ARKINS & ARKINS

[2018] FCCA 516

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARKINS & ARKINS [2018] FCCA 516

Catchwords:
FAMILY LAW – Property and Parenting – adjustment significantly in wife’s favour after findings of credit and non-disclosure by husband – spend time with orders – parental responsibility.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 75, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FLC 92-287
Chapman & Chapman [2014] FamCAFC 91
Goode & Goode (2007) 36 Fam LR
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Prince & Prince (1984) FLC 91-501
Russell & Russell (1999) FLC 92-877
Salah & Salah [2016] FamCAFC 100
Scott & Danton [2014] FamCAFC 203
Slater & Light [2011] FamCAFC 1

Stanford v Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Applicant: MR ARKINS

Respondent: MS ARKINS

File Number: PAC 4113 of 2015

Judgment of: Judge Obradovic

Hearing dates: 18 – 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Parramatta

Delivered on: 5 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Valentin

Solicitors for the Applicant: Aston Legal

Counsel for the Respondent: Mr Greenaway

Solicitors for the Respondent: Lewarne & Goldsmith

PARENTING ORDERS

1. All prior parenting orders are discharged.

2. Each of the parents shall have equal shared parental responsibility for the child X born (omitted) 2012.

3. The child shall live with the mother.

4. The child shall spend time with the father during the New South Wales school terms as follows:

   (a)Commencing 9 March 2018 and each alternate week thereafter from after school on Friday to before school on Monday; and

   (b)Commencing 14 March 2018 and each alternate week thereafter, from after school on Wednesday to before school on Thursday.

5. The child shall spend time with the father during the New South Wales school holiday period as follows:

   (a)For the first half of the shorter school holiday periods ending Terms 1, 2 and 3 in 2018 and each even numbered year thereafter;

   (b)For the second half of the shorter school holiday periods ending Terms 1, 2 and 3 in 2019 and each odd numbered year thereafter; and

   (c)Until the child reaches seven years of age, each alternate week during the Christmas school holiday period and thereafter the first half in even numbered years and the second half in odd numbered years.

6. Notwithstanding any other order the child shall spend time with the mother and the father during special occasions as follows:

   (a)With the mother from 11am Christmas Eve until 5pm on Christmas Day in odd numbered years and with the father from 5pm Christmas Day until 5pm Boxing Day in odd numbered years;

   (b)With the mother from 5pm Christmas Day until 5pm Boxing Day in even numbered years and with the father from 11am Christmas Eve until 5pm Christmas Day in even numbered years.

   (c)The child shall spend time with the mother from 11am New Years Eve until 5pm New Years Day in odd numbered years commencing in 2019 and with the father from 11am New Years Eve until 5pm New Years Day in even numbered years commencing in 2018.

   (d)The child shall spend time with the father from 6pm on the Saturday immediately prior to (omitted) Easter Sunday until 5pm on (omitted) Easter Sunday provided however should (omitted) Easter fall on the same Sunday as (omitted) Easter Sunday then the father shall spend time with the child from 2pm until 7pm on Easter Sunday. Except as otherwise provided for herein, the child shall live with the mother during the (omitted) Easter period.

7. For the purpose of changeover, unless changeover occurs at school all changeovers are to take place at (omitted) McDonalds or as otherwise agreed in writing between the parties.

8. The Court requests that the Australian Federal Police remove the name of the child X born (omitted) 2012 from the Airport Watch List at all points of international arrivals and departures in Australia.

9. The parents are to keep each other notified of their residential address and telephone numbers.

PROPERTY ORDERS

1. Within 42 days the Applicant is to pay to the Respondent the amount of $300,000.

2. If the Applicant fails or is unable to comply with order 10 above, then the property at Property A shall be sold in the manner described below.

3. The Applicant and Respondent forthwith list for sale and sell the property situate at and known as Property A with a real estate agent as agreed to between the parties. In the event that the parties are unable to agree as to the selling agent then the Respondent will provide a list of three real estate agents together with their Agency Agreements and the Applicant thereafter and within 7 days nominate one of the agents.

4. Upon the settlement of the sale the settlement proceeds shall be disbursed as follows:

   (a)Payment of outstanding Council Rates and Water Rates;

   (b)Payment of the legal fees and agents commission for the sale;

   (c)To discharge loans secured against the property with (omitted) Bank; 

   (d)In payment to the Respondent of $300,000;

   (e)In payment to the Applicant of $32,425 or the balance, whichever is the lesser; and

   (f)Thereafter, any balance to be paid to the Respondent as to 65% and the Applicant as to 35%.

5. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Arkins & Arkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4113 of 2015

MR ARKINS

Applicant

And

MS ARKINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings relating to both property and parenting matters. The parties to the proceedings are the Applicant Mr Arkins and the Respondent Ms Arkins.

2. There is one child of the relationship, X born (omitted) 2012.

Short Chronology

1. The Applicant was born on (omitted) 1975 and is currently aged 41 years.

2. The Respondent was born on (omitted) 1975 and is currently aged 41 years.

3. The parties met in (country omitted) and began cohabiting in (omitted) 2006 in (country omitted).

4. At the commencement of their relationship the Applicant operated a (omitted) business in (country omitted) and the Respondent worked for the Applicant at the (business omitted) from time to time.

5. The (omitted) business was closed in 2009 and it is the Applicant’s evidence that the business was unable to be sold due to the financial situation faced in (country omitted) at that time.

6. The parties moved to Australia in 2009 and the Applicant commenced employment as a (occupation omitted) whilst the Respondent was unable to work due to visa restrictions.

7. In (omitted) 2011 the parties purchased the former matrimonial home at Property A, New South Wales.

8. The parties married on (omitted) 2011.

9. The parties’ only child X was born on (omitted) 2012.

10. In 2013 the parties secured a loan against the former matrimonial home for $60,000 and in (omitted) 2014 the Applicant purchased “(omitted)“ business for approximately $50,000 - $55,000. This business was sold in (omitted) 2016 for $90,000, with the proceeds of the sale being used by the Applicant in a manner which even after extensive cross-examination remains unclear.

11. On 7 July 2015 the parties became involved in an altercation which resulted in the involvement of the police and a final Apprehended Domestic Violence Order was made on 16 December 2015.

12. On 19 August 2015 the Respondent left the former matrimonial home with the child.

13. On 11 December 2015 the Court made interim orders for the child to live with the mother and spend defined time with the father.

14. In (omitted) 2016 the Applicant purchased a (business omitted) which he continues to operate at the (omitted).

Documents relied on

1. The Applicant relied on the following documents at final hearing:

   a)Amended Initiating Application filed 19 May 2017;

   b)Affidavit of Mr Arkins sworn and filed 19 May 2017;

   c)Affidavit of Ms F sworn and filed 19 May 2017;

   d)Affidavit of Ms F sworn and filed 10 December 2015; and

   e)Financial Statement of Mr Arkins filed 19 May 2017.

2. The Respondent relied on the following documents at final hearing:

   a)Amended Response to Initiating Application filed 9 June 2017;

   b)Affidavit of Ms Arkins sworn 7 June 2017 and filed 9 June 2017;

   c)Financial Statement filed 26 August 2016;

   d)Reply filed 22 May 2017; and

   e)Notice of Risk filed 9 December 2015.  

The Relevant Legal Principles

Property Adjustment Proceedings

1. The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[1]where their Honours stated:

   [1] [2012] HCA 52; (2012) 247 CLR 108

   [37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   …

   [40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…

   [42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…

2. Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].

   [2] [2014] FamCAFC 19

   [3] [2014] FamCAFC 91

   [4] [2014] FamCAFC 203

3. Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.

4. The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]

   [5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120

5. The just and equitable requirement is “one permeating the entire process”[6].

   [6] Bevan supra at [86]

Parenting Proceedings

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[7]

   [7] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[8] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[9]

   [8] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [9] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[10]. The Court may include[11] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [10] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [11] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[12]

   [12] MRR v GR [2010] HCA 4 at [15]

10. The Full Court in Goode v Goode[13] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[14]  affirmed the legislative pathway.

    [13] (2007) 36 Fam LR 422, (2006) FLC 93-286

    [14] [2010] HCA 4

Evidence of the Applicant

1. The Applicant currently resides in the former matrimonial home in the (omitted) Sydney suburb of Property A.

2. The Applicant owns and operates a (business omitted) and has a large amount of flexibility in his current working hours and is able to alter his working hours to ensure he can spend time with the child.

3. The Applicant denies any history of drug use, violence or mental health issues.

4. The Applicant says that prior to the parties’ marriage in around 2010 the Respondent opened a bank account with (omitted) Bank and that the Applicant became a signatory to that account.

5. In November 2011 the parties opened a joint account with (omitted) Bank with the Applicant’s income being deposited into this account.

