Astor & Astor - [2007] FamCA 355

FAMILY COURT OF AUSTRALIA

ASTOR & ASTOR

[2007] FamCA 355

FAMILY LAW – CHILDREN – LIVING ARRANGEMENTS – Best interests – Parents agreed equal shared parental responsibility – Children closely attached to both parents – Parents’ residences proximate – Consideration of statutory factors – Order made for children to spend equal time with each of the parents on the week about basis

FAMILY LAW – PROPERTY SETTLEMENT – Companies - Directors’ loan accounts – Treatment of intercompany debt – Claimed add backs (disallowed) - Allegation of nondisclosure of unbanked business income (not proved) – Significant liabilities – Treatment of liabilities - Adjustment for liabilities - Just and equitable division - Property divided 60%/40 %

Family Law Act 1975 (Cth) – s 65DAA, s 60CA, s 60CC, s 60B(1)(a), s 60B(2)(a)
Family Law Act 1975 (Cth) – s 79, s75(2)

Barker & Barker [2007] FamCA 13
Black and Kellner (1992) FLC 92 -287
C v O’N [2003] FMCAfam 154
Chang and Su (2002) FLC 93-117
Coghlan and Coghlan (2005) FLC 93-220
Cordelia Holdings Pty Ltd v Newky Holdings [2004] FCAFC 48
Cunningham and Cunningham (2005) FLC 93-212
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
GBT v BJT [2005] FamCA 683
Giunti and Giunti (1986) FLC 91 -759
C & C [1998] FamCA 143
K & K [2002] FamCA 1150
Kessey and Kessey (1994) FLC 92-495
McF v McF [2004] FamCA 1309
Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853
Monte and Monte (1986) FLC 91 -757
Omacini v Omacini (2005) FLC 93-218
Phillips and Phillips (2002) FLC 93-104
Pierce and Pierce (1999) FLC 92-844
T & N [2001] FMCAfam 222
Weir and Weir (1993) FLC 92-338

APPLICANT:

Mrs Astor

RESPONDENT:

Mr Astor

FILE NUMBER:

BRF

899

2004

DATE DELIVERED:

24 April 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

12, 13, 14, 15, 16 February and 3 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Forrest of Counsel

SOLICITOR FOR THE APPLICANT:

Mr Munro of Mylne Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT:

Ms Miller of Fitz-Walter Lawyers

ORDERS

Children

IT IS ORDERED

The children live with the parties:
(a)In alternate weeks from Friday after school until the commencement of school the following Friday morning, the first such week with the husband to commence on whichever Friday which, ordinarily, the children would commence to spend five nights with him according to the current arrangements;
(b)For half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years.

AND IT IS ORDERED BY CONSENT

In terms of the minute of orders annexed and marked A.

AND IT IS FURTHER ORDERED

The original minute of orders signed by the parties be placed and remain on the Court file.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

Property

IT IS ORDERED

The orders made on 11 August 2006 and 3 November 2006 appointing Mr S, solicitor, as the trustee for the sale of the business B on behalf of O Pty Ltd and for the sale of the former matrimonial home at R are discharged.

AND IT IS FURTHER ORDERED

Pursuant to s 79 of the Family Law Act 1975 the property and assets of the parties or either of them be divided in accordance with the following:

The husband have:
(a)The former matrimonial home at R, valued at nil (having regard to the husband’s obligations in paragraph 3
(b)The shares in A Pty Ltd valued at $221,554
(c)The artwork known as T, L, F (artist …, the husband’s father) and the K etching gifted to the husband by his parents for his 30th birthday, valued collectively at $23,200
(d)The furniture and chattels in his possession (including a second K etching gifted to him by his parents for his 40th birthday), valued at $3,630
(e)His jetski, valued at $6,750
(f)The debt due by the husband’s mother and brother, valued at $35,000
(g)His superannuation, valued at $51,078
(Total value, $341,212)
(h)Plus or minus the amount to be paid by the husband to the wife, or the wife to the husband pursuant to paragraph 5(c).
The wife have:
(a)       The shares in O Pty Ltd valued at $121,952
(b)       The furniture and chattels in her possession, valued at $7,647
(c)The jewellery in her possession, including the P, valued at $10,202
(d)       Her superannuation, valued at $30,613
(Total value, $170,414)
(e)Plus or minus the amount to be paid by the husband to the wife, or the wife to the husband pursuant to paragraph 5(c).
The parties, by their solicitors, arrange for the transfer of the former matrimonial home at R from Mr S to the husband, to occur as soon as may be practicable, but not earlier than the (anticipated) dismissal of the ATO’s application for the winding up of O Pty Ltd, upon the following payments by the husband, either at or prior to settlement, each payment being a condition of the transfer:
(a)The amount required by Westpac Banking Corporation to discharge the mortgage registered no. … and the guarantee dated 21 September 2001 by O Pty Ltd
(b)The amount required by the ATO to discharge the debt or debts owing to it by O Pty Ltd, sufficient to achieve the dismissal of the ATO’s current winding up application against O Pty Ltd
(c)The amount of $130,050 owed by O Pty Ltd to A Pty Ltd
(d)The amount owing by the parties and/or O Pty Ltd to Mr S in relation to his role as trustee, including the amount of any commission payable by Mr S to U Company.
The parties share equally:
(a)The amount which the husband is required to pay at or before settlement to achieve the transfer to him of the former matrimonial home less the agreed value of the former matrimonial home, $955,000
(b)The ATO’s costs of the winding up application against O Pty Ltd (to the extend not already paid by the husband pursuant to paragraph 3(b)), and the wife’s costs relating to that application
(c)       The wife’s debt to Mr C, $17,000
(d)       The wife’s debt to Mr Y, $12,371
(e)       The wife’s credit card debt (business use), $4,590
(f)        The wife’s Centrelink debt, $3,439.
After the settlement of the transfer to the husband of the former matrimonial home, the parties, by their solicitors, calculate:
(a)The amount paid by the husband pursuant to his obligations in paragraph 3
(b)The amount referred to in paragraph 4(a) and
having regard to the values in paragraphs 1 and 2, the matters in paragraph 4 and the calculations referred to:
(c)The amount to be paid by the husband to the wife, or by the wife to the husband, to effect a division of the parties’ property 60% to the husband and 40% to the wife
(d)The amount to be paid by the husband to the wife, or the wife to the husband, having regard to the amount in paragraph 5(c), but taking into account also the husband’s debt to the wife of $8,442 payable pursuant to the order of the Honourable Justice Jordan made on 8 August 2006.
The husband pay to the wife, or the wife to the husband, the amount represented by the calculation in by paragraph 5(d).
The husband take all steps and sign all documents necessary to resign as a director of O Pty Ltd.
The wife indemnify the husband in relation to:
(a)The O Pty Ltd directors’ loan account; and
(b)All debts of O Pty Ltd (except the debts owed to the ATO and APP, which are to be discharged pursuant to this order).
The husband indemnify the wife in relation to:
(a) The A Pty Ltd directors’ loan account; and
(b) All debts of A Pty Ltd.
Otherwise, the parties are to retain all assets, liabilities and financial resources in their respective name or possession.
Unless otherwise specified in this order:
(a)each party is solely entitled to the exclusion of the other to all property and assets (including choses in action) in the possession of that party as at the date of this order;
(b)each party is solely entitled to the credit of any moneys in any bank accounts in his or her name;
(c)each party is to forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;
(d)each party is to be solely liable for and to indemnify the other against any liabilities encumbering any item of property or any asset to which that party is entitled pursuant to this order.
The parties are to sign all documents necessary to give effect to this order and in default a Registrar of this Court is empowered to sign all such documents.
The parties have liberty to apply, on short notice, by arrangement with the Associate:
(a)Under the slip rule;
(b)If I should have made any calculation errors in the Reasons for Judgment or this order;
(c)If the parties, by their solicitors, should be unable to agree the calculations required by this order;
(d)If any further machinery or other orders may be necessary to carry out this order or to give effect to the decision; or
(e)If clarification of any part of the decision or order should be required.

AND IT IS FURTHER ORDERED

If the husband should be unable or unwilling to perform the conditions relating to the transfer to him of the former matrimonial home, or if the current ATO winding up application against O Pty Ltd should proceed, any application by the parties pursuant to s 79A of the Family Law Act 1975 be listed before the Honourable Justice O’Reilly as a matter to be accorded priority.
The wife, as soon as possible, deliver up to the husband’s mother, the artwork known as U, and obtain from the husband’s mother’s art gallery a written acknowledgement of the delivery.
The application in a case filed on 7 March 2007 by Mr S, trustee, is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Astor & Astor.

ANNEXURE A
1That both parents shall have equal shared parental responsibility for the two children the elder daughter born May 1996 and the younger daughter born December 1999.
2If they are not otherwise with him, the children will spend time and communicate with the father:
(a)       On each Father’s Day from 9.00 am until 6.30 pm.
(b)       On the father’s birthday:
(i)        if a school day, from after school until 7.00 pm.
(ii)        If not a school day from 9.00 am to 6.00 pm.

