Small property pool superannuation split

Belmont & Kilpatrick

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

2. This is a property and parenting matter. The husband is 46 years old. The wife is 42 years old. The husband works as an (occupation omitted) and the mother is presently unemployed, having lost her job recently. The two children involved are X, who is 13 years old, and Y, who is 11 years old. Both children live with the mother and spend time with the father. The present arrangements for time are that the children spend five nights a fortnight with the father: Friday, Saturday and Sunday in alternate weekends, and also one night, each Wednesday night, during the week.
3. I will deal with the property issues first. As I mentioned, the husband is an (occupation omitted). I notice that his most recent financial statement says he earns $500 a week, whereas his financial statement filed in October 2015 had him earning $1,700 a week. The discrepancy is unexplained. There are certainly no payslips in evidence from the husband. The parties began to live together in 1998. There were no significant assets owned by either of them at that stage. The husband asserts that he had a superannuation interest of about $20,000 at that time but there was no evidence that that was the case.
4. The first evidence of superannuation is in about 2005 when the husband’s interests were in the region of $50,000. The husband did a calculation, assuming compound interest of 10 per cent a year and, working backwards, he got to a figure of $20,000. That figure may be right. It may not. It is entirely dependent upon the assumptions put into the equation and I am not in a position to know whether the assumptions are correct and neither is he. So there is simply no evidence about that.
5. The parties suffered severe financial difficulties during their marriage and both were declared bankrupt in 2004 and discharged in 2007. While I have not mentioned it in detail, there is some evidence in the affidavits that there was a property owned by the husband at an earlier point, which had been sold, and another property purchased. As I read the affidavit material, any interests in that property or any interests stemming from that property, or those properties, was consumed in the bankruptcy, as it were. So, apart from the superannuation interests, these parties started afresh once their bankruptcies were discharged.
6. In 2012, the parties purchased a matrimonial home for $230,000. Some $22,000 of this was contributed by the husband’s father, used as to $11,500 for a 5 per cent deposit and $11,500 for stamp duty. The balance of the purchase price was jointly borrowed by the parties. The parties separated in 2014, that is, after a relationship of about 16 years. The former matrimonial home was sold in 2015 for $235,000: in other words, for a very slight capital gain. The net proceeds were only some $6,586 and I understand that the proceeds are still held, by agreement, in a trust account – I assume a conveyancer’s trust account but I could be wrong about that.
7. There are some other assets in the hands of the parties. The wife has a horse, a horse float and some associated equipment. There was no valuation provided on that equipment but she conceded in cross-examination, it could be worth in the region of $4,500 to $5,500. The wife also asserted that the husband retained various chattels, including sporting equipment, diving and water ski equipment and some tools, second-hand computers, and the like. He did not deny that but, again, offered no valuations. The wife also asserted that the husband retained possession of some chattels after the separation because he remained in occupation of the former matrimonial home. Again, there are no valuations but I do conclude that the chattels of various kinds remaining in the husband’s hands are not of insignificant value, although I cannot place any specific value on them.
8. The post-separation contributions of the parties are of some significance. The husband asserts that he continued to make contributions to his superannuation fund. It had been “funds”, plural, at one point, but he has rolled over his superannuation interests into a single (omitted) fund. He says that his employer contributes 20% of his salary to superannuation. Again, I was not shown any particular evidence about that but I have no reason to doubt what he says. The husband also asserts that he used money that he had inherited from his father to settle joint matrimonial debts post-separation, something that was not conceded by the wife.
9. He says he paid $29,000 to settle debts by selling a car he purchased using the inherited funds, some $15,700 of which was a (omitted) Mastercard credit card debt in the husband’s name. The nature of the indebtedness was not explained in his affidavit material. The balance of the money was for utilities, electricity charges and so on. The husband’s expenditure on these amounts was not explained in any detail. The wife did not cross-examine him in any detail about that and, while I am far from satisfied of the details of the debts, I am satisfied that, in broad terms that should be seen as a post-separation contribution. The settlement of that debt, or debts, having its source in the father’s inheritance should be seen as a financial contribution post-separation by him.
10. The wife has also, it appears, made post-separation contributions. She has continued to care for two children. She receives, apparently, child support of some $163 a week from the father which is a relatively modest amount and would, I think, probably fall short of the real cost of maintaining these children particularly as I note that X, the eldest child, has at various times required specialist treatment for a speech disability. So while I am satisfied that the husband has made post-separation financial contributions, the wife has also made post-separation non-financial contributions and I am not satisfied that there ought to be any particular adjustment in the husband’s favour as a result.
11. The property pool at trial was as follows. There was the trust money from the sale of the matrimonial home, which I have mentioned, in the sum of about $6,586, the wife’s horse and associated equipment, having a value of $4,500 to $5,500, and the tools, equipment and various other chattels in the possession of the husband of unknown value. I think, generally, the contributions to the acquisition of those items should be seen as equal. The other property interest is superannuation. Indeed, it is the only other property interest. The husband’s superannuation interest is some $107,000. The wife has two superannuation funds of much smaller amounts, $4,178 and $1,904. On my calculation, the total superannuation interest of the parties amounts to $113,756.