6. The Applicant says that in around 2015 he attended Centrelink to enquire about supplementing his income as the business was accumulating a great deal of debt. He says that Centrelink staff informed him that the Respondent was already in receipt of a number of Centrelink benefits including family tax benefits. The Applicant was unaware that the Respondent had been receiving any Centrelink income.

7. As the Applicant was named as a signatory on the Applicant's (omitted) Bank Account, he was able to verify that the Respondent had in fact been receiving government payments into that account. The Applicant cannot say what those funds were used for other than for the Respondent’s own purposes.

8. Following the birth of the parties’ child in 2012, the Applicant says that the Respondent’s behaviour and moods significantly changed and that she became argumentative, dismissive, aggressive and irritable.

9. The Applicant says the parties came to a mutual decision that the Respondent would remain at home for one year following the birth of the child and that he would continue to be the sole income earner. However, the Applicant says that the Respondent “made the unilateral decision to remain unemployed well beyond that timeframe” which put a great deal of financial and emotional pressure on the family.

10. The Applicant says that the Respondent’s mood and behaviour continued to deteriorate and become more aggressive and that she would make comments such as “If anyone wakes the baby, I will rip their fucking head off”.

11. The Applicant explains that the Respondent on one occasion kicked and damaged the rear lights on his motorcycle following an argument and that she began following him around the house and pushing him. He says that the Respondent pushed him in the chest and sprayed a can of deodorant in his eyes following an argument.

12. The Applicant claims that the Respondent would “often attempt to alienate” the child from him and that she would prevent him from spending any time with the child. Further, she would prevent the paternal family spending any time with the child.

13. The Applicant’s evidence is that the child would be rewarded with treats by the Respondent when the child would disobey him or act negatively towards him. The father is very critical of the mother in this fashion.

14. On 7 July 2015 the Applicant says an incident occurred between the parties following a disagreement about watching a television program. The Applicant says that he realised the Respondent was recording the disagreement and upon him trying to retrieve the mother’s mobile phone the mother began to scream loudly yelling for “help” and “call the police”. The Applicant says the mother became physical towards him by pushing, punching and elbowing the Applicant. The Applicant says in his defence he “used an open hand to get Ms Arkins off me”. The incident however did not stop at this point, the Respondent alleged that the Applicant then further lunged at the father whilst he was standing at the backdoor and began punching him again.

1. On 19 August 2015 the Applicant was advised by neighbours that the Respondent was moving out of the former matrimonial home. The Applicant began the journey back to the former matrimonial home when he noticed the Respondent’s car and a ute carrying all of his belongings driving past. The Applicant made numerous attempts to speak with the driver of the ute however was unsuccessful. Both vehicles drove to (omitted) Police Station where the Applicant approached the Respondent and asked her “what’s going on?”. The Applicant’s affidavit is silent as to the Respondent’s response. The Applicant spoke briefly to police officers and then returned to the former matrimonial home.

2. The Applicant submits that the Respondent has made many attempts to “get me in trouble with the police” with false allegations.

3. On 20 August 2015 the Respondent made a formal complaint with the Police with what the Applicant says are “untrue and false allegations based on the events of 7 July 2015 and 19 August 2015”. As a result the police issued the Applicant with a Provisional Apprehended Domestic Violence Order on 28 August 2015. The matter proceeded to final hearing and a final Apprehended Domestic Violence Order was imposed on the Applicant for a period of two years.

4. The Applicant submits that the mother makes changeovers difficult and deliberately tries to ensure the father breaks the conditions of the Apprehended Domestic Violence Order.

5. The Applicant says he has genuine concerns that the Respondent is “stalking” him and that he has concerns that when the child comes into his care she is crying. When the Applicant asks her why she is crying the child replies “mummy tells me to cry”, “my mummy said you stole her money and she will take you to court”, “this is my mummy’s house, you stole it from her”.   

6. The Applicant is concerned that the Respondent will not promote or foster a healthy relationship between him and the child and that in particular the Applicant will not be able to teach the child about her (nationality omitted) culture. This is a matter upon which the Court tends to agree with the Applicant given the mother’s unilateral decision to baptise the child in the (omitted) faith and her remarks that a christening of the child in the (omitted) Religion faith was something which was never going to happen.  

7. Further, the Applicant is concerned that the mother is coaching the child to disengage with the paternal grandparents, for instance when the Applicant has asked the child to hug or kiss the paternal grandparents the child says words to the effect of “mummy said I don’t have to” and “mummy said I don’t have to listen to them because they’re not my mummy”.

