WILSON and WILSON
[2016] FCWAM 174
•17 AUGUST 2016
JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150 TERRACE ROAD
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WILSON and WILSON [2016] FCWAM 174
CORAM: SUTHERLAND M
HEARD: 29 & 30 JUNE 2016 AND 1 JULY 2016
DELIVERED : 17 AUGUST 2016
FILE NO/S: PTW 5378 of 2013
BETWEEN: MR WILSON
Applicant
AND
MS WILSON
Respondent
Catchwords:
CHILDREN - Equal time
PROPERTY SETTLEMENT - Contributions - Future needs
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms Farmer
Respondent: Self Represented Litigant
Solicitors:
Applicant: Lewis Blyth & Hooper
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Chang v Su (2002) FLC 93-117
Fotia & Welsh [2013] FCWA 112
Goode & Goode (2006) FLC 93-286
Khademollah & Khademollah (2000) FLC 93-050
MRR v GR(2010) FLC 93-424
Reichstein & Reichstein (2006) FamCA 1422
Stanford v Stanford (2012) FLC 93‑518
Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson and Wilson has been approved by the Magistrates Court of Western Australia sitting at 150 Terrace Road, Perth pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION:
1[Mr Wilson] and [Ms Wilson] were unable to reach complete agreement in relation to parenting issues concerning their two children: [Child A] aged 14 and [Child B] aged 11 ½. Mr Wilson and Ms Wilson were largely in agreement about the arrangements for the children during the term school holidays and most special occasion days. They also agreed the issue of parental responsibility during the trial. However, Mr Wilson and Ms Wilson were unable to reach agreement about a number of other matters, including the children’s living arrangements during the school terms and the Christmas school holidays.
2Mr Wilson sought that the children live equally with the parties during the school terms and Christmas school holidays (in particular, for half of each Christmas school holiday in a continuous block of time, rather than a week about arrangement). Mr Wilson also sought a number of other orders in relation to the children, including arrangements when the children travelled overseas on holidays. On the other hand, Ms Wilson initially sought that the children live with her and spend time with Mr Wilson each alternate weekend during school terms. However, in her closing submissions, Ms Wilson conceded that the children should spend increased time with Mr Wilson and proposed that they do so for five nights each fortnight. Ms Wilson otherwise agreed that the parties should equally share the children’s time during the Christmas school holidays, but proposed that it be on a week about basis. Ms Wilson also sought a number of other detailed orders, including in relation to telephone communications, the payment of costs relating to the children’s attendance at private school, exchange of relevant information, arrangements for interstate and overseas holidays and changing the children’s names.
3In relation to financial issues, both Mr Wilson and Ms Wilson agreed that they should each retain their respective assets, liabilities and superannuation entitlements. However, Mr Wilson sought that Ms Wilson pay him such sum necessary to effect a 50/50 division; whereas Ms Wilson sought that Mr Wilson pay her such sum necessary to effect a 60/40 division in her favour. The financial proceedings were complicated by Ms Wilson’s failure to make a full and frank disclosure of some relevant financial events after the parties’ separation.
THE EVIDENCE:
4Mr Wilson was represented by solicitors throughout the proceedings, including at trial. Ms Wilson was represented by solicitors until mid-May 2015. Thereafter, Ms Wilson represented herself in the proceedings, including at trial. However, Ms Wilson sought and was granted leave to have her father act as her McKenzie friend during the trial. Mr Wilson relied upon his trial affidavit and amended financial statement, together with the affidavits of his partner [Ms Robertson], his brother [Mr C] and his cousin [Mr D]. Ms Wilson relied upon her trial affidavit and financial statement, together with the affidavits of Child A’s psychologist [Mr E] and her friends [Ms F] and [Ms G]. In addition, both parties relied upon the report of [Dr H], who was appointed by the court as the single expert in relation to the parenting issues.
5Ms Wilson cross-examined both Mr Wilson and Ms Robertson. Mr Wilson’s counsel cross-examined Ms Wilson. I considered that Mr Wilson was open and frank in giving his evidence. At times Mr Wilson was somewhat vague about the dates that different events occurred, but generally his recollection of events was consistent, logical and ultimately persuasive. I was also satisfied that Mr Wilson attempted to give his evidence in a balanced manner and was prepared to make appropriate concessions against his interests. On the other hand, I considered that Ms Wilson was an unimpressive witness. Firstly I am satisfied that Ms Wilson was not prepared to be open and frank about certain events, for example: (1) the timing of the notice that she gave to Mr Wilson about her holiday to [Country A] with the children in 2015; and (2) her redundancy payment. Secondly, I considered that Ms Wilson’s highly negative attitude towards Mr Wilson and Ms Robertson overwhelmed her ability to give her evidence in a balanced manner. In conclusion, where the evidence of Mr Wilson and Ms Wilson were in dispute, I preferred Mr Wilson’s evidence.
6 I considered that Ms Robertson was open, clear, forthright, balanced and largely unchallenged in giving her evidence. I had no hesitation in accepting her evidence. The remaining witnesses were not required for cross-examination. Accordingly, I accept their evidence.
FACTUAL BACKGROUND – PARENTING MATTERS:
7Mr Wilson was born in July 1969. He is a self-employed [contractor]. Ms Wilson was born in February 1974. She works part time as a [professional]. The parties commenced living together in March 1994 and were married in March 1995.
8Child A was born in June 2002, followed by Child B in December 2004. I am satisfied that both parties were substantially involved in the care of the children. After Child A’s birth, Ms Wilson ceased full time work and was thereafter primarily engaged as a home maker and parent. Mr Wilson worked in his [contracting] business on a part time / casual basis, which also afforded him considerable flexibility in being able to assist with the boys. In 2006 Ms Wilson returned to part time employment. Both parties arranged their work schedules to fit in around the boys. For example, Mr Wilson would take the days off that Ms Wilson was working so that he could care for the boys.
9In or about 2009 Child A started having epilepsy related seizures and was prescribed various medications. Child A suffered various side effects from the medications, including increased anger, depression and negativity. Unfortunately this had a detrimental impact not only on his physical and emotional wellbeing, but also on his educational performance and social relations in and out of school.
10The parties separated under the one roof in November 2011. The parties physically separated in October 2012, upon the sale and settlement of their home in [Suburb A]. The boys then lived in a shared care arrangement: with Ms Wilson for eight nights per fortnight and with Mr Wilson for six nights per fortnight. Mr Wilson was assisted by his mother who also lived with him. The parties lived in relatively close proximity to each other and for the most part were able to cooperatively co-parent the boys.
11In or about February 2013, Mr Wilson commenced a relationship with Ms Robertson, who had three young daughters. Unfortunately, relations between Mr Wilson and Ms Wilson soon soured and the boys (particularly Child A) also took some time to adjust to Ms Robertson and her three daughters being a regular part of Mr Wilson’s life. In June 2013, Mr Wilson told Ms Wilson that he was no longer able to have the boys in his care for six nights a fortnight and that in future, he would simply spend time with the boys each alternate weekend. I accept Mr Wilson’s evidence that at the time, he was having some difficulties in managing the boys’ behaviour in his home. The position was made considerably worse by Ms Wilson’s actions in continually undermining his disciplinary strategies, including by giving the boys a mobile phone and continually maintaining contact with them when they were at Mr Wilson’s home; and encouraging the boys to leave Mr Wilson’s home at times to go to her friend’s home.
12I also accept Mr Wilson’s evidence that within a very short time he regretted his actions and then sought to spend increased time with the boys. Ms Wilson would not agree. The parties attended family dispute resolution counselling, but were still unable to reach an agreement. Mr Wilson then commenced these proceedings in September 2013.