(c) Time with both children on each of the children’s birthdays as follows:
(i)If a school day, from after school until 7.00 pm.
(ii)If not a school day, for a period of not less than 4 hours by agreement and, failing agreement, from 2.00 pm to 6.00 pm.

3If the children are not otherwise with her, the mother will spend time and communicate with the children as follows:
(a)       Each Mother’s Day from 9.00 am until 6.30 pm.
(b)       On the mother’s birthday
(i)        If a school day, from after school until 7.00 pm.
(ii)        If not a school day from 9.00 am to 6.00 pm.

(c) Time with both children on the children’s birthdays as follows:
(i)If a school day, from after school until 7.00 pm.
(ii)If not a school day, for a period of not less than 4 hours by agreement and, failing agreement, from 2.00pm to 6.00 pm.

4That each party be permitted to communicate with the children by telephone at all reasonable times, with each party encouraging the children to communicate with the other parent by telephone.
5If any Friday is a public holiday, the children’s time with a parent for the following week is to commence after school on the preceding day (Thursday).
6If the children are with the father for the first half of any holiday period, their time with the father commence on the first Friday following the end of that holiday period, and if the children are with the father for the second half of any holiday period, their time with the father commence on the second Friday following the end of that holiday period.
7That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or any other professional attended by the children, copies of any reports, notices or any other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
8That each parent contact the other parent as soon as practicable in relation to welfare matters affecting the children, such as accident or injury, illness or medical condition.
9Both parties be at liberty to attend school functions, events and extra-curricular activities in which the children are involved.
10As soon as practicable each party complete at his and her own expense a Relationships Australia Parenting Course, in particular, such course as may be available that includes content on communication as parents in the post separation environment.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF899 of 2004

Mrs Astor

Applicant

And

Mr Astor

Respondent

REASONS FOR JUDGMENT

Overview

The parties each seek parenting orders in relation to their children the elder daughter born in May 1996 now nearly 11 years and younger daughter born in December 1999 now 6 years (the children).
The parties also each seek an order for a just and equitable division of their assets following the breakdown of their marriage.
Largely, the parties were able to agree parenting orders, with the exception of the question whether it would be in the children’s best interests to spend equal time with the parties on the “week about” basis, as contended by the husband, or to spend nine nights with the wife and five nights with the husband in each fortnight, as contended by the wife.

Relevant background facts

The husband is 44 years and the wife 38 years.
They commenced cohabitation in January 1993 and were married in April 1994. They separated for about 6 or 8 months between May 1998 and late 1998/early 1999. Final separation occurred in June 2003. The parties were divorced in October 2004.
The period of the parties’ cohabitation and marriage was thus about 10 years.
There are two children of the marriage, two daughters, referred to above.
The parties have each repartnered, the husband with Ms M and the wife with Mr C.

PARENTING ORDERS

It is convenient and appropriate that I deal with the parenting orders first.
The parties, by way of an attachment to their joint case summary, proposed the following by way of consent orders, except for pars 2(a) and 7, requiring determination:
Parenting orders are agreed between the parties except on those matters marked in bold which require the determination of the trial judge.
1That both parents shall have equal shared parental responsibility for the two children [the elder daughter] born May 1996 and younger daughter born December 1999.
2That the children live with the father:
(a)The father submits:    In each alternate week from Friday after school until the commencement of school the following Friday morning.
The mother submits: In each alternate week from Friday after school until the commencement of school the following Wednesday morning.
(b)For half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years.
3If they are not otherwise with him, the children will spend time and communicate with the father:
(a)       On each Father’s Day from 9.00 am until 6.30 pm.
(b)       On the father’s birthday […]
(i)        if a school day, from after school until 7.00 pm.
(ii)        If not a school day from 9.00 am to 6.00 pm.
(c)       Time with both children on each of the children’s birthdays as follows:
(i)If a school day, from after school until 7.00 pm.
(ii)If not a school day, for a period of not less than 4 hours by agreement and, failing agreement, from 2.00 pm to 6.00 pm.
4The children will live with the mother at all other times.
5If the children are not otherwise with her, the mother will spend time and communicate with the children as follows:
(a)       Each Mother’s Day from 9.00 am until 6.30 pm.
(b)       On the mother’s birthday […]:
(i)        If a school day, from after school until 7.00 pm.
(ii)        If not a school day from 9.00 am to 6.00 pm.
(c)       Time with both children on the children’s birthdays as follows:
(i)If a school day, from after school until 7.00 pm.
(ii)If not a school day, for a period of not less than 4 hours by agreement and, failing agreement, from 2.00pm to 6.00 pm.
6That each party be permitted to communicate with the children by telephone at all reasonable times, with each party encouraging the children to communicate with the other parent by telephone.
7The mother submits that this order should only be made in the event that the children live with the father at the time proposed by her but if the children live in a week about arrangement then the order should not be made. If the children are in the care of a parent on a day adjacent to a public holiday, the time shall be extended to include the public holiday. If the public holiday is a Friday, the time will start at the usual time on the Thursday and if it is a Monday shall conclude at the same time on the Tuesday.
8After school holidays, weekly contact shall resume on the first Friday after the holidays if the father has had the care of the children during the first half of the holidays and in the second week if he has had the care of the children during the second half of the holidays.
9That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or any other professional attended by the children, copies of any reports, notices or any other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
10That each parent contact the other parent as soon as practicable in relation to welfare matters affecting the children, such as accident or injury, illness or medical condition.
11Both parties be at liberty to attend school functions, events and extra-curricular activities in which the children are involved.
In oral argument, the parties further agreed in relation to par 7 of the proposal the following alternatives:
If the living arrangements are week about:
7If any Friday is a public holiday, the children’s time with a parent for the following week is to commence after school on the preceding day (Thursday).
If nine nights/five nights:
7If any Friday is a public holiday, the children’s time with the father is to commence after school on the preceding day (Thursday) and if any Wednesday is a public holiday, the children’s time with the father is extended until the commencement of school the following day (Thursday).

In oral argument the parties further agreed to the rewording of par 8 of the proposal as follows, and to the inclusion of par 12 as follows:
8If the children are with the father for the first half of any holiday period, their time with the father commence on the first Friday following the end of that holiday period, and if the children are with the father for the second half of any holiday period, their time with the father commence on the second Friday following the end of that holiday period.
12As soon as practicable each party complete at his and her own expense a Relationships Australia Parenting Course, in particular, such course as may be available that includes content on communication as parents in the post separation environment.
It remains thus for me to determine whether the children should live with the parties “week about”, or on the basis of nine nights with the wife and five nights with the husband in each fortnight.

The material

The wife, in the child proceedings, relied on her affidavit filed on 7 June 2006, pars 349-422; her affidavit filed on 31 July 2006; her affidavit filed on 5 September 2006 limited to pars 139-205; her affidavit filed by leave on 12 February 2007 limited to par 5 insofar as it related to current circumstances concerning the children; and the affidavit of her partner Mr C filed on 11 August 2006 pars 1-5 (insofar as related to the children’s issues).
The husband, in the child proceedings, relied on his affidavit filed on 31 July 2006, pars 166-271.
Each party relied on the two family reports prepared by Ms L, child and family counsellor, dated 25 June 2004 and 30 January 2006, annexed to her affidavit filed on 16 February 2006.

History since separation

From shortly after the final separation (apart from the first fortnight or so, when the children were with the wife) until 20 July 2004, the parties had an agreed shared care arrangement in relation to the children pursuant to which they lived two nights one week and three nights in the alternate week with the husband and otherwise with the wife, totalling, in each fortnight, nine nights with the wife and five nights with the husband.
A consent interim order was made concerning the children on 20 July 2004 after Ms C had completed her first report. The interim order provided, consistently with Ms C’s recommendations in her first report, that the children live with the husband for five consecutive nights in each fortnight and for half of the school holiday periods and otherwise with the wife. Otherwise, the consent interim order provided for special days and other matters largely as set out in the parties’ current proposal.
Ms C’s second report which, as I have said, was dated 30 January 2006, more than one year before the trial, recommended that the care regime set out in her first report should continue, but added that a clause should be included to clarify the commencement of the weekend arrangements following the school holiday periods, for example, that the parent who has the children for the first week of the school holidays should have them for the first weekend following the school holiday period. This recommendation is included as par 8 of the proposal.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975, in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in
s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

The parties’ material in relation to the children was voluminous and very detailed. I do not find it necessary to refer to other than selected parts of the evidence, however, have taken all of it into account. If I should not refer to any specific piece or body of evidence it ought not be inferred that I have not considered it or taken it into account.