Mother’s Evidence

1. The Respondent in her Affidavit says that when the parties commenced their relationship the Applicant would “use pot” referring to marijuana and that when questioned, the Applicant told the Respondent that he has used “speed and coke” in the past and that he would use it again. The Respondent says that the Applicant would consume “pot” “almost every day” up until about 2013 and that he would continue to smoke it with friends in the garage of the former matrimonial home up until the parties separated in 2015.

2. The Respondent has been the child’s primary carer since her birth and says that the Applicant would spend most of his time either at work or at the home of friends. She says that the Applicant had never had the care of the child for more than one hour prior to their separation and that he frequently had the assistance of the paternal family during times that he was caring for the child.

3. In approximately 2014 the child was with the Applicant in the garage of the former matrimonial home, the Respondent says she could smell “pot” being smoked from the garage and that she could see “hazards lying around like paint and turpentine”. The Respondent did not remove the child from the situation but instead told the Applicant to remove the hazards. A short time after the Applicant brought the child to the Respondent and told her that she had “drank turps”. The Respondent immediately took the child to the hospital.

4. The Respondent says that the Applicant disciplines the child by getting angry, shouting and swearing at the child.

5. The Respondent agrees that the parties opened a joint bank account when they arrived in Australia. She says that her wages together with the Applicant’s wages were deposited into this joint account, however says that the Applicant controlled the money and told her not spend any as it was needed to pay bills. The Respondent says she would sometimes try to use the money in the account however, “there was normally no money in there”.

6. The Respondent says that the parties’ relationship became strained when the paternal grandparents moved in with them in about 2010.

7. She says that the Applicant began demanding her to have sex with him more often then she wanted to and that he became quite demanding of what he expected her to do with him during these moments.

8. The Respondent says that the paternal grandparents interfered in their lives and that they would be critical of the mother particularly during her pregnancy and following the birth of the child. She says the Applicant likewise would be demeaning toward her and say things to her such as “You’re a pathetic excuse for a wife”, “You’re a lazy cunt” “You’re a gypsy and a leech” and “(nationality omitted) scum”. The Respondent says this demeaning behaviour would often occur in the family home in the presence of the child.

9. The Respondent overheard the Applicant threatening to kill a neighbour and “bury you under the yard” in approximately 2012/2013.

10. The Respondent says the Applicant began to alienate her from her family in the (country omitted) by taking her only form of communication away, a laptop computer, during the daytime and taking it to work with him. There was a period of approximately one and a half months where the Respondent was only able to communicate with her family by text message. This also affected the ability of the child to communicate with the maternal family.

11. The Respondent says that she had no input into how the monies obtained via bank loans was used and that the Applicant would be disingenuous with her about what the purpose of the money was for. For example, in 2015 when the parties obtained a $60,000 loan from the (omitted) Bank the Respondent believed the money was obtained to build a granny flat, rather the Applicant used the money to purchase a motorbike and the current (omitted) business.

12. The Respondent concedes that she caused damage to the Applicant’s motorbike in March 2015 as she was angry and flustered by the Applicant’s actions to take the child to a funeral and that he had tried to grab the child from the mother. The mother made a report to the police regarding the incident, no further action was taken by the police.

13. The Respondent says that on Mother’s Day in 2015 the Applicant slapped the child across the face for touching his mobile telephone and that the parties became embroiled in a nasty altercation and exchange of words in the presence of the child. The Respondent says that the Applicant yelled at the child “go on, go to your fucking mother! You don’t listen to me anyway, just fucking go!” and that when the Respondent put a movie on to calm the child, the Applicant became enraged as he believed she was rewarding the child and he proceeded to yell at the mother “The TV’s not yours. Get a fucking job and buy your own stuff! You don’t own anything. You’re a lazy cunt and X’s behaviour is your fault! He then began to remove the TV cables to prevent the TV being used.

14. The Respondent’s version of the events that took place on 7 July 2015 are different to that of the Applicant, like much of the parties evidence. She says the Applicant arrived home from work and the child refused to give him a hug and that she knew this would anger the Applicant so began an audio recording. Upon the realisation of the recording the Applicant grabbed the phone and pushed the Respondent backwards and further “brushed me away with his left arm and, in doing so, hit my lip with enough force to cause a small cut and soreness”. The Respondent submits that she still suffers pain to her knee and that she has been advised that she has suffered cartilage damage as a result of this event. 