13In November 2013, Ms Wilson arranged for Child A’s general medical practitioner to refer Child A to Mr E for psychological support in relation to “anxiety, low mood, social skills deficits and self-harm in the context of his parent’s separation, Child A’s epilepsy diagnosis, Child A feeling bullied at his primary school and troubles adjusting to his father’s new partner and her children”. Child A and Ms Wilson commenced attending sessions with Mr E on a regular basis. Although Mr Wilson was aware that Child A had a counsellor through his school, I am satisfied that Ms Wilson did not tell Mr Wilson that Child A was seeing Mr E or give Mr Wilson the opportunity to participate in the sessions.
14On 2 December 2013, the court made interim orders for the boys to spend time with each parent on a week about basis during the school holidays, and in addition, at specific times during the Christmas festive period. The parties and their counsel attended an interim hearing in relation to parenting issues on 14 April 2014. Acting Magistrate De Maio delivered her judgment on 30 April 2014 and made interim orders that the boys live with Ms Wilson and continue to spend time with Mr Wilson each alternate weekend during school terms from the conclusion of school on Friday to the start of school on Monday, extending to the start of school on Tuesday in the event of a long weekend.
15On Monday 22 September 2014, Child A became upset at school and self-harmed again by [redacted]. Ms Wilson made urgent arrangements for Child A to speak to his school counsellor and Mr E, but made no attempt to notify Mr Wilson of the situation until she sent him an email at 9:59pm on Wednesday 24 September 2014. I accept Mr Wilson’s evidence that: (1) he only saw the email the following morning; (2) this was the first time Mr Wilson became aware that Child A was seeing a psychologist (as distinct from his school counsellor); (3) Mr Wilson requested to see Child A urgently to speak to him but Ms Wilson refused and instead directed him to talk to Mr E; and (4) Mr Wilson immediately followed up with Mr E.
16Fortunately, Child A’s emotional issues gradually improved. In particular, Child A told Mr E in February 2015 that his relationships with Ms Robertson and her daughters had improved following a family holiday during the Christmas 2014 school holidays, that things were going better at school, he had a group of preferred friends and no further issues around bullying, was feeling positive about starting high school in 2015 and had stopped thinking about cutting himself.
17I am satisfied that on 7 May 2015, without Mr Wilson’s prior consent, Ms Wilson took Child A and Child B to Country A for a holiday for approximately one week. I considered that Ms Wilson’s evidence in relation to the actions she took to notify Mr Wilson of the trip to be inconsistent, evasive and unpersuasive. I am satisfied that Ms Wilson only gave Mr Wilson notice by email that she and the boys were travelling to Country A just prior to their departure at the airport. Mr Wilson immediately tried to phone, text and email Ms Wilson to confirm that he did not consent to the boys being removed from Australia, but did not receive any reply. On 8 May 2015 Mr Wilson’s solicitors wrote to Ms Wilson’s solicitors informing them of Ms Wilson’s notification, confirming that Mr Wilson did not consent to the travel and seeking that the children be returned to Australia. Ms Wilson’s solicitors did not respond and shortly afterwards filed a notice of ceasing to act. Ms Wilson eventually conceded in cross-examination that she made a deliberate decision not to tell Mr Wilson about the trip until the day of their departure, that her actions were wrong and in breach of the s 65Y of the Family Law Act 1975 (Cth) (“the Act”).
18
Child A continued to experience ongoing issues with epilepsy, including absence seizures four or five times a week and ongoing side effects from the medications.
In mid-2015 Child A underwent assessments with a clinical neuropsychologist and a paediatrician in relation to his ongoing epilepsy issues and was recommended for surgery. In November 2015 Child A then underwent brain surgery. To date the surgery appears to have been successful in stopping Child A’s seizures.
19Dr H published his report on 5 May 2016. In summary, Dr H reported that Child A wished to live with each of his parents on a week about basis and that Child B also wished to spend substantially more time with Mr Wilson. The boys also reported that although they initially had difficulties adjusting to Ms Robertson and her daughters, they now enjoyed spending time with them and wanted to see them more often.
PARENTING PROCEEDINGS – APPLICABLE LAW:
20These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 60B sets out the objects and the principles underlying them. The starting point is the application of a presumption pursuant to s 61DA of the Act that it is in the best interests of the children that the children’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[1] In this case Mr Wilson and Ms Wilson agree and I am satisfied that it is in the children’s best interests and reasonably practicable that they have equal shared parental responsibility for the children.
[1] Goode & Goode (2006) FLC 93-286 at [56].
21I must also consider the obligations placed upon me by s 65DAA of the Act which requires me to then consider whether the children should spend equal time or substantial and significant time with each parent. In MRR v GR[2] the High Court of Australia considered the meaning of “reasonably practicable” in s 65DAA(1) and confirmed that the section “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent…[The section] requires a practical assessment of whether equal time parenting is feasible.” In determining the outcome of parenting matters, I must, pursuant to s 60CA of the Act, consider the best interests of the children as the paramount consideration. In determining what is in a child’s best interests I must consider the matters set out in s 60CC of the Act. I now turn to the relevant considerations. If I have not referred to a particular consideration, it is because I consider it is not relevant in this matter.
PRIMARY CONSIDERATIONS:
The benefit to the children of having a meaningful relationship with both of the children’s parents.
[2] MRR v GR(2010) FLC 93-424 at [15].
22Mr Wilson and Ms Wilson both maintained and I am satisfied that there is a real benefit to Child A and Child B in having and maintaining a meaningful relationship with each of their parents.
ADDITIONAL CONSIDERATIONS:
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to children’s views:
23I accept Mr Wilson’s evidence that both boys have consistently told him that they want to spend more time in his care.
24I also accept Dr H’s evidence that Child A told him he wanted to live with each of his parents for 50 per cent of the time. Child B also wanted to spend increased time with Mr Wilson and at one point told Dr H about “3 days a week [with Mr Wilson] and then back to mum’s again”. In his discussions with Dr H, Child B spoke about having more friends around his mother’s home in Suburb E, whereas he only had one friend who lived near his father’s home in Suburb D. Both boys also told Dr H that they liked the equal shared arrangement for school holiday periods and wanted to share that time with Ms Robertson and her daughters.
25I accept Dr H’s evidence that Child A and Child B were nice-natured lads who presented as relatively uninfluenced and as sensible, mature children who were showing good development. In particular, while Child B was younger than Child A, he was probably more similar to the maturity of his older brother. Child A is currently 14 years old and Child B is 11 ½ years old. I accept Dr H’s evidence that by the time each of the boys were 15 years old, they would be mature enough to choose their own living arrangements. Ms Wilson acknowledged in cross-examination that she also accepted that this was the case. Whilst I do not regard either Child A’s or Child B’s views as determinative, I am satisfied that I should give significant weight to the boys’ views in my decision.
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children):
26It was not in dispute and I am satisfied that Child A and Child B both have very close and loving relationships with their parents. It was also not in dispute and I accept that Child A and Child B both have close and loving relationships with their extended paternal and maternal families.
27I accept Dr H’s evidence that the boys described getting on well with Ms Robertson, although Child A acknowledged that he initially struggled to get used to his father having a new partner. Both boys also reported that they initially found it difficult to relate to Ms Robertson’s daughters but have since formed friendships with them and miss them (albeit they still regarded one of the daughters as being ‘annoying’). When Dr H gave the boys the choice of having all school holidays with either just their father or as a group with Ms Robertson and her daughters, both Child A and Child B preferred to spend holidays together as a group.
