30 Apr Winning custody as a father: a case study
Family Law Case where a Father got custody and 70% of the assets
As a family lawyer, I hear quite often from husbands and fathers going through the family law courts that “women always win” and “women always get the kids and most of the property”. Another gripe is that your ex-spouse will get half of everything even if you came into the marriage with a lot of assets and they came in with hardly any.
The case of Daly & Terrazas 2019 indicates otherwise and shows how the courts apply the relevant principles and where winning custody as a father is possible.
Daly & Terrazas 2019
In this case, the parties commenced cohabitation in May 2005, married in 2014 and separated late in that same year. At the time the Husband was 47 years old and the Wife was 44. There were two children of the relationship, ‘X’ who was born in 2005 and ‘Y’ who was born in 2008 (“the children”).
Following the parties’ separation in June 2014, the children were living in a shared care arrangement, although after that, the children had lived primarily with the wife and from June 2017, primarily with the husband.
Final orders were made in relation to the children in the following terms:
- the husband to have sole parental responsibility for the children albeit with a responsibility to advise the wife of any major long term decision prior to its being given effect;
- the children to live with the husband; and
- the children spend time with the wife on weekends and weekdays during the school term and during school holidays.
These orders were not successfully appealed so the judgement and final orders still stand.
History of the parties and why the decision was made for 70/30 to Husband
At the commencement of the marriage, both parties had property and other assets. It was common knowledge that the wife’s net assets at the commencement of the relationship were about $500,000. According to the husband he had initial contributions of $4,974,512. Although the wife disputed that value of the husband’s initial contribution, the Judge accepted the value the husband gave.
During the marriage, the wife worked in professional paid positions and also earned income from share trading. The husband earned an income as well as from business investments.
At the time of separation, the Husband’s superannuation entitlement was $342,351 and those of the wife was $83,618. Following separation, the parties continued to invest and reap profits on their investments.
The Judge found that the total assets excluding superannuation were over $12 million after separation.
The Judge made a ruling that from the time when the parties started to live together, each contributed their money and efforts into the “enterprise of their family” and that except for the parties’ initial contributions, their contributions should be assessed as equal.
Having regard to the difference in their initial contributions, the assessment of the Wife’s contributions was only 20 per cent compared to the husband as to 80 per cent.
Then the Judge had to consider the future needs of the parties. The Judge took into account that the husband will have assets capable of earning vastly more income than the wife and that he has greater superannuation entitlements than the wife. But the Judge also took into account that the husband will have a greater proportion of the care of the children and their financial support, even if the wife pays him child support. So a further adjustment of 10 per cent was made in the husband’s favour.
Child Custody as a Father
There had been allegations of violence on both sides and an attempt by the Wife to relocate them or change schools. After the parties separation, the Husband claimed that there were incidents where he was contacted by the children complaining of the mother’s behaviour towards them. The Wife claimed that the Husband’s behaviour was alienating her relationship with the children. In the end, the Judge considered all evidence including from the family report writer, then ruled that the children live with the Husband, but have regular time with the Wife.
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