Credit

1. The Applicant is not a witness of credit. 

2. The Court finds that he deliberately failed to fully disclose all relevant financial transactions and circumstances, for example:

   a)The requests for particular documents made by the solicitors for the Respondent on [insert date] have not been answered;

   b)There was a failure to explain fully the purchases and sale of various assets post separation, comprising of motor vehicles and motorcycle; and

   c)There was a failure to disclose all relevant bank accounts in the Financial Statement.

3. While it is possible to take the view that the Applicant is just an incompetent record keeper and is very blasé about his finances, to do so would be to give the Applicant the benefit of his failure to comply with his obligations of full and frank disclosure. The Court is satisfied as a result of the answers given in cross-examination that the Applicant was well aware of his obligation to fully and frankly disclose all relevant financial transactions, but that he took the view (inter alia because in his mind the Respondent had wronged him and had lied) he did not need to comply with those obligations.

4. Furthermore, there are significant conflicts in the Applicant’s evidence in chief to the evidence he gave under cross-examination, this is particularly evident from paragraphs 32 to 34 of the Applicant’s affidavit when compared to his oral evidence. There are findings elsewhere in these reasons about those matters.

5. Therefore, where the two are in conflict, the Court accepts the evidence of the Respondent over the Applicant (unless other specific findings are made).

Assessment of Contributions

1. While the parties were living in (country omitted), shortly prior to their move to Australia, the Respondent had some 139,000 EURO in her bank account. The Applicant says if she did, she never told him about it and it is difficult for him to accept that she had such moneys as they were living together and he would have known about it.

2. The Applicant says that the Respondent contributed at most $50,000 at the commencement of the relationship. This is an approximation by him the basis of which was not explained by him.

3. It is clear to the Court that the Applicant did bring in a significant amount of money into the relationship, but that whatever that amount was it had to a large extent been spent on vehicles, the costs of setting themselves up in Australia and general living expenses.

4. The Court accepts the submission made on behalf of the Applicant to the effect that the deposit for the purchase of the former matrimonial home can be traced back to the funds which the Respondent held while the parties lived together in (country omitted). As such, the Court finds that the entirety of the deposit for the purchase of the former matrimonial home came from the Respondent.

5. During the time that the parties lived together, the Respondent worked until shortly prior the child’s birth. She contributed, through her income, to the cost of living and to the mortgage. Once she went on maternity leave, there was an unknown amount for parental leave which was paid to her and she continued to receive government benefits, which were banked into her personal account and which were utilised for the benefit of the family.

6. The Respondent, the Court finds, made significant financial contributions during the relationship, particularly during the period when he was the sole income earner. There is no objective evidence that the mortgage repayments were not met during this period or that the parties had significant debts.

7. In respect of the non-financial contributions, the Court finds that it is the Respondent who made the over-whelming non-financial contributions, through her role as home-maker and parent.

8. In respect of the $60,000 line of credit, it is clear that the Applicant, without recourse to the Respondent purchased a business with this money. That business brought in an income which was utilised for the benefit of the family prior to separation. After separation, the Applicant continued to enjoy the income from that business but was also responsible for the liabilities, albeit he only ever made interest only payments on this loan. After the business was sold, the Applicant pocketed over $90,000 as a result of the sale, including a bond refund. He retained the entirety of those funds, which were to a small part used to make repayments on the mortgage encumbering the former matrimonial home. It is unclear exactly how the entirety of those proceeds were spent by the Applicant, but at the time of hearing, all of the money was gone yet the $60,000 loan remained.

9. The Applicant’s evidence in respect of the proceeds of sale is conflicting. His evidence in chief clearly states that the moneys were used to pay off debts, including ATO debts, creditors and personal debts. He does not have any evidence corroborating such statements, notwithstanding that such documents would have been within his possession, custody or control or that he otherwise would have had the ability to obtain them for the purposes of the proceedings – particularly any documents evidencing business debts.  He also says that the remainder of the proceeds of sale were used to purchase the (omitted business)[15] for $20,000. The difficulty with this assertion is that during cross-examination he stated that such moneys were lent to him by his brother-in-law, and he also represented to Roads and Maritime Services NSW that the van was purchased for $8,000.

