· 2021-08-02T07:25:32+0000 · 762 posts

Parties Dispute Property Matters and Parenting Orders Post Separation

Albray & Albray [2021] FCCA 1402 (7 July 2021)

Parties who separated after a 17 year marriage dispute property matters and parenting orders. The mother asserts that she should have sole parental responsibility for decisions about medical matters. The father asserts that he should have five nights per fortnight with the children. He also disputes the weight given to damages awards received by the wife as a result of motor vehicle accidents during the relationship.

Facts:

The parties were in a 17 year marriage. In the course of their relationship, the parties purchased three real properties in Australia. For asset protection reasons the B Street, Suburb C property was purchased as 99% in the husband’s name and 1% in the wife’s name. The wife had her first motor vehicle accident in 2008 in the City R area and the second was in 2015 in Britain. In 2012 she received a damages award of $405,581.80 in respect of the 2008 accident and in 2015 she received $49,615.06 in respect of the 2012 accident.

The money the wife received went into the B Street, Suburb C property and general living expenses. Upon their separation, a dispute arose regarding property matters. On 31 August 2018 the husband filed an application seeking property and parenting orders. The parties agreed that the children would continue to live with the wife and spend time with the husband. A shared parental responsibility was also agreed by the parties.

The property pool consists of non-superannuation assets worth $640,380.00 and superannuation assets worth $175,563.00. The wife received $455,196.86 as damages awards following two separate motor vehicle accidents during the relationship. The husband’s counsel submitted that when all contributions, including but not limited to the damages awards, were taken into account contributions to the non-superannuation pool should be assessed as 58% by the wife and 42% by the husband. The wife’s counsel submitted that contributions should be assessed as 72.5 to 77.5% by the wife and 27.5 to 22.5% by the husband as a result of her receipt of the damages award and some post-separation matters which he said favoured the wife.

Issues:

I. Whether the wife should have sole parental responsibility for decisions about medical matters.

II. Whether the children should spend four or five nights per fortnight with the husband during school terms.

III. Whether or not adjustment should be made in the husband's favor with regard to the damages awards received by the wife.

Applicable law:

Family Law Act 1975 (Cth) ss 60CC, 61DA, 79 - provides that the Court in making parenting orders should treat the child's best interest as the paramount consideration. There is a presumption that the parties should have equal shared parental responsibility for the children absent a finding that one of the parents or a person living with them has perpetrated family violence or abused the children.

F amily Law Act 1975 (Cth) s 75 - provides the matters to be considered with regards to spousal maintenance.

Aleksovski & Aleksovski [1996] FamCA 111; (1996) FLC 92-705 - the Full Court held that portion of a damages award which relates to economic loss, representing income lost during the marriage or period of cohabitation, may also be regarded as a contribution by the party who has suffered the loss.

Danford & Danford (2011) FamCAFC 54 - where the non-superannuation pool was worth about $2.45 m and the husband had received a damages award of $1.4m shortly before separation. The trial judge assessed contributions as 55/45 in the husband’s favour and this was upheld on appeal.

Stanford & Stanford [2012] FamCAFC 1; (2012) FLC 93-495 - the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests.

Analysis:

As to medical decisions, the husband has shown difficulties because it took him twelve months to agree to one of the children seeing an ENT specialist. He had also acted unilaterally in taking Y to a doctor and having melatonin prescribed for her. The wife submits that the children were settled in a routine in her home with homework and other matters. She also said that it was preferable if the time was broken up over a fortnight so that they saw their father each week rather than saw him for one block followed by a considerable gap, and that an afternoon rather than an overnight in the other week suited the children’s routine.

Neither party argued that the court should find that there had been any family violence or abuse of the children. Children usually benefit from both parents having an input into medical decisions. However, this is not the case if conflict and delay is particularly likely to impact adversely on the children. In the case, it was submitted that there was difficulty securing the husband’s agreement to necessary treatment.

Conclusion:

The Court ordered that the wife shall have sole parental responsibility for decisions about medical and dental treatment for the children. The parents shall otherwise share parental responsibility for the children. The children shall spend time with the husband each fortnight during school terms. As to the property matters, the Court concluded that the parties thus have non-superannuation assets worth $640,380.00 and superannuation worth $175,563.00, a total of $815,943.00. The Court ordered that the wife shall pay the husband the sum of $283,980.00. The balance from the proceeds of the sale shall be distributed 60% less $110,220.00 to the wife and 40% plus $110,220.00 to the husband.

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