12. The financial contributions of the husband, particularly the contribution to the superannuation, outweigh the wife’s probably in the order of 58 per cent to 42 per cent. However, financial contributions are not the only thing and there are non-financial contributions, including as a homemaker and mother, which have to be taken into account as well. Both of these parties have worked during the relationship. Both have apparently studied at different times. The husband studied for some eight years. Taking into account both financial and non-financial contributions, I consider that the overall contributions of the parties to the entirety of the assets and of the superannuation is 52.5 percent to the husband and 47.5 per cent to the wife.
13. Turning to section 75(2) factors, the husband is a (occupation omitted) and is employed, as I mentioned, at a (employer omitted). The wife, as I mentioned, is now unemployed. She had been working, (employment omitted) but lost her job recently. She has completed a (omitted) degree. She has completed the practical training for that degree. She told me, from the bar table, that she had had two interviews for a job but not been successful in either of them. She is presently enrolled in a (omitted) degree in (studies omitted) and she told me, again from the bar table, that perhaps that was more in line with her interests.
14. On my assessment, the husband even allowing for the vicissitudes that (occupations omitted) suffer in Australia in forging a career, is likely to be employed for most of his working life. He has some very specialised and high quality skills and I see no reason why he would not be employed here, or elsewhere, should he wish. I am not satisfied that that is necessarily the case with the wife. Her employment history is one that does not appear to give an indication that future employment, particularly at a professional level, is necessarily assured for her. I hope, for her sake, that it is, but it appears that she may have some periods of unemployment. I think, because she is going to retain the primary care of the children for the foreseeable future, I think some adjustment is required in her favour, and I propose to make an adjustment of 2.5 per cent in her favour.
15. So the conclusion I reach is that the assets and superannuation ought to be split fifty-fifty between these parties. The result of that is, given that the wife has some superannuation already in her hand, or already has an entitlement to superannuation of some $6,000, I propose to make a splitting order on the husband’s superannuation interest of 45 per cent, to the wife. That will be subject to procedural fairness being given to the (omitted) fund. The wife will have to do what is necessary to serve the Fund with the orders I will make.
16. Turning to the children, there is a long-standing and hostile relationship between the parents in this case. As I mentioned, the children are presently spending three nights in alternate weekends and each Wednesday night with the father. The father seeks that they spend equal time. The mother seeks an order that the arrangements be three nights a fortnight: Friday, Saturday, Sunday night, in alternate weekends.
17. At present, the children travel to the father’s home by bus. I understand that much, if not all, of the time, they take the bus from school and they travel by bus back to school which is a few kilometres on each occasion. The mother does not know where the father lives, and the mother does not know where the children are or at least does not know the father’s address during their time with him. I suppose it would be easy enough to find out, if she were really interested, but she appears to be willing to let that situation remain. I do not know whether the children have mobile phones, for example, to be able to contact the mother if need be.
18. There has, historically, been a rather difficult relationship between the children and the father. That is clear from the both the family report and the 11F memorandum that was produced in May 2016. It is also clear from the family report that both children resent the Wednesday night time with their father and in both the 11F memorandum and the family report, which was published in September 2016, some four months later, the children take a consistent line. In the case of X, the family report recorded that he was adamantly opposed to spending Wednesday nights with the father. He, in fact, wanted to spend one night a fortnight and, at the time of the 11F memorandum, he wanted to spend one weekend in three with the father.
19. Y, on the other hand, who is also opposed to spending Wednesday night with the father but was content to spend three nights on alternate weekends with him. So the children have different views about the time they want to spend with the father. Given their ages – X is 13, Y is 11 – significant weight has to be given to their wishes. Of course, their wishes are not necessarily determinative and I do not treat them as determinative in this case. However, as the family report writer recorded, forcing, in effect, X to continue to spend Wednesday nights with his father when he is adamantly opposed to that course, risks placing pressure on X and, as the family report writer also recorded, risks undermining what the family report writer considered was an already fragile relationship between X and his father.
20. Given the consistent concerns raised by the family report writer in the family report and in the 11F memorandum it is somewhat surprising that the father has persisted with his application for equal time. It is obvious that it is not something the children want. It is obvious that, in the case of X, it would run the risk of permanently undermining the fragile relationship that X has with his father. The father says things have improved. That may be. They would need to improve from what was a pretty poor base-level. I am far from satisfied that it is in the best interests of these children that they should be obliged, against their wishes, to spend Wednesday nights with their father.
21. The matters that I am obliged to take into account in determining under section 60CC of the Family Law Act 1975 what is in a child’s best interests are primarily:
    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents, and