28It was not in dispute and I am satisfied that Child A and Child B also have a close and loving relationship with each other. Interestingly, in “rating” the relationships with Dr H, Child A gave Child B the same or similar ranking as Ms Robertson’s three daughters. Child B ranked Child A the same as two of Ms Robertson’s daughters, and gave the third daughter a marginally higher ranking.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children:
29I am satisfied that both Mr Wilson and Ms Wilson have taken every opportunity to participate in making decisions about major long term issues relating to the boys, spending time with the boys and communicating with them. Although Mr Wilson told Ms Wilson in June 2013 that he wanted to reduce his time with Child A and Child B, I am satisfied that Mr Wilson acted out of frustration with Ms Wilson’s interference with his parenting of the boys, quickly regretted his decision and then sought Ms Wilson’s consent to revert to the prior arrangements, without success.
30I am also satisfied that at times, Ms Wilson’s very negative attitude towards Mr Wilson after he re-partnered with Ms Robertson led to Ms Wilson limiting Mr Wilson’s ability to participate in decision making about the children. The prime examples of this were Ms Wilson’s failure to consult with Mr Wilson about Child A’s referral to Mr E in November 2013 and her decision not to seek Mr Wilson’s consent in taking the children out of Australia for a holiday in May 2015. As a final example, I am satisfied that Ms Wilson continually made arrangements for the children to attend extra-curricular activities, including during Mr Wilson’s time with the children, without consulting Mr Wilson first. I considered that Ms Wilson’s actions in this regard reflect very poorly upon her.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children:
31In October 2012, the parties set aside the amount of $60,000 from the sale of their Suburb A home in order to pay the children’s future school fees. I deal with this issue more fully later in these reasons.
32In March 2013, Mr Wilson suffered a serious injury to his knee and for approximately the next two years was only able to work minimal hours. He was assessed by the Child Support Agency as having little or no liability to pay child support. Accordingly, the major responsibility for financially supporting the children fell on Ms Wilson. Although Ms Wilson was very critical of Mr Wilson’s failure to financially maintain the children, I am satisfied that both parties fulfilled their obligations in accordance with their respective financial means.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child or other person (including any grandparent or other relative of the child), with whom they have been living:
33I accept Dr H’s evidence that Child A wishes to live with both his parents in a week about arrangement but that Child B appeared to have a more mixed view. Although Dr H did not support both children living in a 50/50 arrangement, primarily because he considered Child B had a somewhat stronger attachment to Ms Wilson, I am not satisfied that Child B would not cope with moving to a 50/50 arrangement, particularly as his primary concerns appeared to revolve around having more friends near his mother’s home, rather than any concerns about being separated from his mother.
34Dr H proposed that the children live primarily with Ms Wilson and for five nights per fortnight with Mr Wilson (being four nights in week one and one night in week two). Ms Wilson was unsupportive of splitting the five nights across the two week period as proposed by Dr H, and maintained that it was in the children’s best interests to spend the time with Mr Wilson in one consecutive block. Dr H also stressed that it was important that there be some flexibility in allowing Child A to have extra time with Mr Wilson on request, and later the same for Child B. However, if I made the orders in the terms recommended by Dr H, I have no confidence that Ms Wilson would be flexible in permitting the boys to spend additional time with Mr Wilson if they requested. In my view, since June 2013 Ms Wilson continually demonstrated a rigid and inflexible approach to the boys spending additional time with Mr Wilson. For example, Ms Wilson conceded that in the past she had refused Mr Wilson’s reasonable requests to spend additional time with the boys and/or simply ignored his communications in this regard. As a further example, Ms Wilson also conceded in cross-examination that she was not prepared to consider increasing the children’s time with Mr Wilson even after the publication of Dr H’s report, notwithstanding both children clearly told Dr H that they wanted to spend more time with their father. Ms Wilson only conceded in her closing submissions that the boys’ time with their father should increase to a consecutive block of five nights per fortnight.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis:
35The parties live in close proximity to each other. I am satisfied that there are no practical difficulties or expense in the boys spending time with and communicating with their parents.
The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs:
36I am satisfied that both parties have the capacity to provide for the boys’ needs. Although Ms Wilson maintained that Mr Wilson did not support a “proactive approach to parenting nor is he intuitive when it comes to the emotional and intellectual needs of the children”, I am not satisfied that these were genuine concerns. Rather I considered that Ms Wilson’s alleged concerns were more a reflection of her own very negative attitude towards Mr Wilson since he has re-partnered with Ms Robertson, and Ms Wilson’s rigid and inflexible approach to parenting issues.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents:
37
I accept Dr H’s evidence that both parties, but particularly Ms Wilson, tended to have a degree of rigidity and lack of flexibility in how they dealt with various issues.
I also accept Dr H’s evidence that the parties’ ongoing “black and white’ views of parenting issues has at times detrimentally impacted on the children. For example, the children have missed out on planned interstate and overseas holidays due to the ongoing conflict and poor working parenting relationship between the parties.
38I am satisfied that Ms Wilson’s negative attitude towards Mr Wilson and Ms Robertson also detrimentally impacted on her ability to communicate effectively with Mr Wilson. To her credit Ms Wilson acknowledged that she could improve her communications with Mr Wilson, including by: (1) responding to his emails and text messages, instead of simply ignoring them; and (2) immediately calling Mr Wilson in the event of emergencies, such as when Child A self-harmed at school in September 2014.
39I am also satisfied that Ms Wilson’s ability to make positive child focused decisions was also detrimentally impacted to some extent by financial considerations. In particular, it appeared at times that Ms Wilson was under the mistaken belief that an order for equal shared parental responsibility meant that the parties were required to equally share financial responsibility for the children. A number of times, Ms Wilson also raised her concern that in the event that Mr Wilson’s time with the children increased, then she may become liable to pay child support to Mr Wilson.
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 children:
40If I made an order in the terms proposed by Dr H, I have considerable concerns that Ms Wilson will take a rigid and inflexible approach to any requests by Child A and Child B to spend additional time with Mr Wilson, which will eventually lead to the institution of further proceedings. In addition, I accept Dr H’s evidence that as Child A matures, he may eventually respond to Ms Wilson’s inflexibility by “voting with his feet” and moving in with Mr Wilson, again potentially triggering further proceedings.
CONCLUSIONS IN RELATION TO PARENTING ISSUES:
41The parties maintained and I accept that the parties should have equal shared parental responsibility for the children. Accordingly, I must also consider whether the children should spend equal time or substantial and significant time with each parent. I am satisfied that it is in the children’s best interests to spend equal time with each parent. I am also satisfied that an equal time arrangement is reasonably practicable. I make these findings, in summary, for the following reasons:
42
Child A and Child B have close and loving relationships with each of their parents and both parents are well able to provide for the children’ needs. The parties live in close proximity to each other and accordingly equal time is clearly practicable. Child A wishes to live equally with each of his parents. Although Child B’s view was mixed, I am not satisfied that Child B would not cope with moving to an equal arrangement, particularly as his primary concerns appeared to revolve around having more friends in Suburb E, rather than any concerns about being separated from Ms Wilson.
If I made an order in the terms proposed by Ms Wilson for the children to live with her and spend five nights a fortnight with Mr Wilson, then I have considerable concerns that she will take a rigid and inflexible approach to any requests by Child A and Child B to spend additional time with Mr Wilson. Not only may this lead to the institution of further proceedings, but it may eventually damage the relationship between Ms Wilson and Child A in particular, by Child A deciding to vote with his feet and move in with Mr Wilson.
43In relation to the Christmas school holidays I am satisfied that extended blocks of time, rather than the week about arrangement, will better facilitate both parties making arrangements to take extended holidays with the children, including to overseas destinations. I am satisfied that the parties should alternate the first and second halves of the holidays, if they cannot otherwise agree. However, I considered that Mr Wilson’s proposal that the holidays be deemed to commence on the last day of school of whichever child commences school holidays first is confusing and likely to lead the parties into further disputes in the future, particularly as Child A is likely to finish the school year much earlier than Child B as he moves through high school. In my view, the Christmas school holidays should be deemed to commence on the last day of school of which ever child finishes school last.