   [15] His current business

10. The Applicant further stated in his affidavit that he borrowed $45,000 (in addition to the $20,000 which came from the proceeds of sale) to establish the business and pay for prior debts. It appears that the Applicant, by way of his evidence in chief, is asserting debts of well over $100,000[16] at the time of the sale of the business. It would have been quite easy for the Applicant to put before the Court relevant documentary evidence in support of his contentions in respect of business debts, ATO debts and other personal debts at the time of separation. After all, the parties commenced living part from only mid-2015, less than 2 years prior to the final hearing. Had the Applicant been keeping proper business records, such documents would by and large (if one is to accept his evidence about the nature of the debts) formed part of the business records he is obliged to keep.

    [16] $90,000 as apparently used to pay off debts and part of the $45,000 was used to pay off debts

11. In Prince & Prince (1984) FLC 91-501, consideration was given to the appropriate treatment of liabilities in section 79 proceedings. Evatt CJ said:

    The assessment of debts and liabilities is not necessarily arrived at by a strictly mathematical or accounting approach in all cases.  While some liabilities are charges upon the property which can be accurately assessed at a certain date, others are at large or have not been precisely determined, e.g., tax liabilities … In some cases there are sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly (e.g. a loan from a parent of the party not likely to be enforced…. In other cases, the Court may take the view that because of the circumstances surrounding the incurring of the liability it ought in justice and equity to be wholly or partly disregarded in determining the appropriate order to make under sec.79 as between the parties to the marriage. Such a result could be reached where a spouse had incurred a liability in deliberate or reckless disregard of the other party’s potential entitlement under sec.79 …  Complex issues can arise in regard to liabilities to third parties…

    Of course, the Court cannot ignore the fact that there is or may be a liability; the effect is simply that it does not consider that the other spouse should be called upon to in effect “contribute” to the liability by having that spouse’s fair share in the parties’ property reduced by virtue of its existence. The effect may be that the party who has incurred the liability will be left to meet it out of whatever funds remain to that party after satisfying the property order made under sec.79 .

    (citations omitted)

12. One appropriate approach would be to quarantine the entirety of the $60,000 debt by assigning the debt to the Applicant for the purposes of the pool, and consequently of including in the pool only those assets that remain as a result of the $90,000 received by the husband – which are the Ford (omitted)[17], (omitted) Nissan[18] and (omitted) van[19], and simply include these in the balance sheet (the value of which is approximately $30,000 in total in any event).

    [17] The Applicant’s evidence is that he purchased this vehicle for $9,000 from the sale proceeds and that he still retains it

    [18] Which is in the possession of the Respondent

    [19] Which is the Applicant’s work van used for the (omitted) business he currently runs. For the purposes of this explanation, albeit it is contrary to the Applicant’s own evidence, it is accepted that the purchase of the van was funded from the proceeds of sale.

13. Another approach to deal with the $60,000 liability and the $90,000 sale of proceeds is to include both in the pool, by notionally adding back the $90,000 and excluding from the pool the assets which were purchased with this money.

14. Whichever approach is taken, the results are similar.

15. In respect of the Applicant’s current assets, it is difficult for the Court to make findings about when certain motor vehicles were purchased and sold by the Applicant, how any proceeds of sale were spent, and what the value of those assets might be. The Court accepts the values which the parties have agreed upon, such values being in one sense, admissions against interest. The Court does not accept, without more, the Applicant’s assertion that he has liabilities for the goods and services tax from 2016.

16. Something needs to be said for post separation contributions. The Applicant has been responsible for the maintenance of the former matrimonial home since separation. He has also been meeting the mortgage repayments, albeit in part from the proceeds of sale of the business the husband owned during the relationship. The Applicant has also it appears, been having significant financial difficulties in meeting the full mortgage repayments, yet he moves the Court for orders which would see him retaining the former matrimonial home. The Respondent says there is no evidence which would support an order that the Applicant retain the home and pay out the Respondent. While there is no evidence as such of loan applications, pre-approvals and the like which the Court would normally see in an application of this sort, the fact is that the Applicant has remained living in the home and has been making all[20] payments associated with the home.

    [20] Used loosely in the sense of the number of payments not the whole payments which were due

17. Ultimately, the Court assesses the parties’ overall contributions as 60/40 in the Respondent’s favour.

s.75(2) Factors

1. It is the Court’s finding that there should be an additional adjustment in the Respondent’s favour on account of the 75(2) factors, primarily arising out of her future earning capacity and her child rearing responsibilities. It is the Court’s view that a further 5% adjustment in the Respondent’s favour is appropriate.

