms to Order 1.
That in the event of there not being agreement in relation to the value of all such properties as referred to in orders 2(a), (b) and (c), then and in that event, those properties also be the subject of sale and that the net proceeds of sale thereafter be divided in the proportion of 55 percent to the wife and 45 percent to the husband.
That the husband pay the wife child support for the child of the marriage [X] in the sum of $326.00 per week.
That the child of the marriage [X] born in 2000 live with the wife.
That the husband and the wife have equal shared parental responsibility for the major long term issues of the children including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
Notwithstanding the previous Order:
(a)The wife shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The husband shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with him.
That the child of the marriage [X] spend time with and communicate with the husband at all reasonable times as may be agreed but in particular:-
(a) For up to one-half of the school holidays being –
(i)up to two halves of the school holidays each year in the State the child resides;
(ii)up to two halves of the school holidays of each year in the place of the husband’s residence;
and subject to –
A.the husband notifying the wife in writing of the first or second half (or part thereof) of the non-Christmas school holidays not less than three (3) months prior to the commencement of the particular school holiday period;
B.up to half of the Christmas school holidays not to include from the date of the end of school to Boxing Day and the week prior to the recommencement of school at the conclusion of the Christmas school holidays (Christmas school holiday term);
C.the husband notifying the wife in writing of the period in the Christmas school holiday term the child is to spend time with the husband, not less than three (3) months prior to the commencement of the Christmas school holidays;
D.the notifications in Orders 11(a)A to C to incorporate whether the child will visit in the child’s or the husband’s place of residence.
(b)Such other period(s), as agreed between the husband and wife.
(c)The husband is to be responsible for all costs associated with spending time with the child pursuant to these orders including all necessary travel expenses including the costs of any accompanying person.
That all outstanding proceedings otherwise be dismissed.
That each party have liberty to apply within 28 days of this Order in relation to any point of clarification in relation to the Order and with regard to the matter of costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of COKER FM
Associate: C Herbst
Date: 21 January 2009
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