The wife’s evidence

The wife and her partner live together and have done so since about October 2006.
The children refer to the partner as their step father.
The wife said, and the husband did not dispute, that during the parties’ marriage she was the children’s primary carer, and referred to the circumstance that, since the final separation, as the children have spent nine nights in each fortnight with her and five nights in each fortnight with the husband, she has continued to have primary responsibility for the children’s care.
The wife said that, since the final separation, initially she was primarily responsible for the costs of the children’s education and living needs, although the husband assisted by the payment of $350 rental for a premises for herself and the children as part of his child maintenance, and between May 2004 and December 2005 paid assessed child support (but no longer the rental); but that since December 2005 she has been solely responsible for the children’s costs because the husband has paid no child support. The husband, in December 2005, reduced the salary which he received from a business operated by him which had the effect of reducing his child support income to negate any substantive assessment; and since then has not paid any rental or child maintenance nor assisted with the payment of the children’s school fees.
The wife referred to communication difficulties between the parties in relation to the children’s activities and needs and to various instances in the past of the husband not caring for the children personally while spending time with him but leaving them in the care of others, initially a nanny and more recently his partner. The wife expressed concern that after the conclusion of the proceedings the husband may be likely to adopt a similar pattern.
The wife said that the husband has continually “harassed and intimidated” her about an equal shared care arrangement insisting that “It is fair, I want equal time with the children”, which she opposes because of his working hours and historical reliance on others to care for the children asserting that he has “never participated in the children’s lives to the extent that he now proposes”.
The wife asserted that the husband has little familiarity with and regard for the children’s extra curricular activities and needs. She asserted also that the husband has involved the children in adult issues, giving the example of the younger daughter saying to Mr C, the wife’s partner, to the effect “Mum cheated with you”, saying, when asked, that the source of the information was the husband.
The wife referred to the husband’s “anger and aggression” and her observation as to the effect of this on the children, expressing concern that the husband’s partner, who is only about 22 or 23 years, may not have “the maturity to deal with issues particularly as the girls get older”.
The wife said that she is not confident that the parties’ communication difficulties will improve after the conclusion of the proceedings particularly because of mistrust caused by several of the allegations made by the husband against her in the parties’ property proceedings.
She said that she does not believe that it would be in the children’s best interests to spend equal time with each of the parties, describing the elder daughter as a worrier who “gets worked up” before spending time with the husband, which the wife said has led to an “assumption” on her part that the elder daughter wants to spend more time with her. She said that the younger daughter is “well settled” in the current pattern of nine nights/five nights and that although the younger daughter has said to the effect “It would be fair to have 50/50 or equal time”, she uses those expressions because she has learned them from the husband, not having the maturity to understand such concepts.
The wife said that as the elder daughter is getting older she has been “less excited” at the prospect of going to the husband’s home, although conceded that this may be related to her wanting to spend more time with her peer group friends, which the wife said is “more readily facilitated at my home”, the elder daughter having reported to her to the effect that when spending time with the husband “Daddy tells me that I can’t see my friends because I have to spend time with him”.
The wife expressed concern that while the children are in the husband’s care on school days (presently three school afternoons in each fortnight, being a Friday, Monday and Tuesday) the husband’s realistic need to attend to his business (that of property developer) will (as has occurred in the past) result in his not being fully available to the children (for example, even if he is at home and not at his office, the business demands his attention to telephone calls in business hours), whereas the wife (who operates the business of a rental store) can so arrange her working hours to be wholly free for the children on each school day afternoon. The wife expressed concern also that in the husband’s household the children’s homework may not receive proper attention by the husband and proper assistance by him so that it would be in the children’s best interests to live with her for most of the school week nights.
She said that the elder daughter is showing signs of anxiety “about arrangements” and expressed concern that “This will get worse if she is separated more from my household” and “If the time at her father’s increases, this anxiety will increase”, and that because the current arrangements have been in place now for a considerable period of time the children “are used to it and in a pattern” such that they “may be adversely affected by any change in that routine”.
The wife referred to the parties’ habit of using a communication book which she said she did not believe was “adequate for communication related to the very many things that will arise about the children’s health and social activities and this will cause uncertainty and therefore anxiety to the children”.
Otherwise, the wife’s affidavit material provided an analysis from her perspective as to the s 60CC statutory factors relating to assessment of the children’s best interests and made clear her view that already, by spending five nights in each fortnight with the husband, the children are spending substantial and significant time with him, the continuation of which arrangement in her view would be in the children’s best interests.
The wife’s affidavit material contains numerous examples of events concerning the children to demonstrate her particular concerns, however, I have endeavoured to refer to the concerns without unnecessarily setting out all of her many examples in support of those concerns as documented in detail in her affidavits.
In cross examination by Mr Jordan of Counsel, for the husband, the wife readily acknowledged that the husband “is a good father”. She said however that the “biggest downfall” between herself and the husband is communication and that in her belief, because the parties have been reliant upon a communication book, if the children were to spend an additional two nights in each fortnight with the husband, the parties’ communication difficulties may be likely to impact upon the children particularly in relation to the children’s activities, giving the example of birthday parties and other activities. She said to the effect “We struggle to communicate as it is” and said that their inability to communicate has had the result that in the past the children have “missed some things”, meaning, arranged activities apparently not effectively communicated by means of the communication book.
The wife said that communication by means of the communication book has been “almost our only source of communication, except for texting”, and that in her view the communication book method is “not working” and “not the best way to communicate” but was unable to suggest a viable alternative method of communication.
An example that was given of a communication mishap in the past was by reference to par 227 of the husband’s affidavit. Apparently, the children’s school had arranged an activity at Seaworld, to which parents were invited. The husband said, in his affidavit, that the younger daughter had told him that she wanted the husband to attend that activity. However, the wife did not permit that because the husband had not communicated to her that the younger daughter had said to the husband that she had wanted him to attend, and the wife, not knowing this, had thought that the child’s attendance at this activity would impact upon “her time” with the younger daughter as contemplated by the interim orders then in place.
Candidly, the wife said that, if the husband had telephoned her and communicated to her that the younger daughter had requested that the husband attend, then readily she would have agreed to the request, so that, in essence, the parties’ inability to communicate with each other about the children’s requests and needs was problematic and likely to remain so.
The wife said that, if the children were to spend “week about” time with each parent, she did not believe that she would need to change anything in relation to her parenting, or approach to parenting, seeming to blame the husband for the parties’ communication problems (for example, she said that in 2003 and 2005 the husband travelled overseas without notifying the wife that he was leaving the country).
The wife said however that, if I were to order “week about” time, she would “do her best to make it work”, and would encourage the children to attend increased time with the husband, but emphasised that, in her view, it is a pity that there could not have been an updated family report in January 2007 (as her solicitors had endeavoured to arrange - see ex 12), but which she says was not agreed to by the husband. The wife said to the effect that despite the elder daughter reporting to Ms C (first report, par 60) that “it would be best for her and [the younger daughter] to spend alternate weeks with each parent”, because “it is fair and even”, and (second report, par 47) that the elder daughter would like to increase her time with the husband, if there had been current interviews the elder daughter would have expressed to Ms C that, having regard to her age and interests now, she presently “does not want to spend less time with me”. In relation to the younger daughter, the wife said that although she may have expressed to Ms C (second report, par 66) views such as “half/half” as what she wanted, in the wife’s view the husband is “so focused on fifty/fifty that he can’t see the children’s issues” and that she has received feedback from the children that he had told them to tell the family report writer “Just tell the lady you want fifty/fifty”, in the hope that the family report writer would record this as the younger daughter’s view, adding that the husband “is very single-minded about what he wants”.

She said that the children have “discussed” week about care with her but that the elder daughter has never said to her that she would like a “half/half” arrangement; and that although the younger daughter “talks about fifty/fifty”, saying that “fifty/fifty is fair”, she is still young and “does not know what is fair!”
Mr Jordan squarely put to the wife to the effect that “in many respects” there would not be a lot of difference between the children spending equal time with the parties, as opposed to the wife’s contention that the parenting order should provide for the continuance of the existing regime. The wife responded, carefully I think, that “on paper” such an arrangement “may not look different” but that it is necessary to consider “all of the changes in the children’s lives” that an equal shared parenting regime would entail. When pressed by Mr Jordan as to the “practical difference” that a “seven/seven” as opposed to a “nine/five” regime would entail, the wife referred to the parties’ communication difficulties, using the example to which I have already referred of the children missing arranged activities because of the communication difficulties; and expressed concern as to the husband’s unavailability for the children because of his obligation to “juggle his work responsibilities” so that, in an “equal time” regime, in her view there would be “more risk” of other people looking after the children rather than the husband personally. The wife expressed concern that the husband’s work commitments have the effect that it would be difficult for him to collect the children from school, and referred to past examples of the husband picking the children up from school but then “dropping them at home in the care of other people and then going back to work”. The wife made the point that her work commitments are such that she is able to arrange to be free for the children on school days from 3pm onwards, in essence because she has a manager employed to run the business which she operates.
The wife acknowledged that the children enjoy activities in which the husband engages the children, including jetskiing and a recent holiday in the Whitsundays, and said that in relation to her ability to arrange comparable activities for the children “Sometimes the kids might think Mum’s a bit boring”.
In conclusion, when asked whether, if ordered, she would support a “week about” arrangement, the wife responded “Of course I would!”
The mother’s partner provided a short affidavit, and was cross examined. He said that his relationship with the wife is a committed one and that he has “a good relationship” with the children.
The mother’s partner is divorced with two children, 11 years and 8 years, who live in Brisbane and with whom he spends time on alternate weekends and for four holiday weeks per year.