44In relation to the Christmas festive period, Ms Wilson sought a continuation of the interim orders made in December 2013, that is that Mr Wilson spend time with the children from 2pm Christmas Eve until 2pm Christmas Day in even numbered years and from 2pm Christmas Day until 2pm Boxing Day in odd numbered years (and that she spend time with the children during the alternating periods). On the other hand, Mr Wilson sought a reversal of the current arrangements, and also proposed that Ms Wilson should spend three hours less with the children on Christmas Day than he did. Neither Mr Wilson nor Ms Wilson addressed the issue to any great extent during the trial and in particular, Mr Wilson did not provide any explanation as to why the years should be “flipped” or why Ms Wilson should have less time on Christmas Day with the children than he proposed for himself. I prefer the arrangements proposed by Ms Wilson as they are equitable and give the children the opportunity to equally share the Christmas festive period with both parents.
45Ms Wilson sought specific orders in relation to Easter, whereas Mr Wilson did not. Again, neither party addressed the issue to any great extent during the trial. Given the week about arrangements, I am not persuaded that specific orders should be made dealing with Easter, particularly as Easter coincides with the end of term one school holidays in most years.
46Ms Wilson sought specific orders in relation to telephone communications, and in particular, that the children be permitted to have access to their own mobile phone for that purpose. I am satisfied that orders should be made to facilitate the children having reasonable telephone communications with the parties. However, given that Ms Wilson has previously used the children’s access to a mobile phone as a means of undermining Mr Wilson’s parenting of the children, I am not satisfied that orders should be made prescribing that the children must have access to a mobile phone at all times.
47Ms Wilson sought an order that Mr Wilson “commence financial support of the children”. Ms Wilson appeared to be under the mistaken belief that an order for equal shared parental responsibility included an obligation that the parties equally bear the financial costs of the children. The issue of each party’s obligation to financially maintain the children falls under the ambit of the child support legislation. There was no evidence that either Mr Wilson or Ms Wilson had sought an administrative review of their existing child support assessment and there was no child support departure application before the court. In the circumstances, I am not satisfied that I had the ability to make the order as sought by Ms Wilson. Ms Wilson also sought specific orders in relation to the children’s attendance at Kennedy Baptist College from year 7, on the basis that each party be equally responsible for the costs thereof. Neither Mr Wilson nor Ms Wilson addressed the issue of the choice of school to any great extent during the trial, albeit it appeared to be common ground that Child A currently attends the school. I am not persuaded that specific orders in relation to the choice of school are even necessary at this point in time. In 2012 the parties set aside funds to meet the children’s future school fees (which I deal with again later in these reasons). I am not satisfied that it is either just and equitable or proper to make an order requiring the parties to equally pay the children’s educational costs for the following reasons:
a)There was no evidence before the court as to the quantum of the children’s current and future school fees, uniforms, books and other related educational expenses; and
b)There was no evidence as to when the funds set aside by the parties will run out; and
c)In any event, on the basis of the parties’ respective updated financial statements, I was not satisfied that either Mr Wilson or Ms Wilson has the capacity to pay the school fees and other related educational expenses from their respective incomes and/or capital, once the funds that have been set aside run out.
48Ms Wilson sought specific orders in relation to the parties keeping each other informed in relation to relevant medical issues concerning the children. The parties have experienced considerable issues with their communications about the children since 2013. Nevertheless, they maintained that an order for equal shared parental responsibility was in the children’s best interests and reasonably practicable. I am satisfied that it is appropriate to make orders to facilitate the exchange of relevant information, and in addition, for both parties to be able to access information directly from the children’s medical and educational providers. Subject to both parties having liberty to make further submissions in this regard, I propose to make standard orders in relation to the provision of medical and educational information.
49Both parties sought orders in relation to the children’s passports and/or interstate and overseas travel arrangements. I am satisfied that both parties should have the opportunity to take the children on interstate and overseas holidays during their usual time with the children, provided that they give prior written notice to the parties. Subject to both parties have liberty to make further submissions in this regard, I propose to make standard orders in relation to interstate and overseas travel. Both parties sought that they hold the children’s passports. Given Ms Wilson’s actions in May 2015, I am not satisfied that she should hold the children’s passports. It was common ground that Mr Wilson had consented to the children travelling overseas with Ms Wilson on another occasion after separation and did not attempt to disrupt or hinder the travel. I am satisfied that Mr Wilson should hold the children’s passports.
50Ms Wilson sought an order that the children’s middle names be changed by adding her maiden name of “[redacted]”. Neither Mr Wilson nor Ms Wilson addressed the issue at all during the trial. There was little or no evidence as to the children’s views in relation to the proposed change of name, the short and long term effects of the proposed change on the children, including any embarrassment likely to be caused to the children, the impact of the change on the children’s relationship with Mr Wilson and any confusion of identity that might arise to the children if their names were changed or not changed. At the end of the day I was not satisfied that Ms Wilson established to the requisite standard that the change of name was in the children’s best interests. I decline to make such an order.
51Mr Wilson sought an order that Ms Wilson provide him with copies of photographs of the children, previous holidays and their previous homes. Again, the parties gave little, if any, attention to this issue during the trial. I am satisfied that both parties be able to retain copies of family photographs involving the children, their holidays and homes during their relationship. However, I am not satisfied that Ms Wilson should necessarily be put to the sole expense of having to identify and then provide copies of the photographs to Mr Wilson. I propose to give the parties liberty to make further submissions as to how Mr Wilson should select the photographs he seeks to copy, and the mechanism for making the copies.
PROPERTY PROCEEDINGS - LEGAL PRINCIPLES:
52These proceedings are determined pursuant to Part VIII of the Act. I must firstly determine whether it is just and equitable to make an order[3], having regard to the parties’ rights and interests in their existing property.[4] If I so determine, then I must consider the factors set out in the legislation.[5] In this case the parties separated on a final basis in November 2011 and were divorced in May 2016. The parties both sought to sever their financial relationship with each other and both sought finality in relation to the property proceedings. Having regard to the existing interests in property referred to later in these reasons, I am satisfied that it would be just and equitable to make an order by way of alteration of property interests.
[3] Refer to section 79(2) of the Act.
[4] Stanford v Stanford (2012) FLC 93‑518.
[5] Refer to section 79(4) of the Act.
53Parties have a clear obligation to make full and frank disclosure of their financial circumstances in a timely manner and present evidence of their financial position in a clear and understandable form. Failure to do so may entitle the judicial officer to take a “robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position.[6] In this case I consider that Ms Wilson failed to make a full and frank disclosure of her financial position and failed to present evidence of her financial position in a clear and understandable form. For example:
a)Ms Wilson did not disclose her redundancy payment in December 2015 to Mr Wilson. When Mr Wilson’s solicitors specifically asked Ms Wilson to disclose details but mistakenly referred to the wrong company, Ms Wilson used the error to avoid disclosing the information by responding that she had not received a redundancy from the company. However, in my view, Ms Wilson’s duty required her to proactively take steps to provide disclosure of all documents relevant to the issues in the case, not simply to sit back and wait until specific documents were correctly identified and requested. Although Mr Wilson subsequently obtained documents via subpoena evidencing the amount of the redundancy payment, there was little or no disclosure to evidence how Ms Wilson dealt with all the funds.
b)Ms Wilson did not disclose all the statements in relation to the children’s Education Savings Plans, in particular, the statements for the period from 13 January 2014 until 30 June 2014 when substantial withdrawals appeared to have been made from Child A’s account. There was also little or no disclosure to evidence how Ms Wilson dealt with the funds that were withdrawn.