(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

22. In my view, the best way of maintaining a meaningful relationship between the children and their father is not to place undue pressure on that relationship and I think there is a very real risk that that will occur if the present Wednesday night arrangements continue.
23. As I said to the father, if the relationship with X, in particular, is improving to the extent that he believes it is, ultimately, he is going to have to rely on X wanting to spend time with him. With a 13-year-old child, the prospect of obliging that child to spend time with a parent, by way of court orders, cannot be attractive to any parent with any degree of insight at all. The relevance of (b) is, fortunately, in this case, limited to non-existent. The other matters that I have to consider in section 60CC(3), and I will only deal with the most relevant, are:

(a) any views expressed by the child

24. I have referred to the views expressed by both children.

(b) the nature of the relationship of the child with each of the child’s parents and any other persons

25. The most relevant, here, is the relationship between the children and their parents.
26. As is clear from the observations of the author of the family report, the children have a very warm and comfortable relationship with their mother. Their relationship with their father was, in the observation, much more subdued and reserved, consistent with the general concerns raised by the author of the family report about the nature of the relationship of the children, particularly X, with their father.

(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in major long-term issues, spending time with the child and communicating with the child

27. The parents, as I have mentioned, clearly have the long-term interests of their children at heart. The parents, in this case are both educated. They are both intelligent. The children appear, apart from X’s speech problems, to be doing reasonably well and that is a good sign and both parents can take some pride in that achievement. These are not irresponsible parents.

(ca) The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child

28. I understand it there is no issue about the father and his payment of child support.

(d) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, or any other child, or any other person, including a grandparent or other relative

29. There is not likely to be any change in the child’s circumstances.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent

30. I have referred to the fact that when these children spend time with their father they are obliged to travel by bus. Apparently what happens if the children wish to take something to their father’s – for example, Y wished to take her pet cat to the father’s home at one point and at other times X has wanted to take his X-Box – the mother has been obliged to deliver whatever it is – the X-Box or cat – to some place near the father’s home because she does not know where it is, or says she does not, and drop it off with the children.
31. It is indicative of the fact that, while these parents live reasonably close together, in a geographic sense, the time spending is actually associated with some practical difficulty. It is regrettable that that is the case. That is, in itself, possibly – and I speculate here – is one of the reasons why these children are resistant to the idea of the additional time with their father. The time-spending regime, the way these children have to do it, is onerous. It is onerous in time. It is onerous in where they have to travel. It is far from ideal.

(f) the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

32. I think these parents are perfectly capable of providing for the needs of their children. They are both educated. There is no doubt that they can both provide for the intellectual needs of these children. Their emotional needs are a somewhat different matter. I have alluded to what I consider is, perhaps, a certain lack of insight by the father into the inappropriateness of the orders he is seeking.

(g) the maturity, sex, lifestyle and background of the child or either of the child’s parents

33. As I have mentioned, X has a speech impediment, for which he has been given therapy over the years. Whether or not that fact is particularly relevant to the present situation, I am not sure. I suspect the issues really lie elsewhere.

(i) the attitude to the child, and the responsibilities of parenthood

34. I have made some remarks, generally, about that, and I do not wish to say anything more.

(j) Any family violence

35. There were allegations of very serious conflict between these parties at the time of the separation and leading up to the separation. While the level of hostility and conflict continues there does not appear to be any evidence that in recent times that is being played out in front of the children I am not aware of any family violence order applying.
36. I will make an order that the children spend alternate weekends with the father and excluding Wednesday nights.