The husband’s evidence

The husband and his partner Ms M do not live together. The husband’s partner however visits and stays in the husband’s household most weekends and on the occasional week night. The husband and his partner have what the husband described as a close relationship, but as yet have not made any commitment, according to the husband “because of my matrimonial matters and the children are my priority”. He said however that, over time, he and his partner “probably” will enter a permanent relationship.
He said that the children “get on well” with his partner.
The husband alleged (as the wife had alleged against him) that the wife had involved the children in adult issues, giving the example of the younger daughter saying to the husband’s former girlfriend Ms H “[Ms H] is not ugly, she is beautiful”, saying that when asked why she had thought Ms H ugly “Mummy told me she was”; and of the elder daughter asking him questions such as “How much rent are you paying Daddy?” saying “Mummy wants to know”.
The husband said that, after the final separation, the children lived with the parties in a shared care arrangement “from the outset”, which according to his diary commenced on 3 July 2004, about a fortnight after the final separation.
The husband said he has no animosity towards the wife’s partner and “gets on well with him”.
The husband agreed that, before the final separation, the wife had been the children’s primary carer and asserted that until about March 2004, when the wife commenced the current proceedings, the children spent “almost equal time” with the wife and himself (again, referring to his diary) but that since the commencement of the proceedings (March 2004) the wife had told him he “could no longer have the girls with me as much”. (The wife denied this allegation).
As to the parties’ communication difficulties, he said that when the wife “has her way” they communicate very well and has “often” said to him “Shared parenting is about communication. All I have to say is that I can’t communicate with you and you will never get the kids!” (The wife denied this allegation). He annexed to his affidavit (annexure M) an email dated 9 March 2004 from the wife to him evidencing polite communication concerning the children before the commencement of the proceedings (12 March 2004).
As to the allegation of his use of a nanny or nannies to care for the children whilst with him, he said that in the post separation period both parties used the nanny which they had retained as a live-in nanny before the final separation when the wife had suffered from post natal depression and that after the separation “The nanny would travel between our two houses until the wife said she did not want the nanny at her house”. He said that he used the nanny “mainly to do the housework and some cooking” while he looked after the children, did homework with them and so forth and that he had kept the nanny on for a while after the separation partly to give the children “continuity”.
He said that, following Ms C’s first report, which was critical of his parenting in some respects, he acted on Ms C’s advice by ceasing to use the nanny; re-organised his business work schedule to collect the children after school; and attended a Relationships Australia course with the wife.
He said that, when the children are with him now “I am the one who looks after the children’s needs”, although “on rare occasions” he relies on his mother and other family members.
He said that, because the children “have thrived in my care”, he believes it would benefit the children “emotionally and practically” to extend the children’s time with him “by an extra two nights each fortnight”.
The husband denied many of the allegations made by the wife against him, for example, leaving the children alone when sick; making adverse comments to the children about the wife and her partner; and saying to the younger daughter to the effect “Mummy cheated with [her partner]”.
In relation to the children’s extra curricular activities he said that when the children have been with him there have been only one or two occasions when activities have been missed, but for good reason, for example, on one occasion there had been a planned family event which, as the children’s father, he considered the children should attend.
As to the parties’ use of a communication book, the husband said that often he is “told” by a note in the book by the wife that particular decisions “have been made” without any discussion by her with him and that instead of, as he had expected, the communication book being used to inform each other about the children’s welfare and as a “reminder” instrument, the wife has used it as a “substitute” for face to face communication and joint decision making concerning the children, which has disappointed him, the wife demonstrating by such use of the communication book that she does not “acknowledge my contribution as a parent” but rather has denigrated his ability to look after the children “as far as to tell me what I can do and cannot do while they are with me”.
He said that one of the reasons he would like week about care is that the children often have multiple activities that fall during their time with him so there is very little time to “just spend time together as a family” instead of “spending most of the time in transit to and from activities”, inferring that equal time would allow a better balance in relation to the time the children spend with him as to their activities on the one hand, and time “as a family” on the other hand. The husband demonstrated in his affidavit (par 207) knowledge as to the children’s extra curricular activities between Friday afternoons and Tuesday afternoons (for example, Friday 4-5pm elder daughter dance; Saturday 9-10am younger daughter tennis; Saturday 10.30-11.15am elder daughter cheerleading; Saturday 11-11.30am younger daughter tap dancing; Monday 4.30-5.30pm younger daughter jazz ballet; Tuesday 3.15-4.15pm younger daughter Auskick; Tuesday 4-5pm elder daughter maths tutoring).
He said that both children have told him they would like to spend more time with him, and that the elder daughter has often said to him she would like more time to do her homework with him.
He said that he believes (unlike the wife) that many of the parties’ communication and consequent problems will resolve once the proceedings are finalised “because there have been lengthy periods since separation when [the wife] and I have been able to co-parent very effectively and without friction”, and that in the past the “times of friction” usually have been coincidental with “spikes” in the litigation process.
He said that he is able to be flexible in his work arrangements to be available for the children after school, in the evenings and at weekends and that in relation to the children’s past complaints of his “spending time on the telephone with work” instead of spending time with them, largely he has ceased this practice by the reorganisation of his work activities.
As to the impact on the children of equal time, he said that he believes the children would not be less settled but would be “more settled because they would be able to follow a more structured routine”, including “eating together, watching television, playing and doing day to day usual ordinary family things” so that the children would have “the sense of being part of a family rather than being visitors in my home” which, he believes, would give them a “depth of relationship that is very important to them for their emotional welfare”.
He said that he believes that both he and the wife have “sufficient responsibility as parents” to place the children’s needs ahead of their own needs.
Otherwise, the husband also included an analysis from his perspective as to the s 60CC statutory factors.
In cross examination by Mr Forrest of Counsel, for the wife, the husband said that “if the Court says five days I will stand by that”, but that he believes that the “extra two days” would be in the children’s best interests.
He said that the children have discussed “fairness” with him, and that he has said to them “Fairness would be an equal time with myself and [the wife]” and also has said to them to the effect “Equal time is fair”, but emphasised that by “fairness”, he referred to “fairness to the children, not me!” He said that the younger daughter “has the concept of fairness” and that she is the one (not him) who “brings it up all the time”. He said that the elder daughter “does not bring it up” but has said to him “Mum says you’re lucky to have us as much as you have”. He said that such conversations with the children have not occurred “consistently and repetitively”, but only “about three times”, retorting to Mr Forrest “It’s not as big a deal as you’re making”.
He acknowledged that, before the children’s interviews with Ms C for the second report, he had said to the children to the effect that “if they wanted half/half, they could ask the lady”, but emphasised that he said this to the children in response to their asking him “What should I say to the lady?”. He said he had been aware that the children had been trying to please him, but said he had emphasised to them that they should “tell the lady” the truth, as reflected in Ms C’s second report (par 52):
52She [[the elder daughter]] states that her father told her to just tell the truth and “If you wanted half/half you could ask the lady if you could have it. He said it is all up to you and [the younger daughter].”…

[original italics]

He said however that he is “much more mature now” than at the time of the interviews for the family reports (both first and second).
In relation to his work, he said that in order to be available to the children he now refers his (business) telephone calls to another staff member, which he is able to do between 3pm and 5pm on school days; and that in any event he now has fewer work related telephone calls because he has “tried to [develop] fewer [opportunities]” by more use of his staff and now has improved “strategies and planning” allowing him more free time to be available to the children than at the time of the interviews for the family reports.
The husband denied that in December 2006 he had failed to agree to interviews for an updating family report (ex 12). He said he was aware that that there was to be an updating report, and that he was “waiting to be advised a date” according to Ms C’s availability. He denied having been told of the tentative date 17 January 2007, and said that as the children had been with him for nearly the whole of January (5 January until the resumption of school) he would have attended with the children if told a date. He said that he and the children had been to the Whitsundays for part of January, which (although he was uncertain) may have been in the period 17-20 January, but he had not received any message from his solicitor of any tentative arrangement for interviews on 17 January 2007.
The husband said that he had always paid assessed child support and “never less than $400 per month” and “up to $679 per month at times”. In relation to the reduction in December 2005 of the salary which he drew from his business, and his non contribution to the children’s school fees, he said that at the time his business was suffering liquidity problems and that he had reduced his salary so there would be more funds to pay creditors, not to achieve the result of a lower or nil assessment of child support payable, and that this course was necessary to save his business and thus his source of income. Mr Forrest put to the husband that, if the children were to be with him for two additional week days in each fortnight, would he not “struggle” with the competing demands of time to be spent at his business, especially to provide for the financial needs of the children, and time with the children, which would cause him to be away from his business. The husband responded to the effect that he would work longer hours in the week the children are not with him, and that in any event he has been training his staff to take on more responsibility, adding “We’re getting smarter at the way we’re restructuring things at the moment”. He said that in his view, if there were to be an equal time order, there would be “no financial impact” on the wife, because he and she equally would be sharing the children’s expenses.

The evidence of the family report writer

As I have mentioned, the family report writer, Ms C, provided two reports, dated 25 June 2004 and 30 January 2006.
I have referred already to Ms C’s recommendations, in both her first report and her second report.
Neither Counsel sought to cross examine Ms C.
In these circumstances, I do not find it necessary to set out, to any great extent, large tracts of Ms C’s two lengthy reports. I will however refer to the children’s views, as expressed to her; to some of her observations as to the parties’ communication difficulties and some other selected matters; and the conclusion to her second report.
It ought not be inferred, if I should not refer to any specific part or parts of Ms C’s reports that I have not taken them into account.