PROPERTY PROCEEDINGS - FACTUAL BACKGROUND:
[6] Fotia & Welsh [2013] FCWA 112 at [96] to [102]; Reichstein & Reichstein (2006) FamCA 1422 at [80]; Chang v Su (2002) FLC 93-117 at [71] – [72].
54In order to give some context to the parties’ existing property pool, I firstly set out the relevant factual background.
55At the commencement of their cohabitation, Mr Wilson owned a motor vehicle and had a half interest in a [redacted]. Ms Wilson owned a motor vehicle. Neither Mr Wilson nor Ms Wilson had any other assets or liabilities of any significance. Initially, Mr Wilson and Ms Wilson both worked full time, Mr Wilson as a [maintenance worker] and Ms Wilson as a [financial worker]. In August 1996, the parties then commenced their own contracting business. Mr Wilson worked in the business on a part time / casual basis, which enabled him to also do considerable work on the parties’ various properties (and later, to assist in the care of the children). Ms Wilson continued to work on a full time basis as a financial worker, but also assisted in the contracting business by doing the bookwork. After Child A’s birth, Ms Wilson ceased full-time work and was primarily engaged as a homemaker and parent, but continued to do the books for the business.
56In 1994, the parties purchased a block of land in [Suburb B] and later built a home on the block. The parties borrowed from Westpac Bank in order to fund the purchase and building costs. In 1995, Ms Wilson’s parents gifted the parties the sum of $7,500 which was used to reduce the mortgage. Mr Wilson made significant improvements to the Suburb B property, including but not limited to clearing and levelling the land, establishing lawns, gardens, putting in a fish pond with a water feature, erecting fences, and building retaining walls, a brick barbeque and a letterbox.
57In 1997, the parties sold the Suburb B property and applied the net proceeds towards the purchase of a block of land in [Suburb C]. They later built a home on the block. Again the parties borrowed from Westpac Bank in order to fund the purchase and building costs. Mr Wilson made significant improvements to the Suburb C property, including but not limited to clearing and levelling the land, establishing lawns, gardens, laying brick paving, putting in a fish pond with a water feature, erecting fences and constructing a gazebo.
58
In 2003, the parties sold the Suburb C property for $360,000 and applied the net proceeds towards the purchase of a 5 acre block of land in Suburb A for $228,000. The parties initially constructed a temporary dwelling (“the Shed”) and moved onto the property in January 2004. Thereafter, they commenced construction of their new home on the property. The parties borrowed from the Commonwealth Bank to fund the purchase and building costs. Mr Wilson also made significant improvements to the Suburb A property, including but not limited to extensive contracting work, assisting in the laying of concrete pads and construction of the Shed, fitting out the Shed with a kitchen, bathroom, bedrooms and a living area as the temporary dwelling for the family, creating an oval for the boys on which to play [sports], creating a
[recreational play area].
59In 2006, Ms Wilson returned to part-time work as an [administrative professional]. In 2006, Ms Wilson’s parents gifted the parties the sum of $4,800 which they applied towards the building costs for the new home and to purchase household contents. The parties eventually moved into the new home in April 2007.
60In 2007, Mr Wilson received an inheritance in the amount of $94,758, which was used to reduce the mortgage on the Suburb A property, to pay off debt from Mr Wilson’s contracting business and take the family on a holiday to [State A].
61In April 2009, the parties closed down the contracting business and purchased a [recreation] business. The parties borrowed $170,000 to fund the purchase of the business and a [redacted]. Mr Wilson worked in the business on a part time / casual basis. Ms Wilson continued to assist in the business by doing the bookwork. In 2010, an employee of the recreation business was injured at work. As a result, the business incurred a Work Cover debt of approximately $23,000. In or about 2011, Mr Wilson obtained full time employment as a [vehicle maintenance worker]. In addition, the parties continued to operate the recreation business on a part time / casual basis.
62During the parties’ relationship, Ms Wilson’s father started a share portfolio to be held in trust for his grandchildren, including Child A and Child B, until they each became adults. The parties contributed $6,000 towards the share portfolio. Over the years, the children’s birthday monies from various maternal family members were also contributed to the share portfolio. Neither Mr Wilson nor Ms Wilson maintained that they owned or controlled the funds invested by Ms Wilson’s father on behalf of Child A and Child B.
63
The parties separated under the one roof in November 2011. In June 2012, Mr Wilson moved from the main residence into the Shed. In October 2012, the parties sold the Suburb A property for $1,257,000. After paying the sale costs, discharging the home loan, and the recreation business loan, the parties disbursed the proceeds
as follows:
a)$60,000 was set aside to meet the children’s future school
fees; and
b)The remaining proceeds were divided equally between the parties. Each party used their share of the net proceeds to purchase a new home: Mr Wilson in [Suburb D] and Ms Wilson
in [Suburb E].
64I accept Mr Wilson’s evidence that he agreed to the $60,000 being set aside to meet the children’s future school fees on the basis that the funds were paid into an account under the joint control of the parties. In addition, both parties agreed to continue making regular deposits into the children’s bank accounts to help meet their future education costs. However, I am satisfied that instead of holding the funds in a joint account, Ms Wilson unilaterally dealt with the $60,000 and the additional deposits by: (1) transferring $20,000 to her father to invest; and (2) transferring approximately $47,000 into two Education Savings Plans which she alone controlled. Ms Wilson conceded in cross examination that she did not consult Mr Wilson or seek his consent prior to dealing with the funds. Ms Wilson’s explanation as to how she and her father dealt with the funds was confused and unsatisfactory for the following reasons:
a)In her opening address, Ms Wilson maintained that only approximately $21,000 remained in the Education Savings Plans as at trial. The statements disclosed by Ms Wilson confirmed that this was the case. In particular, the statements revealed that by January 2016, Child A’s account had been completely depleted. However, in my view, Ms Wilson was unable to account for how she disbursed the funds from Child A’s account. In particular, the statements for Child A’s plan revealed that at 13 January 2014 the investment balance was $22,662. Ms Wilson conceded that she did not disclose any statements for the period from 13 January 2014 to 30 June 2014. However, she did disclose a statement for the period commencing 1 July 2014 which showed an opening balance of $6,034. Ms Wilson did not disclose any documents that would explain the reduction in the account balance of over $16,500. Although Ms Wilson maintained that the funds in Child A’s plan had been used to pay his school fees, at the end of the day, I was left in considerable doubt as to whether this was in fact the case.
b)Ms Wilson also maintained that the $20,000 she had transferred to her father to invest was now worth $47,000. Ms Wilson insisted in cross-examination that she did not know how her father had invested the $20,000 and maintained she had never seen any documents evidencing the investments. However, later in her cross-examination, Ms Wilson maintained that the increase in the value of the investment was largely due to her adding approximately $26,000 to the investment from her redundancy payment. In my view, Ms Wilson could have clarified the issue by having her father file an affidavit in the proceedings or asking him to provide her with the relevant documents so that she could disclose them, but she chose not to. Mr Wilson’s attempts to clarify the situation by issuing a subpoena to produce documents to Ms Wilson’s father also proved fruitless.
65
In or about March 2013, Mr Wilson injured his knee whilst at Ms Robertson’s [rural lot]. He was unable to work to any significant extent for the next two years.
In October 2014 Mr Wilson had an operation on his knee. In November 2014, Mr Wilson sold the recreation business, including the [redacted] and all the business equipment, for $40,000. I accept Mr Wilson’s evidence that he used all the proceeds of sale to pay off the Work Cover debt and other business debts and that he kept Ms Wilson informed in writing of his actions. In or about March 2015 Mr Wilson had sufficiently recovered from his surgery to return to his full time employment as a vehicle maintenance worker. However, in March 2015, Mr Wilson’s employer then terminated his employment. Subsequently, Mr Wilson started work as a self-employed contractor.