Justice and Equity

1. Using the first approach, at final hearing, the asset pool consisted of the following:

Asset/Liability	Value
Property A’s (joint)	$ 685,000
(omitted) Nissan (Respondent)	$ 2,000
Ford (omitted) (Applicant)	$ 9,000
(van omitted) (Applicant)	$ 20,000
Superannuation – various total (Applicant)	$ 35,214
Superannuation (Respondent)	$ 6,876
Mortgage (Property A) (joint)	($ 292,321)
TOTAL NET:	$ 465,769

1. Given that the Court has assessed that the Respondent should receive a 65% overall adjustment in her favour, this would see her having total assets of $ 302,750 and the Applicant is to receive total assets of $163,019.

2. Therefore, if an adjustment was to be made such that the Applicant received only 65% of the net assets, she would then receive:

Asset/Liability	Value
(omitted) Nissan (Respondent)	$ 2,000
Superannuation (Respondent)	$ 6,876
Cash Payment (from Applicant)	$293,874
TOTAL NET:	$ 302,750

1. And likewise, therefore, the Respondent would receive:

Asset/Liability	Value
Property A’s (joint)	$ 685,000
Ford (omitted) (Applicant)	$ 9,000
(van omitted) (Applicant)	$ 20,000
Superannuation – various total (Applicant)	$ 35,214
Mortgage (Property A) (joint)	($ 292,321)
Cash Payment to Respondent	($ 293,874)
TOTAL NET:	$ 163,019

1. The Applicant in this scenario, is to be entirely responsible for the $60,000 loan, which is not included in the pool for the purposes of the calculation. Therefore, in reality, he would only receive $ 103,019 of net assets, while the Respondent would receive over $290,000 in cash.

2. As noted earlier, if the $60,000 included and the $90,000 is added back in accordance with the second approach, then the results would be similar, albeit the pool would look slightly different:

Asset/Liability	Value
Property A’s (joint)	$ 685,000
Sale Proceeds (add back)	$ 90,000
Superannuation – various total (Applicant)	$ 35,214
Superannuation (Respondent)	$ 6,876
Mortgage (Property A) (joint)	($ 292,321)
Portfolio Loan (Property A) (joint)	($ 60,254)
TOTAL NET:	$ 464,515

1. Given that the Court has assessed that the Respondent should receive a 65% overall adjustment in her favour, this would see her having total assets of $ 301,935 and the Applicant is to receive total assets of $162,580.

2. Therefore, if an adjustment was to be made such that the Applicant received only 65% of the net assets, she would then receive:

Asset/Liability	Value
(omitted) Nissan (Respondent)	$ 2,000
Superannuation (Respondent)	$ 6,876
Cash Payment (from Applicant)	$ 293,059
TOTAL NET:	$ 301,935

1. And likewise, therefore, the Respondent would receive:

Asset/Liability	Value
Property A’s (joint)	$ 685,000
Sale Proceeds (add back)	$ 90,000
Superannuation – various total (Applicant)	$ 35,214
Mortgage (Property A) (joint)	($ 292,321)
Portfolio Loan (Property A) (joint)	($ 60,254)
Cash Payment to Respondent	($ 293,059)
TOTAL NET:	$ 162,580

1. As can be seen from the different approaches above that the net assets are similar and on either approach the Respondent is to receive a similar amount.

2. In all of the circumstances, the court finds that an order adjusting the parties’ interests, such that the Applicant pay the Respondent a cash amount of $300,000 is just and equitable in all of the circumstances. While this is slightly greater than the 65% calculated in the two scenarios above, given the lack of disclosure by the Applicant all of the figures which have been included in the balance sheet really favour the Applicant, contrary to Black & Kellner[21], it is for that reason that the final adjustment is to be as follows:

   [21] [1992] FLC 92-287

3. To the Applicant:

Asset/Liability	Value
Property A’s (joint)	$ 685,000
Ford (omitted) (Applicant)	$ 9,000
(van omitted) (Applicant)	$ 20,000
Superannuation – various total (Applicant)	$ 35,214
Mortgage (Property A) (joint)	($ 292,321)
Portfolio Loan (Property A) (joint)	($ 60,254)
Cash Payment to Respondent	($ 300,000)
TOTAL NET:	$ 96,639

1. To the Respondent:

Asset/Liability	Value
(omitted) Nissan (Respondent)	$ 2,000
Superannuation (Respondent)	$ 6,876
Cash Payment (from Applicant)	$ 300,000
TOTAL NET:	$ 308,876

1. The Applicant will be given a period of 42 days to refinance the mortgage and portfolio loan associated with the former matrimonial home. If he is not able to pay to the Respondent the amount of $300,000 as a consequence of his inability to obtain finance, the home will then be sold and there will be a division of proceeds of sale in a manner which will ensure that the parties receive an adjustment in accordance with the above conclusions.