First report – children’s expressed wishes – the elder daughter

In her first report, Ms C did not refer to any wishes expressed by the younger daughter, possibly because of her age, then 4½ years, but described her (par 72) as “a most delightful young child” and “an active little girl” who preferred to play with toys rather than engage in conversation regarding her family. She said also (par 74) that the younger daughter “presents as a robust child who asserts on her own behalf when playing with her older sister”.
As to the elder daughter, Ms C said:
60.[The elder daughter] believes it would be best for her and [the younger daughter] to spend alternate weeks with each parent because “it is fair and even”. “I am trying to make it easy for them”.
61.When describing her experiences at her mother’s home, [the elder daughter] states that “I like spending more time with Mum. I don’t know why. I just like spending time with her”. …
She described the elder daughter, who had recently turned 8 years at interview (unnumbered par above par 51) as “an attractive, articulate and polite young girl” who “impressed as being more mature than her years”. Ms C then said of the elder daughter (par 70):
70.The report offers that at the age of eight years, [the elder daughter] is at the developmental stage in which she has the cognitive ability to grasp the content of the interparental dispute. I believe she is coping with the tension this conflict generates within her by trying to align equally with both parents [in] order to please them. She is prepared to subjugate her own developmental needs in order to appease them.

Second report – children’s expressed views

Elder daughter

47.[The elder daughter] explains that she wanted to increase her contact time with her father, however her mother said he did not deserve to spend more time with the children because his girlfriend takes care of them and they have babysitters. …
52.She states that her father told her just to tell the truth and “If you wanted half/half you could ask the lady if you could have it. He said it is all up to you and [the younger daughter]”. She states that she enjoys her time with her parents more if their partners are not there.
56.[The elder daughter] tells me that she wants to spend equal time in the home of both parents because this would be fair to them both. She is not so sure she would want half/half if her parents were to magically stop their fighting. “If we had half/half and the fighting didn’t stop she would probably be sad”.

Younger daughter

61.… [The younger daughter] thinks her dad says it should be half/half and her mother says the same thing. She states that she misses both parents equally when at the home of the other parent.
65.In her opinion, if things stayed the same she would feel both happy and sad, but a bit more sad. If things were to change, she would also be sad because they would be changing.
66.[The younger daughter] tells me she wants four/four, or half/half. She believes both parents want this also.

First report – communication difficulties and some other selected matters

In her first report, Ms C made the following observations as to the parties’ communication difficulties:
85.It would be reasonable to suggest that the parents managed to communicate regarding the needs of the children immediately following the separation, however distrust and conflict have now resulted in their inability to continue to negotiate.
88.The report offers the view that an established history of effective communication and cooperation between the parents would be necessary prior to consideration being given to the children spending equal time in both households. Further, that [the husband] would need to be fully available to spend time with his daughters both after school and during school holidays.
91.It would also seem that [the wife] is available to meet the children’s needs and after school requirements more effectively than [the husband] at the present time. Further, that for the girls to spend more time in the care of their mother would reflect their historical experiences of care.

[bold emphasis added]

Second report – communication difficulties and some other selected matters

39.When interviewed together, the parents each tried to convey their respective opinions to the other and spoke in pleading terms in their individual endeavours to have their accounts accepted by the other. They tended to talk simultaneously and while neither appeared to be unduly angry, they had polarised views of most issues and events. They seemed to talk over each other and neither appeared able to be heard.
43.Toward the end of the interview, they managed to tell each other their opinions regarding the children’s future educational requirements and had similar views.
44.In my opinion both [parties] are competent and loving parents to their children. However on the basis of their described experiences during the couple interview, the Report is challenged to accept that they have managed to cooperate since the completion of the last Report.

[bold emphasis added]

Second report - conclusion

In Ms C’s second report, under the subheading “Summary and Recommendations”, she said:
69.The couple’s parenting relationship continues to be characterized by poor communication and conflict.
72.It would appear that they managed to agree regarding the children’s health issues on one occasion and during the couple interview, they managed a brief conversation regarding the children’s educational requirements about which they appeared to have similar views.
73.The Report offers however, that in the main, the parent’s capacity to communicate effectively is limited. For them to be able to agree on issues when their perceptions of most events appear to be polarized offers little hope that they could manage to co-parent their children cooperatively. They have not managed to do so since their separation in June 2003.
74.Should [the wife’s] account be correct that she is the more available parent, it would seem that she would be more able to respond to the practical needs of the children. From the children’s accounts, [the husband] is more available than he was previously, however it would appear that the nature of his occupation requires him to undertake some business tasks while the children are in his care.
75.Both parents have entered into new relationships. [The wife] commenced her relationship with [her partner] prior to the couple’s separation. From her account the relationship is stable and satisfying. [The husband] ended his relationship with [Ms H] and has commenced a relationship with [Ms M] who is twenty-one years his junior and is in the early stages of her career. From his own account, his relationship is less established. It would be therefore reasonable to suggest that there are more certainties in the mother’s household than in the father’s household at the present time.
76.[The elder daughter] is clearly aware of the parent’s issues and is distressed by the parents involving her in their dispute. It is not in the interests of her emotional well being for this to continue. It would seem that she tries to remain equidistant from both parents in an endeavour to be equally fair. From both parents’ accounts she is a responsible and high achieving child who wants to please both her mother and father. [The elder daughter’s] comment that she is the “peacemaker” in the family is concerning. While she adopts this role, she is unlikely to be sufficiently able to focus on her own developmental needs. It is likely that she will feel more settled and less anxious if she is no longer required to undertake this role.
77.[The younger daughter] appears to be to some extent protected from the parents’ issues by the presence of her older sibling. She may also be more emotionally robust than [the elder daughter]. She appears to enjoy a close sibling attachment to her older sister. She too is attempting to convey that she desires a fair outcome for her parents.
78.The Report offers that the children love both parents and want to please them equally. It is likely that their attempts to provide a solution to the parents’ dispute are a reflection of the fact that the parents are unable to do so. [The elder daughter] states that she is less clear that a shared care regime would be her preference if the conflict between the parents were to cease.
79.The Report offers that [the children] appear to be attached to both parents and enjoy their experiences in both parental homes.
80.It is the opinion of the writer that the children’s exposure to the parents’ conflict is a major concern. It is the conflict, rather than the contract regime that will have a major impact upon their development.

[bold emphasis added]

The parties’ submissions

Counsel each provided written and oral submissions, all I which I have carefully considered, whether or not I make specific mention of a particular submission or any particular part of the submissions.

Mr Jordan of Counsel, for the husband

The thrust of the husband’s case, as put by Mr Jordan of Counsel, is that whilst it is accepted that it is invariably the view that for a shared care arrangement to work there needs to be a high level of communication between the parties, it is illogical to suggest that the parties’ communication difficulties concerning the children’s arrangements and needs are not so great as to indicate against shared care on the basis of nine nights/five nights as presently existing, and as sought by the wife, but are so great as to indicate against equal time, which is only two nights per fortnight extra time with the husband than at present. Mr Jordan emphasised that, although, as is accepted, shared care should usually be considered only if the parties “get on well”, the context of this particular case is that the parties already have a shared care arrangement by the existing nine nights/five nights regime so that to increase the children’s time with the husband to equal time is only to “tinker” with the existing shared care regime. Thus, arguments based upon the parties’ communication difficulties, in the context of this particular case, lose force. Mr Jordan put the case, as the wife acknowledged, that even the existing regime amounts to shared parenting.
Mr Jordan referred to the children’s expressed views, emphasising that the elder daughter had said to Ms C (first report, par 47) that she wanted to increase her time wither father, and (second report, par 52) that her father had told her “just to tell the truth”, so that weight should not be lessened to the elder daughter’s expressed views on the basis that the father had influenced the expression of her views. In light of the existing regime, logically “increased time” with the father would reflect an increase to a week about arrangement.
Mr Jordan observed that in a week about arrangement the number of changeovers would not increase; and would have the benefit of the children not having a “split” school week in each alternate week.
He referred to the decision of the Chief Justice (then Chief Federal Magistrate Bryant) in C v O’N [2003] FMCAfam 154 as authority for the proposition that, despite differences between parties, shared care may still be in the children’s best interests. In that case, it was determined that the children’s best interests would be served by week about equal time (7pm Sunday to 7pm Sunday) despite the circumstances that there had been verbal and physical altercations between the parties (par 22); resentment in one of the parties (par 22); and inclusion in the family report of the observation that “one of the difficulties with shared care is that usually for shared care to work in the children’s best interests it is necessary for the parties to co-operate and facilitate this arrangement” (par 32). However, taking into account all relevant factors, and in particular “the children’s excellent relationship with both parents and desire to have both parents playing an important role in their lives”, Her Honour concluded on balance in favour of an equal time shared care regime. See the reasons at par 62-67.
Mr Jordan (as was appropriate) did not seek to make any factual comparison between that decision and the present case, but rather referred to it as showing that cooperation and communication difficulties do not always lead to the result that equal time will not be ordered if for other good reason equal time is found to be in the children’s best interests.
Mr Jordan referred also to the decision of Ryan J (then Federal Magistrate Ryan) in T & N [2001] FMCAfam 222, at par 93, in relation to the factors that a court should “particularly examine” in cases where a party seeks orders that share a child’s time equally between parents, to demonstrate, it would appear, that the matter of the parties’ capacity to communicate on matters relevant to the children’s welfare is but one factor to be considered. In the particular circumstances of this case, I will set out par 93 in full:
93.The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
Mr Jordan submitted (written submissions, par 31) that in many respects, communication in this case has been used as a “cover-all” phrase, where the evidence as to communication breakdown causing detriment to the children is scant:
31.In many respects, in my submission, communication has been used as a “cover-all” phrase to deal with the resentment and the animosity between the parties rather than dealing particularly with areas where communication breakdowns have caused a detriment to the children. In my submission the evidence on that is really quite scant.
Mr Jordan referred to the circumstance that, on the husband’s evidence, he has matured even since Ms C’s second report (30 January 2006) and that Ms C did not have the advantage of hearing or knowing the husband’s evidence as to the husband’s current working arrangements which have given him more flexibility to be available for the children when with him.
Mr Jordan referred also to the circumstance that Ms C’s report preceded the legislative amendments which commenced on 1 July 2006, submitting that whilst there is nothing per se in that sequence, Ms C’s observations and recommendations were “but a piece of evidence” to be taken into account when performing the statutory function of considering the children’s best interests, particularly having regard to the obligation under s 65DAA, if a parenting order is to provide that children’s parents are to have equal shared parental responsibility for them, the Court must consider whether spending equal time with each of the parents would be in the children’s best interests and reasonably practicable and if it is to consider making an order providing for the children to spend equal time with each of the parents.
Mr Jordan further submitted (written submissions, pars 54 and 55) that “This is exactly the type of case that the legislative change was brought in for” and “It is hard to imagine a case more suited to the legislative changes”.
He submitted, by way of summary (written submissions, par 47), that a week about arrangement would be in the children’s best interests and would reflect the children’s views, especially the elder daughter’s views; the “extra two days per fortnight” would allow the husband to be further involved in the children’s life particularly their day to day life at school; there would be no further number of changeovers; the children’s alternate school week would not be disrupted by a mid-week change of the children’s living arrangements; and it would be a “neater, simpler arrangement”.
Otherwise, Mr Jordan analysed the evidence relating to the s 60CC statutory factors, to which I need not refer in detail.