66
In December 2015, Ms Wilson was made redundant from her employment.
She commenced employment with her current employer in or about February 2016.
In April 2016, Mr Wilson’s solicitors wrote to Ms Wilson seeking disclosure in relation to her redundancy payment from [Company A]. Ms Wilson responded in writing that she did not receive a redundancy payment from the company.
Whilst technically correct (as the company had recently been taken over by another entity which continued Ms Wilson’s employment), Ms Wilson failed to disclose any details of the redundancy that she did receive and failed to disclose relevant documents evidencing the redundancy payment. The information only came to light when Mr Wilson issued a subpoena to Ms Wilson’s former employer to produce the relevant documents. The subpoenaed documents revealed that Ms Wilson received a redundancy payment of $48,595, net of tax. Ms Wilson’s final pay slip and redundancy calculation document revealed that Ms Wilson’s redundancy payment was made up of salary owing on termination, unused leave entitlements and a redundancy payment of 16 weeks, based on Ms Wilson having commenced employment on 5 July 2006 and having completed nine years of service.
67
Ms Wilson’s evidence in cross-examination about how she dealt with the redundancy payment was confused and unclear. She conceded that she arranged for her redundancy payment to be paid directly into her father’s bank account and that he then made monthly payments back to her. Ms Wilson’s bank statements revealed that her father transferred the amount of $5,138 into her account in each of December 2015,
January 2016 and February 2016. Ms Wilson conceded that the February 2016 transaction record that the payment was a “loan” from her father was not correct and that the funds in fact came from her redundancy payment. Although Ms Wilson initially maintained that her father also transferred a further amount to her in March 2016, there was no such deposit recorded in her bank statements. Ms Wilson also maintained that she spent $10,000 to $12,000 on renovations to her kitchen. However, Ms Wilson conceded that she had not disclosed any documents in relation to the renovations and that she gave all the invoices to her father for him to pay direct. Ms Wilson maintained that the remainder of the redundancy payment was being held by her father to meet the children’s future school fees. Initially she maintained that this was $26,000 but then later maintained that the amount was in the “low twenties”. Again, Ms Wilson did not disclose any documents evidencing what precise amounts her father held on her behalf or how the funds had been invested.[7]
EXISTING INTERESTS IN PROPERTY:
[7] Towards the end of the trial, Ms Wilson sought to rely on a document prepared by her father setting out details of the funds he held on her behalf. I was satisfied that I should not accept the document, given that Ms Wilson had elected at the commencement of the trial not to call her father as a witness and instead sought that he be her McKenzie friend.
68I am satisfied that the property pool of the parties is as follows:
| Item | Ms Wilson’s assets and superannuation | $ Amount |
| 1 | Suburb E property | $540,000.00 |
| 2 | CBA account [redacted] | $1,403.00 |
| 3 | CBA account [redacted] | $18.00 |
| 4 | 2009 Mazda motor vehicle | $0.00 |
| 5 | Commodore motor vehicle | $26,000.00 |
| 6 | Household contents | $5,000.00 |
| 7 | Children’s education fund and investment fund | $0.00 |
| 8 | Redundancy payment | $0.00 |
| 9 | Paid legal fees | $0.00 |
| 10 | Ms Wilson's superannuation | $106,345.00 |
| Ms Wilson's liabilities | $ Amount | |
| 11 | Suburb E mortgage | -$245,891.00 |
| 12 | Credit card debts | $0.00 |
| 13 | Debt to Ms Wilson's father | $0.00 |
| Mr Wilson's assets and superannuation | $ Amount | |
| 14 | Suburb D property | $550,000.00 |
| 15 | CBA account [redacted] | $205.00 |
| 16 | Toyota motor vehicle | $16,000.00 |
| 17 | Boxtop trailer | $1,000.00 |
| 18 | Household contents | $5,000.00 |
| 19 | Tools of trade | $6,000.00 |
| 20 | [redacted] and recreation equipment | $0.00 |
| 21 | Paid legal fees | $0.00 |
| 22 | Mr Wilson's superannuation | $56,405.00 |
| Mr Wilson's liabilities | $ Amount | |
| 23 | Suburb D mortgage | -$282,949.00 |
| 24 | Loan from Ms Robertson | $0.00 |
| 25 | Credit card debts | $0.00 |
| 26 | Centrelink debt | $0.00 |
| TOTAL | $784,536.00 |
69I make the following comments in relation to the table:
a)Items 1, 5, 14 and 19: The parties agreed these items.
b)Items 2, 3, 11, 15 and 23: The parties did not agree the current balances of their respective bank accounts and mortgages over their respective homes. Neither Mr Wilson nor Ms Wilson sought to specifically cross-examine the other about the issue or tendered statements to verify the current balances. I have proceeded on the basis of accepting each party’s admission as to the current balance of their respective mortgage and savings accounts.
c)Item 4: Mr Wilson maintained that the Mazda motor vehicle should be included in the property pool at a value of $22,000. I do not agree for the following reasons: Firstly, Ms Wilson only disclosed that she sold the Mazda motor vehicle to her father during her cross-examination. She did not disclose any documents in relation to the transaction, including documents that may have validated the amount she claimed she was paid by her father. However, I am satisfied that Ms Wilson most likely used the sale proceeds towards purchase her existing motor vehicle (which was included in the property pool). To also include the Mazda in the property pool would, in effect, double count its value. Secondly, there was no evidence to suggest that the Mazda was worth $22,000 at the time of its disposal.
d)Items 6, 16, 17 and 18: The parties did not agree the current values of their respective household contents or Mr Wilson’s motor vehicle and trailer. There was no suggestion that either party had sought a valuation of the items and little attention was given to the issue during the course of the trial. I have proceeded on the basis of accepting Ms Wilson’s admission in relation to the value of her household contents and accepting Mr Wilson’s admissions in relation to the value of his household contents, motor vehicle and trailer.[8]
[8] Khademollah & Khademollah (2000) FLC 93-050 at [32]; Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117 at [92].
e)Item 7: In her closing submissions Ms Wilson conceded that the total current value of the funds set aside for the children’s future education was $67,000. Ms Wilson also conceded in cross-examination that although most of the funds were held by her father, he would return them to her if she requested. Mr Wilson’s counsel maintained in closing submissions that either: (1) the funds should be added back into the property pool and credited as a distribution to Ms Wilson; or (2) the funds should not be included in the property pool, but that Ms Wilson should pay the funds into a joint account under the control of both parties to meet the children’s future school fees (as originally intended by them). I am satisfied that the parties originally agreed to set aside funds for the boys’ future education. I am satisfied that Ms Wilson should be required to pay the sum of $67,000 into a joint account, under the control of both parties, for the purposes of meeting the children’s future school fees. Accordingly, I am satisfied that the funds should be excluded from the property pool on this basis.
f)During the trial, Mr Wilson appeared to maintain that the funds invested by Ms Wilson’s father in shares for the benefit of Child A and Child B should also be included in the property pool. However, it was not a matter which was pursued during closing submissions. Ms Wilson conceded during the trial that the total current value of the boys’ interest in this investment was approximately $21,000. Aside from the amount of $6,000 directly contributed by the parties during their relationship, various extended maternal family members also contributed substantial funds to the investment. There was no evidence to suggest that the parties owned or controlled the investment, or treated the investment as being their property. At the end of the day, I am not satisfied that Mr Wilson established to the requisite standard that the investment forms part of the property pool of the parties.
g)Item 8: Mr Wilson maintained that the full amount of Ms Wilson’s redundancy payment should be added back into the property pool. I do not agree. Leaving aside Ms Wilson’s confused evidence that part of the redundancy payment was now represented in the children’s future education fund held by her father, there was no evidence to suggest that the remaining funds still existed. I am not satisfied it is just and equitable to add back the redundancy into the property pool.