Parenting

1. There are limited parenting issues for determination by the Court. The parties are to a large extent agreed about the future parenting arrangements for X. They agree that X should live with the mother, that she should spend each alternate weekend with the father and half the school holidays. Where the parties’ views diverge is in respect of time in the “off” week and in respect of parental responsibility.

Parental Responsibility

1. The Respondent sought an order for her to have sole parental responsibility, and the Applicant sought an order for the parties to have equal shared parental responsibility. There is of course, a presumption under the Act, in respect of parental responsibility.[22] Counsel for the Respondent submitted that the presumption has been rebutted, because the evidence is such that an order for the parties to have equal shared parental responsibility is not in the child’s best interest.

   [22] S61DA Family Law Act 1975 (Cth)

2. Both parties agree that they have difficulty in communicating, indeed there is concession by both of them that they do not communicate. The Court finds that while they do not communicate this is because they have chosen not to communicate, with the Respondent making unilateral decisions about the child in the knowledge that the Applicant would not consent and also not wanting to talk about issues because she knows that the Applicant is of a different view. The Applicant on the other hand is frustrated by the lack of co-operation on behalf of the Respondent and her unilateral decisions. In this regard, the Court recognises that the Applicant is in part responsible for the lack of communication, but finds that the majority of the responsibility falls upon the Respondent for the current state of affairs.

3. It is a finding of this Court that if an order is made for the Respondent to have sole parental responsibility, then it is more likely than not, that she will make any future long term decision regarding X without regard to what the Applicant might consider to be in X’s best interest and also without regard to the child’s (nationality omitted) heritage.

4. While there exists currently a low level of communication between the parties, the Court accepts the Applicant’s evidence that the parties both have the capacity and capability of speaking to each other in a civil fashion, particularly if such communications are by SMS or email, in respect of any long term decisions.  

5. As such, the Court finds that the presumption of equal shared parental responsibility has not been rebutted and that in all of the circumstances, it is appropriate for an order for the parties to have equal shared parental responsibility to be made.

6. The making of an order for equal shared parental responsibility, triggers the operation of s65DAA. Neither party submits to the Court that an order for the child to spend equal time is in her best interest, and the Court is likewise of the same view. The parties do not hold each other in high esteem, and indeed there is little trust between them. However, while such differences are not of sufficient weight to speak against an order for equal shared parental responsibility, they are of sufficient weight to speak against an order for equal time.

Time with Applicant Father

1. The parties agree that the child should spend significant and substantial time with the father, including alternate weekends and half school holidays.

2. The father proposes that he spend three afternoons after school with the child and the mother proposes that it be one afternoon a week. Three afternoons per week every fortnight is in the Court’s view, too disruptive for the child, particularly as she grows older and gets more involved in after school activities. One afternoon per week every fortnight is insufficient quality time with the father.

3. The Court’s view is that it is in the child’s best interest that the father have involvement in getting the child to school, ensuring her homework is done and participating in her usual after school activities. This can realistically only be done if there is time on a school day after school and overnight. That way, the child has the benefit of her father picking her up from school, getting her home to have dinner, helping her with her homework, getting her ready for bed and ensuring she is ready for school the next day[23], something which the child would otherwise only get the opportunity of every alternate Sunday. Therefore it is in the child’s best interest for there to be one overnight with the father in the off week.

   [23] Noting that due to the father’s current working hours it will be the paternal grandmother who will be taking the child to school of a morning

4. The issue of international travel is one matter that remains unresolved. While the father’s position had changed from consenting to such an order to then objecting, given that there are no immediate or even near future travel plans for either of the parties and the child, it is not necessary to decide the issue at this stage. If and when one of the parties wishes to travel with the child overseas, and the parties cannot come to an agreement about such travel an application can be made in due course, which may have certain cost consequences for one or both of the parties.

5. In respect of the existing Airport Watch List order, there is no evidence that either parent is a flight risk. Likewise, there is no evidence that either parent has threatened to take the child overseas. In effect, there is no evidence which would support a continuation of the Airport Watch List order and as such, the order will be discharged.

Conclusion

1. For all of the reasons set out above, orders as set out at the forefront shall be made.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  5 March 2018