Mr Forrest of Counsel, for the wife

Mr Forrest relied on Ms C’s opinion (first report, par 88) that an “established history of effective communication and cooperation between the parents would be necessary prior to consideration being given to the children spending equal time in both households”; and (second report, par 73) that “the parents’ capacity to communicate effectively is limited” and that their circumstances offer “little hope that they could manage to co-parent their children cooperatively” in that they “have not managed to do so since their separation in June 2003”, as very relevant matters against equal time in light of s 65DAA(5)(c) of the Act, requiring the Court to have regard to (amongst other matters) the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement for the children to spend equal time with each of the parties.
Mr Forrest submitted that, having regard to the evidence, I could not be comfortable that “things would improve” if there should be equal time, nor that the parties have or will have the capacity to “resolve difficulties that might arise” if the shared care arrangement should be on the basis of equal time.
He submitted that having regard to s 65DAA(5)(d), the impact that an equal time arrangement would have on the children would be detrimental, in that it is likely they would become “unsettled”, although, properly, Mr Forrest conceded that there is no expert evidence in this regard, and his submission thus was based upon the wife’s subjective opinion in support of her own case, contending nonetheless that it is a valid opinion from the party who has predominantly cared for the children since the final separation (and indeed during the parties’ marriage).
Mr Forrest was critical of the husband’s case as motivated by a notion of “his right” to equal time, based on the wife’s evidence, rather than being motivated by a concern of what genuinely may be in the children’s best interests.
He submitted that little weight should be given to the children’s expressed views on the basis that the husband influenced the expression of those views, acknowledging that the children “were trying to please him” when asking him as to the views which they should express to the family report writer, thus rendering the expression of the children’s views as unreliable. He analysed those parts of Ms C’s reports (set out above) which referred to the expression of the children’s views and referred to Ms C’s concerns (first report, par 70) that the elder daughter then was at the developmental stage at which she had the cognitive ability to “grasp the content of the interparental dispute”, that she is “trying to align equally with both parents [in] order to please them” and “is prepared to subjugate her own developmental needs in order to appease them”, submitting (written submissions, pars 10-14) to the effect that the husband had put “undue pressure” on the children to achieve the result which he desired, referring to the elder daughter’s statement to Ms C (second report, par 56) that she was not sure that equality of time was what she would want if the parties stopped fighting; and in relation to the younger daughter referring to her apparent but mistaken belief (second report, pars 61 and 66) that both of the parties wanted the children to spend equal time with each (this plainly not being the wife’s wish at all).
Mr Forrest thus submitted that the children’s wishes “at least as recorded by [Ms C]” should attract very little weight and that in the absence of an updating report the Court is left with “conflicting evidence” from the parties as to their perceptions of the children’s current wishes.
Mr Forrest submitted that the husband “did little to assist” the obtaining of an updating report, when the opportunity was available to him, the inference being available that the husband was conscious that further reporting of the children’s views and other relevant matters at that point “would not have assisted his case”.
He submitted that changing the current arrangements, in place since mid 2004, and effectively in place since mid 2003, would be “unsettling for this family” and would require “far more effective communication between the parties than currently exists”; and that “considering past capacity to communicate as well as current capacity is a good guide to likely future capacity”, referring in detail to those parts of Ms C’s reports relating to the parties’ limited capacity to communicate offering “little hope” that the parties would or could co-parent the children cooperatively.
Mr Forrest submitted that it is unlikely that the conclusion of the parties’ financial dispute would make any “appreciable impact” on their capacity to communicate in relation to the children and their needs.
He referred to the husband’s poor attitude to the responsibilities of parenthood demonstrated by his commitment to his work and his “history of lack of child support in the last year” as matters of concern relating to his attitude to the responsibilities of parenthood, pointing in particular to his failure to pay or share the cost of the children’s school fees, which circumstance, it was submitted, would not be alleviated if, by the incidence of equal parenting time, the husband would be required to “reduce his working hours more”.
He referred to the absence of evidence by the husband’s partner, Ms M, who plainly was available to give evidence, but had not, as leading reasonably to the inference that the husband did not consider that any evidence which she could give would assist the husband’s case.
He submitted that the children’s best interests do not “require” an increase in the amount of time they spend with the husband, so that the present arrangement should continue whereby the children spend more time with the wife “who historically has been the principal provider of their care by family arrangement and agreement”.
Mr Forrest submitted that the “maintenance of the stability” provided by the current arrangement for the children is less likely to lead to further proceedings than a change to arrangements which are “untested” and “more likely to introduce instability into the lives of the children”.
Otherwise, Mr Forrest also analysed the evidence relating to the s 60CC statutory factors, to which I need not refer in detail.

Consideration of the statutory matters

Parental responsibility

The parties have agreed that they should have equal shared parental responsibility for the children.

Equal time/substantial and significant time

The consequence of the parties’ agreement that they should have equal shared parental responsibility for the children is that I must consider whether the children spending equal time with each of the parties would be in the children’s best interests and reasonably practicable, and if it is, consider making an order to provide for the children to spend equal time with each of the parties.