h)Items 9 and 21: Both parties spent considerable amounts on litigation costs. Mr Wilson’s costs were nearly double that of Ms Wilson’s. Mr Wilson maintained that both parties’ litigation costs should be added back into the property pool. I do not agree. There was no suggestion that the parties paid their litigation from assets or savings existing at the time of separation. Mr Wilson’s position was that he had borrowed money from Ms Robertson to pay his litigation costs. Ms Wilson’s position was that she had paid her litigation costs partially from drawing down on her mortgage and borrowings from her father and partially from the funds deposited into her bank account, including from her earnings after separation. If I was to add back both parties’ litigation costs, then the effect of doing so would in reality mean that Ms Wilson was partially subsidizing Mr Wilson’s costs. If costs are in issue, then they can be more appropriately dealt with by way of a separate application for costs.
i)Items 10 and 22: The parties did not agree the current values of their respective superannuation entitlements. I accept Mr Wilson’s evidence that his superannuation entitlements were valued at $56,405. Although Ms Wilson maintained that the value was $50 greater, she did not cross-examine Mr Wilson on the issue. Ms Wilson did not provide an up to date statement of her superannuation entitlements and at the conclusion of the trial, I made an order requiring Ms Wilson to do so. Ms Wilson subsequently filed a printout of an online statement for her account as at 3 July 2016 showing that her account balance was $106,344.96. I have accordingly adopted the amount of $106,345 for the purposes of the table.
j)Items 11, 25 and 26: Both parties had credit card liabilities at the time of the trial. Mr Wilson conceded that he had no significant credit card debt at separation and the current liabilities were all incurred post separation. Mr Wilson also conceded that his Centrelink debt arose as a result of an overpayment after he injured his knee. There was little or no evidence as to Ms Wilson’s position at separation, when she incurred the existing credit card liabilities or for what purposes. Given that the parties have been separated since November 2011 and informally disentangled much of their joint finances in October 2012, I am not satisfied that it is just and equitable to include these liabilities in the parties’ property pool.
k)Item 13: In her closing submissions Ms Wilson raised for the first time that she owed her father $16,000. She did not disclose the existence of the alleged liability in her affidavits, financial statements or her schedule of assets and liabilities filed with her Papers for the Judicial Officer. She did not disclose any documents evidencing the alleged loan and chose not to have her father file an affidavit himself. In the circumstances, I was not satisfied that Ms Wilson established to the requisite standard that the liability existed or that it was just and equitable to include the liability in the property pool.
l)Item 20: Ms Wilson sought that the proceeds of sale of the recreation business, [redacted] and related equipment be added back into the property pool. I do not agree. I am satisfied that Mr Wilson fully disbursed the proceeds to pay joint liabilities, in particular, the remaining business debts.
m)Item 24: Mr Wilson sought that his debt to Ms Robertson should be included in the property pool. I do not agree. Mr Wilson readily acknowledged that the liability was incurred by him after separation to enable him to pay his litigation costs and assist him to meet his living costs, particularly after he injured his knee and was unable to work. I am not satisfied that it is just and equitable that Ms Wilson should be expected to bear a proportion of
this liability.
SECTION 79(4) (a), (b) (c):
70Ms Wilson submitted that contributions should be assessed as to 60% to her and 40% to Mr Wilson. In particular, Ms Wilson submitted that she should be given additional credit for being the main income earner and the primary home maker and parent to the family. I accept that Ms Wilson made a substantial contribution during the marriage including in these areas. I also accept that Ms Wilson made a substantial contribution after separation, in particular by assuming the major financial responsibility for the children after Mr Wilson injured his knee and the primary care of the children after June 2013. Ms Wilson also received a substantial redundancy payment after separation. However, given Ms Wilson’s lack of frankness about the payment and the paucity of reliable evidence as to how she dealt with all the proceeds, I am not satisfied that Ms Wilson established to the requisite standard that she should be given any additional credit in this regard in my assessment of contributions.
71In my view, Ms Wilson’s submission failed to adequately take into account that Mr Wilson also made substantial contributions, including but not limited to:
a)Working throughout the parties’ relationship and contributing his earnings to the acquisition, conservation and improvement of the parties’ property and to the welfare of the family generally;
b)Late in the parties’ marriage, receiving an inheritance of $94,758, which was used to reduce the mortgage on the Suburb A property, to pay off debt from the contracting business and take the family on a holiday to State A;
c)Doing significant amounts of landscaping and building work that substantially improved the Suburb B, Suburb C and
Suburb A properties;
d)Substantially assisting in the homemaking duties, in particular by assuming the major responsibility for the “outside” chores, such as gardening and general maintenance, as well as assisting to some extent with the “inside” chores;
e)Substantially assisting in the care of the children, in particular by rearranging his work hours to accommodate Ms Wilson’s work hours so that he could care for the children.
72In balancing the various contributions of the parties in their respective spheres I am satisfied that the parties’ contributions should be assessed as being equal.
SECTION 79(4)(e) – (SECTION 75(2) FACTORS):
73
I will now consider the relevant factors as required by the legislation. If I have not referred to factor, it is because I take the view it is not relevant in this case.
Ms Wilson maintained that the court should make whatever adjustment to her was necessary to enable her to receive 60% of the net property of the parties. On the other hand, Mr Wilson maintained and I agree that no further adjustment for s 75(2) factors
was warranted.
74Mr Wilson is 47 years old and Ms Wilson is 42 years old. Both parties are in good health. I have already dealt with the property and financial resources of the parties earlier in these reasons. In the past Mr Wilson has worked in various fields, including as a maintenance worker, contractor and vehicle maintenance worker. Since recuperating from his knee injury, Mr Wilson has commenced his own business as a contractor and currently earns a modest income. Mr Wilson maintained that his business is slowly starting to build up. In my view, Mr Wilson has the capacity over time to build up his business and/or seek other employment in his fields of experience that will enable him to earn a reasonable income. Ms Wilson has work qualifications and experience as a professional. Historically she earned a reasonable income in excess of $80,000 per annum. She currently works between 24 and 26 hours per week, and earns approximately $50,500 per annum. In addition, Ms Wilson maintained that she does some professional services for other third party friends and clients for little or no remuneration. In my view, Ms Wilson has the option to cease doing this “free” work and instead obtain additional paid employment and/or clients in order generate a reasonable income.
75Pursuant to the orders I intend to make the boys will live equally with the parties. The parties’ commitments are as set out in their respective financial statements. Both parties have an obligation to support Child A and Child B. Ms Wilson receives some Centrelink benefits in relation to the children. These entitlements are likely to change somewhat with the children’s changed living arrangements. Mr Wilson conceded that pursuant to child support assessments, he does not currently pay child support as a consequence of his knee injury and very modest income since he commenced his new business as a contractor. There was no evidence before the court as to each party’s future liability for child support given that the children will live equally with both parties.
76Mr Wilson’s mother resides with Mr Wilson. Although she receives a Centrelink payment and contributes to her living costs, I accept Mr Wilson’s evidence that he subsidises her living costs to a minor extent. Neither Mr Wilson nor Ms Wilson has any obligation to financially support any other person. Ms Wilson has not re-partnered since separation. Mr Wilson has re-partnered with Ms Robertson since separation, however they do not live together and maintain separate residences. Ms Robertson has provided Mr Wilson with some financial assistance, in particular by lending him significant amounts in order to pay his litigation costs and to meet living expenses, particularly during the period when he was unable to work due to his knee injury. Ms Wilson maintained that Mr Wilson received “non-taxable income” from Ms Robertson and that Ms Robertson would be a significant financial resource to Mr Wilson in the future. However, there was simply no cogent evidence that either was the case.