Both parties have repartnered. Mr Forrest, for the wife, conceded, somewhat generously I think, that presently the wife may have greater financial support from her current partner than the husband has from his current partner, who is very young. In my view, this generous concession was unnecessary, and does not affect my consideration of the s 75(2) factors. Indeed, Mr Jordan, for the husband, did not suggest any such result.
The parties have not provided to the Court, as required by Rule 19.04(3) of the Family Law Rules 2004 (or at least have not placed into evidence), a written notification of the parties’ actual costs, both paid and owing, up to and including the trial. However, it is plain that each party will have incurred significant legal costs, by way of personal liability, to be met upon the conclusion of these proceedings.
The husband will have a personal liability to A Pty Ltd for its directors’ loan account debt of $301,373; and the wife will have a personal liability to O Pty Ltd for its directors’ loan account debt of $193,400. There is disparity here, in respect of which neither Counsel made submissions, possibly because, initially, both Counsel anticipated that the directors’ loan accounts for both A Pty Ltd and O Pty Ltd would be joint debts in the “Liabilities” portion of the pool.
As I have already explained, the preseparation component of A Pty Ltd’s directors’ loan account debt was $102,326 and O Pty Ltd’s $143,282. The post separation components, A Pty Ltd $196,729, and O Pty Ltd $50,118, were, as I have found, largely comprised of amounts which the parties should share equally, with the exception of about $48,000 of A Pty Ltd’s post separation directors’ loan account, for which the husband should be solely liable. If this amount is deducted from A Pty Ltd’s total directors’ loan account amount of $301,373, the balance amount of that debt for which the husband will be responsible to pay A Pty Ltd, representing debt which the parties should share equally, is about $253,373. The amount for which the wife will be responsible to pay O Pty Ltd, $193,400, is wholly debt which the parties should share equally, so that there is imbalance as to the difference between $253,373 and $193,400, about $59,973, or $60,000 (rounded). As I have previously explained, these directors’ loan account debts have been excluded from items 2 and 3 in the Schedule, and thus not deducted as Liabilities in the Schedule.
The husband has had the use of the former matrimonial home since about August/September 2005, whilst the wife has been required to pay rent. Mr Jordan, for the husband, argued that this should not warrant a s 75(2) adjustment, because the husband has, during this period, about eighteen months to the trial date, effected significant repairs and maintenance to the former matrimonial home. The husband said (affidavit, par 138) that the house had been unoccupied for about three years and had deteriorated over that time. He said (par 142) that when he moved back into the property, he thoroughly cleaned it, cleaned up the garden, brought it up to scratch and repaired a lot of things that needed repair. He said that he also made improvements to the property including further kitchen renovation, electrical work, painting and other work, and (par 144) that he estimates the costs incurred in that exercise would have been about $20,000, including about $5,000 for his own labour, as expense instead of paying rent.
It is not known what amount of rent the wife has paid in this equivalent eighteen month period. However, having regard to her rental in 2003, about $350 per week, such would equate to about $18,200 per year, or over eighteen months, $27,300. It may reasonably be anticipated that the wife’s rental for herself and the children in the eighteen month period between about August/September 2005 and the date of the trial may have been more than the amount of the rental paid in 2003.
The wife said, that in her view, the former matrimonial home would have attracted about $800 per week rental since August/September 2005, which I would interpret as the value to the husband of about $62,400 in value for his occupation of the former matrimonial home. However, there is no evidence that, if the husband had not moved back into the former matrimonial home, the parties may have rented it out (whether at $800 rental or any other amount) rather than leaving it vacant which, as at August/September 2005, it had been for three years.
The evidence is unsatisfactory to make a specific finding of value to the husband of his occupation of the former matrimonial home in the period since August/September 2005. I do not accept the wife’s case that the value to the husband should be assessed on the basis of the amount of rent per week which she says it could have obtained if rented to a third party, but rather that he was saved paying rental elsewhere, which the wife had to do. However, there seems force in Mr Jordan’s submission, which I accept, that whilst the husband has been saved paying rental elsewhere, he has paid for improvements, as if in lieu of rent.
Mr Forrest of Counsel, for the wife, submitted that having regard to all of the above factors (leaving aside the position as to the directors’ loan accounts, for the reasons explained), there should be a 10% s 75(2) adjustment in the wife’s favour.
Mr Jordan of Counsel, for the husband, submitted (again, leaving aside the position as to the directors’ loan accounts, for the reasons explained) that there should not be any s 75(2) adjustment.

Analysis and conclusion

I have carefully considered all of the relevant matters raised by Counsel.
In my view, in respect of those matters, there is no basis for any s 75(2) adjustment, and, specifically, I do not accept Mr Forrest’s submission that there should be any adjustment in the wife’s favour in respect of the several matters upon which he relied, based upon the observations which I have made in respect of those matters.
In respect of the matters not addressed by Counsel, it seems to me, as tacitly acknowledged in argument on 3 April 2007, an adjustment in the husband’s favour should be made to reflect the greater proportion of the parties’ directors’ loan accounts for which each will be personally liable, except, as I have explained, for the amount of $50,000 (rounded) in relation to A Pty Ltd’s directors’ loan account, for which the husband should be personably liable in any event, leaving an imbalance of about $60,000 more payable by the husband.
I have explained already (see the discussion in relation to items 2 and 3 of the Schedule) to the effect that the value of the directors’ loan accounts is “neutral” as between A Pty Ltd/husband and as between O Pty Ltd/wife, because A Pty Ltd and O Pty Ltd could only “have” the value of their respective directors’ loan accounts if actually paid to A Pty Ltd and O Pty Ltd by the husband and the wife respectively.
Having regard to the size of the pool, for the husband to have about $60,000 more than the wife would require roughly a 6% adjustment in his favour, or a 12% differential which, in all of the circumstances of the case to which I have referred, I propose to round to a 5% adjustment, or a 10% differential.
In the result, there should be a 5% s 75(2) adjustment in the husband’s favour.

The result – before application of “the fourth step”

Having regard to my assessment of contribution at 5% in the husband’s favour, and the s 75(2) adjustment at 5% in the husband’s favour, the result is that, subject to the fourth step, there should be a 10% weighting in the husband’s favour, or a division of the parties’ assets 60% in favour of the husband and 40% in favour of the wife.

The fourth step

In Phillips and Phillips (2002) FLC 93-104 at 88,985, the Full Court made clear its acceptance of the principle that at times the application of percentages does not necessarily produce a just and equitable result; that it is the order which is to be just and equitable, not just the underlying percentage division of the net value of the parties’ assets; that usually adjustment for the s 75(2) factors will be assessed in the range of 10% and 20%; but that a number of cases will justify an assessment outside those parameters; that in any event it is the real impact in money terms which is ultimately the critical issue; and finally, that in the consideration of whether the result is just and equitable, it is the justice and equity of the actual order, not of the percentage distribution, which must be considered.
The husband argued for an adjustment in his favour, based upon the Weir principle, of 15%. I have already firmly rejected his claim, and need not repeat my reasons, save to make more specific reference to the authorities.
In Weir and Weir (1993) FLC 92-338 the Full Court at 79,593 said:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92 -287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91 -759, and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It is true that in the case of Monte and Monte (1986) FLC 91-757, the Full Court said that to found jurisdiction under s79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identity and value.
We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
The difficulty then arises as to what order should be made. However we are troubled by the proposition which seems to arise from Monte and Monte that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and in so far as the decision in Monte and Monte supports such a proposition, we do not   believe that it should be followed.
[bold emphasis added]
In Weir’s case, the Full Court decided that the trial judge had fallen into error in not making an adjustment based upon the particular facts of that case, and re-exercised the discretion to allow for an amount of money for which the husband should account to the wife. In so doing, the Full Court observed that, in that particular case, their Honours thought that it would be possible for the Full Court to make an assessment (upon the re-exercise of the discretion) “using [Mr A’s] evidence to set some limit upon the amount removed by the husband”.
In that case, on the evidence, the Full Court, in the re-exercise of the discretion, as I have said, was able to evaluate a dollar amount for which the husband should account to the wife.
However, in other cases, where it has not been possible, on the evidence, to calculate or evaluate a precise dollar amount resulting from a parties’ deliberate non disclosure, percentage adjustments have been made. See, for example, K and K [2002] FamCA 1150, Full Court, upholding a decision of Holden CJ, in the Family Court of Western Australia, to which I will refer further below.
In other cases, where neither an assessed monetary adjustment nor a percentage adjustment has been possible, the Full Court has upheld an even more robust approach. For example, in Chang and Su (2002) FLC 93-117, in relation to an appeal from Moore J, the Full Court upheld her approach to grant to the wife all of the parties’ property in Australia, where the circumstances involved non disclosure by the husband of property in Taiwan. In the Full Court decision, at pars 71-72, after considering the Weir and Weir line of cases, the Full Court concluded:
71. It was clearly open to Moore J to apply these principles to the matter before her. Her Honour concluded that the extent of the husband's wealth, whatever it might have been, was sufficient to justify the order she was proposing to make. This is not an appeal based upon the lack of reasons why her Honour concluded it would be just and equitable to put the wife in a position of having an unencumbered home. It is an appeal which is based upon the inability of the trial Judge to make any order under s 79 without first ascertaining the pool of assets.
72. For reasons which we have explained, we conclude that her Honour made findings sufficient to indicate that the husband was a man of substantial wealth and well able in the circumstances to meet the order made and still retain for himself adequate assets so as to make the outcome in the proceedings just and equitable, having regard to the matters highlighted by her Honour that she was obliged to give consideration to under s 79. These were issues of contribution and factors that could be identified under s 75(2). She was extremely hampered in the exercise of that discretion by the non-disclosure by the husband of his financial position and in those circumstances was entitled to take the more robust view that she did. …

[bold emphasis added]

I should mention here that, in Chang and Su, Moore J had dealt with the matter of the husband’s non disclosure under the fourth stage of the approach to property proceedings, namely the “just and equitable” stage, on the basis of her Honour’s reasons in that case. See, in particular, at pars 119-120.
In that case, as her Honour set out in par 119, she was not able to assess even contribution, nor the relevant s 75(2) factors, and thus was constrained to apply the principle in Weir and Weir at the fourth stage, rather than under s 75(2)(o).
However, in K and K, to which I have referred above, the Full Court approved the treatment by Holden CJ, Family Court of Western Australia, to make the Weir and Weir adjustment under s 75(2)(o).
In K and K, Holden CJ said, at 159, at first instance:
159.For the reasons given earlier, I am satisfied that the husband has not made a full and frank disclosure. Also, for reasons given earlier, I am unable to quantify in monetary terms the extent of the non-disclosure. I am, however, satisfied that the non-disclosure is likely to be significant and that this is to be taken into account under s 75(2)(o). In those circumstances and in order to do justice to the wife, my view is that the property decision should be adjusted by 10% in favour of the wife.