77
The parties lived together from approximately March 1994 until June 2012.
I am satisfied that the duration of the relationship had no significant impact on the earning capacity of either party.
SECTION 79(4)(d),(f) & (g) FACTORS:
78The orders proposed by Mr Wilson and Ms Wilson have no impact on the earning capacity of either party. I have already dealt with the remaining factors, in so far as they are relevant.
PROPERTY PROCEEDINGS – DISCUSSION AND CONCLUSIONS:
79I intend to order that the property of the parties be divided equally. The parties agree that they will each retain their respective assets, liabilities and superannuation entitlements. In order to effect a 50/50 division, Ms Wilson will be required to pay Mr Wilson the sum of $40,607, which I intend to round down to $40,600. In addition, Ms Wilson will be required to re-pay the sum of $67,000 into a joint account in the names of her-self and Mr Wilson, in order to meet the children’s ongoing school fees.
80Pursuant to the orders I intend to make, Ms Wilson will continue to own her home in Suburb E, subject to the mortgage, her motor vehicle, savings, household contents and superannuation entitlements. She will have an additional liability to pay $40,600 to Mr Wilson, and in addition, will have some credit card liabilities. Mr Wilson will also continue to own his own home in Suburb D, subject to the mortgage, his savings, motor vehicle, household contents, trailer, tools and superannuation entitlements. He will receive the cash amount of $40,600 from Ms Wilson, but will still have a significant debt to Ms Robertson, as well as some other minor liabilities. In the circumstances, I am satisfied that the proposed financial division is just and equitable and otherwise proper.
ORDERS:
81I propose to issue these reasons from chambers in order to give the parties an opportunity to consider them and my proposed orders. I propose to make the following orders:
1.All previous parenting orders in relation to the children, CHILD A born 26 June 2002 and CHILD B born 23 December 2004 (“the children”) be discharged.
2.The applicant father, MR WILSON, and the respondent mother, MS WILSON, have equal shared parental responsibility for the children.
3.The children live equally with each of the parties on a week about basis with changeover to occur at the children’s school(s) at the commencement of school on Mondays, and in the event that the Monday is a non-school day, then at 5pm.
4.If the children are not already in the care of the father pursuant to paragraph 3, then the mother’s time with the children pursuant to paragraph 3 be suspended and the children spend time with the father as follows:
a)For one half of the Christmas school holidays each year as agreed between the parties in writing and failing agreement, for the first half of the Christmas school holidays in even numbered years and for the second half of the Christmas school holidays in odd numbered years.
b)From 2pm Christmas Eve until 2pm Christmas Day in even numbered years; and from 2pm Christmas Day until 2pm Boxing Day in odd numbered years.
c)On Father’s Day each year from 5pm on the day before Father’s Day until the commencement of school the Monday after Father’s Day.
d)On the each of the children’s birthdays each year from the conclusion of school until 8pm if a school day; and if a non-school day, then from 2pm until the commencement of school the following day, or 10am if a non-school day.
e)On the father’s birthday each year from the conclusion of school until 8pm if a school day; and if a non-school day, then from 2pm until the commencement of school the following day, or 10am if a non-school day.
5.If the children are not already in the care of the mother pursuant to paragraph 3, then the father’s time with the children pursuant to paragraph 3 be suspended and the children spend time with the mother as follows:
a)For one half of the Christmas school holidays each year as agreed between the parties in writing and failing agreement, for the first half of the Christmas school holidays in odd numbered years and for the second half of the Christmas school holidays in even numbered years.
b)From 2pm Christmas Eve until 2pm Christmas Day in odd numbered years; and from 2pm Christmas Day until 2pm Boxing Day in even numbered years.
c)On Mother’s Day each year from 5pm on the day before Mother’s Day until the commencement of school the Monday after Mother’s Day.
d)On the each of the children’s birthdays each year from the conclusion of school until 8pm if a school day; and if a non-school day, then from 2pm until the commencement of school the following day, or 10am if a non-school day.
e)On the mother’s birthday each year from the conclusion of school until 8pm if a school day; and if a non-school day, then from 2pm until the commencement of school the following day, or 10am if a non-school day.
6.For the purposes of these orders “the Christmas school holidays” shall be deemed to commence on the conclusion of school on the last day of school of which ever child finishes school last in the relevant year.
7.Handovers that do not take place at the children’s school(s) in accordance with these orders shall take place as agreed between the parties in writing and failing agreement the party who is taking the children into his/her care do collect the children from the other party’s residence.
8.Each party have reasonable telephone and/or other electronic communications with the children when the children are in the care of the other party.
9.Each party shall provide the other party with notice of any significant medical issues concerning the children including details of any treating practitioner and if requested to do so by the other party, shall authorise any treating practitioner to discuss the children’s medical issues with that party.
10.Each party be permitted to attend any school events or activities that parents would ordinarily be expected and invited to attend including but not limited to school assemblies, parent / teacher evenings and school carnivals.
11.Each party be permitted to contact the school that the children attend to provide them with copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions, parent / teacher nights and other school activities to which parents would ordinarily be expected and invited to attend.
12.The Applicant and the Respondent have liberty to travel with the said children interstate and outside the Commonwealth of Australia for the purpose of holidays provided that:
a)the travelling party give the non-travelling party not less than one month’s written notice of his or her intention to travel;
b)not later than 14 days prior to departure, the travelling party provide the non-travelling party with a copy of:
i) the proposed travel itinerary; and
ii)contact details for the said children being the address where they will be primarily staying for the duration of the said holiday together with a telephone contact number;
and the travelling party keep the non-travelling party informed of any changes to these arrangements; and
c)there is not a current “Do not Travel” warning issued by the Department of Foreign Affairs and Trade at the time of departure in relation to the proposed destination.
13.The Applicant hold the children’s passports and cause the said passports to be released to the Respondent 14 days prior to her travelling with the children, and the Respondent return the passports to the Applicant within 7 days of the children’s return.
14.Within 60 days of these orders being made the mother do pay the sum of $67,000 into an account in the joint names of the parties (and on the basis that both parties’ consent is required to conduct transactions on the account).
15.All the right, title and interest of the Respondent in the following vest in the Applicant absolutely:
a) Any real estate registered in the name of the Respondent;
b)Any motor vehicle registered in the Applicant’s name and in his possession;
c)All household furniture, chattels and personal items in the possession of the Applicant;
d)Any funds held by the Applicant in any bank, building society, credit union or other financial institution; and
e) Any superannuation or employment entitlements.
16.That all right, title and interest of the Applicant in the following rest in the Respondent absolutely:
a) Any real estate registered in the Respondent’s name;
b)Any motor vehicle registered in the Respondent’s name and in her possession;
c)All household furniture, chattels and personal items in the possession of the Respondent;
d)Any funds held by the Respondent in any bank, building society, credit union or other financial institution; and
e) Any superannuation or employment entitlements.
17.The Applicant indemnify the Respondent in respect of and assume sole liability for any liability in the Applicant’s name.
18.The Respondent indemnify the Applicant in respect of and assume sole liability for any liability in the Respondent’s name.
19.Within 60 days of these orders being made, the Respondent pay the Applicant the sum of $40,600.
20.That unless otherwise specified in these orders:
a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the condition for payment out of such entitlements;
b)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.
21.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
22.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers Magistrate Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Magistrate Sutherland to arrange the collection of their exhibits;
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
23.In the event of an appeal being lodged prior to the expiration period of 42 days, the above paragraphs do not apply.
24.The matter be removed from the Judge’s Defended List.
25.All outstanding proceedings otherwise be dismissed.
I certify that the preceding [81] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Secretary
17 August 2016
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