[bold emphasis added]

In the Full Court in K and K, at par 45, their Honours said:
45.…Section 79 of the Family Law Act 1975 provides that the Court may make such order as it considers appropriate altering the interests of the parties in property. The Court is prohibited by sub-section (2) from making an order unless it is satisfied that in all the circumstances it is just and equitable to make the order. The Court is then required to take into account by operation of sub-section (4) various matter that include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account (ss 79(4)(e) and 75(2)(o)).

[bold emphasis added]

Thus, the Full Court approved, in that case, not only that in some circumstances a percentage adjustment in relation to material non disclosure is appropriate, but also that in some cases it is appropriate that this be taken into account under s 75(2)(o). I would add that, in K and K, the Full Court went further, at pars 50 and 51, as to whether any material non disclosure should be deliberate before the “Weir and Weir principle” is invoked and concluded, firmly, that the principle should not be so confined:
50.Mr Ackman submitted that the cases discussed above were authority for the proposition that where there was a finding of deliberate non-disclosure the Court could act more robustly in making findings adverse to the party who had actively misled it. We do not see that the principle should be so confined.
51.Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances. it may be appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.

[bold emphasis added]

My firm rejection of the husband’s case that the wife misappropriated either money or stock belonging to O Pty Ltd, or failed to disclose to Mr G (or the husband, or anyone else) documents which might have been relevant for the husband to attempt to prove that case, has the result of my firm rejection of the husband’s case for a Weir adjustment.
The husband’s case theory, it seems, is that because the husband suspected misappropriation, there must be documents undisclosed which, if disclosed, would prove the misappropriation. I am satisfied that there are no such documents, and that Mr G’s and the husband’s pursuit of such a “non disclosure of documents” argument was, at best, speculative, and at worst, misconceived, particularly having regard to Ms D’s evidence, to which I have referred above, and which I wholly accept.
A fraud case must be based upon more than mere suspicion. That is all there was, in this case.
Looking back to the Schedule of the parties’ assets, it is clear that the husband should have the former matrimonial home, if he is able to complete performance of the conditions which I propose to apply, that is, to discharge certain debts, including the intercompany debt; and the other assets in the Schedule which the parties have agreed he should have; and that the wife should have the assets in the Schedule which the parties have agreed she should have.
The husband said in his evidence that the pictures by his father are of great sentimental value to him, and he wishes to have them as “family heirlooms” to pass them down to the children. The wife said that she is very attached to the T picture, which was a wedding present from the husband’s father.
The parties were unable to agree as to who should have the four pictures.
The husband included in his “wish list” (put orally by Mr Jordan on 3 April 2007) that he have all four pictures, for sentimental reasons. Mr Forrest put (also orally on 3 April 2007) that the wife would like to have T picture, but would be content for the husband to have the other pictures comprising item 4 in the Schedule. The husband said that before his father gifted the picture T to the parties as a wedding present (the husband said, gifted to him alone as a wedding present) he had told his father how much he liked it because “I knew the church in Brisbane”. He said (affidavit, par 13) that because his father is now “quite old” and the pictures, including T picture, are of value to him as “family heirlooms”, he should have them, which he intends to keep to “pass them down to the children”.

The husband said that the wife received “valuable wedding presents” from her family “which she has kept since separation and I have no objection to her keeping them”. See his affidavit, pars 12 and 13. (It is not clear whether the “valuable wedding presents” received from the wife’s family are included now in the furniture and chattels in the wife’s possession, item 6 in the Schedule. Certainly, however, there is no evidence to the contrary).
The wife however said (affidavit, par 26) that the husband’s father asked her to choose “one of his artworks” as a wedding gift, and that she chose T picture which she had “watched him paint”.
In my view, it is just and equitable that the husband have his father’s work known as T picture. It is a work by his father to which plainly the husband has sentimental attachment.
The other matter about which the parties were unable to agree is the black P piece. Despite specific negotiation on 3 April 2007, in relation to this item, the parties could not agree which party should have it.
The husband (affidavit, par 15) said that his mother gave him the black P ring “which she intended to be given to [the elder daughter] when she grew up” and that it is “a family jewellery item which belongs in the [parties’] family”. The wife said however (affidavit, par 28) that before the parties’ wedding in 1994, the husband’s mother “presented me with a gift, a black onyx ring”. The wife said further that, in 1997, she arranged for the ring to be changed into a pendant “so that myself and [the elder daughter] would be able to wear it”. She said that at no time was she advised that the black onyx was a “family heirloom”, as the husband now suggests, that it was “given to [the husband’s] mother” but that it was too big for her to wear.
In my view, the wife should have the black onyx piece, not only because I accept her evidence that the husband’s mother gave it to her, but also because the wife frankly has acknowledged that, ultimately, the elder daughter would be able to wear it, which is consistent with the husband’s sentiment that it “remain in the [parties’] family”.
Moreover, leaving aside all of these sentimental matters, frankly the parties did not adduce any evidence as to the value of the onyx piece, but agreed the value of the jewellery in the wife’s possession (presumably, including the black onyx piece) as per item 8 in the Schedule.
I have thus formulated a s 79 order to give effect not only to the matters which the parties agreed, but to these matters also.
The order will have the effect that each party will retain a corporate entity and its business, superannuation and certain chattels. The husband will have the former matrimonial home, but, as I have said, only if he is able to meet the conditions which I propose to order.

Section 79A

There are two matters which, having regard to s 79A(1)(b), may have the potential to “upset the applecart” in relation to the s 79 order which I propose to make.
The first is that the husband may be unable, or unwilling, to comply with the conditions relating to the transfer to him of the former matrimonial home.
The second is that the wife, presently, is vulnerable to a winding up application against O Pty Ltd, upon the application of the ATO, in respect of O Pty Ltd’s continuing debt to the ATO, now $98,465.
The property order which I consider to be just and equitable is premised upon the presumption that, as one of the conditions of the husband having the former matrimonial home, he pay that debt to the ATO, and that as a consequence the current winding up proceedings will not proceed. Plainly, my assessment of the value of the pool, and of the s 75(2) factors and, consequentially, the s 79 order which I propose to make, are premised upon the anticipation that the ATO’s current winding up application will be dismissed or withdrawn, and that O Pty Ltd will not be wound up upon the ATO’s current application.
It is not feasible to delay the s 79 property order to “wait and see” the outcome of the winding up application, as both of the parties, for reasons which are plain enough, seek to avoid O Pty Ltd’s winding up, which would have a terrible impact upon both of the parties.
It is necessary for me to state, unequivocally, that if either of the two events to which I have referred should occur after I make the s 79 order which I propose to make, then s 79A(1)(b) plainly would apply for the s 79 order to be varied, or to be set aside and another order made in its place.
Further, having regard to my familiarity with the matter, as the trial judge, it would be convenient for the parties to approach the Associate for any such application under s 79A to be heard by me.

A related matter

On 8 August 2006, the Honourable Justice Jordan ordered that the husband pay the wife’s costs in relation to an application in a case filed by the husband on 22 December 2005, to be agreed between the parties, or failing agreement as taxed; but stayed the operation of that order pending the resolution of these proceedings.
Mr Forrest of Counsel, for the wife, said that the costs payable by the husband to the wife pursuant to that order amount to $8,442.
It is convenient, in order to ensure an end to the parties’ financial relations, that this amount be offset against any amount which, pursuant to the s 79 order, the husband should pay to the wife, or the wife to the husband.

Emails from the husband’s solicitors 18 and 19 April 2007

On 18 April 2007, the Associate received an email from the husband’s solicitors attaching a Letter of Acknowledgement from the ATO saying that the husband had paid O Pty Ltd’s debt of $98,465 by cheque, and that once the cheque had been cleared, the ATO would advise the Australian Government Solicitor to seek a dismissal of the ATO’s winding up application against O Pty Ltd, but, as it may take a week for the cheque to clear, the ATO would seek an adjournment of its winding up application against O Pty Ltd from 26 April 2007 until 3 May 2007.
At the time the husband’s solicitor’s email and attachment were received by the Associate, as will be appreciated, these Reasons for Judgment largely had been prepared, save for final editing.
Thus, it is not possible now for me to restructure the judgment, or the proposed s 79 order, save in minor respects.
In particular, it is too late for me to revisit the issue of post separation contribution to include as a “further” late contribution by the husband, his payment of the ATO debt of $98,465. Rather, having regard to the s 79 order which already I had formulated (and as now slightly modified) the parties’ solicitors will be able to calculate the amount contemplated by the order, as if the husband had paid the ATO debt of $98,465 pursuant to the order.
On 19 April 2007, the Associate received an email from the wife’s solicitors attaching a further letter from the ATO saying that further interest charges and costs apply in the collective amount of about $2,200; and that the ATO’s costs in relation to the winding up application are about $2,500.
Earlier in these Reasons for Judgment I made clear my view that these amounts are liabilities which should be shared equally between the parties, as indeed should any legal costs incurred by the wife in the winding up proceedings.
These amounts are capable of being dealt with by the existing proposed s 79 order.

I certify that the preceding six hundred and twelve (612) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: 24 April 2007