[B]and [K]

[2006] FCWA 8

JURISDICTION: FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: [B]and [K] [2006] FCWA 8

CORAM: MARTIN J

HEARD: 7, 8 & 9 DECEMBER 2005

DELIVERED: 13 JANUARY 2006

FILE NO/S: PT 6412 of 2004

BETWEEN: [B] Applicant/Wife

AND

[K] Respondent/Husband

Catchwords:

Child - contact - holidays - collection and delivery arrangements

Settlement of property - initial contribution - s 75(2) factors

Legislation:

Family Law Act 1975 - s 65E, s 68F and s 79

Category: Not Reportable

Representation:

Counsel:

Applicant Wife: Mr Walker

Respondent Husband: Mrs Brownlie

Solicitors:

Applicant Wife: DCH Legal Group

Respondent Husband: Shannon Bodeker & Associates

Case(s) referred to in judgment(s):

Coghlan v Coghlan (2005) FLC 93-220

Hickey and Hickey and A-G for the Commonwealth of Australia

(Intervener) (2003) FLC 93-143

1The issues for determination were the wife's applications for parenting orders and settlement of property, first filed 13 December

2004, and amended on 2 December 2005. The husband's response was filed on 20 January 2005.

2By the conclusion of the trial, the issues for determination in relation to the child of the parties were very narrow:-

1. Whether the husband should be required to be on leave from his employment to have school holiday contact.

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2. Whether the husband should be required to collect the child of the parties himself from the wife's home at changeover.

3In relation to settlement of property, it was agreed that the wife should receive the funds being held in a Bankwest Gold Cash Management Account, being the balance of the net proceeds of sale of their former matrimonial home. The husband agreed to a splitting order in relation to his private superannuation fund and for the wife to have a base amount of $11,000. In closing, the wife sought the sum of $52,500. In addition, the husband sought to be released from his undertaking to pay the wife a further sum of

$5,000.

4In total, the wife sought that she receive 70% of the parties' assets, including superannuation, and the husband proposed that she have 55%.

Background to the proceedings

5The wife is 42 years old and a primary school teacher. The husband is 41 years old and a financial manager. The wife was previously married between 1986 and 1991. There were no children of that marriage. The parties met in Perth in January

1997, through [an organisation], and commenced their relationship

in November 1999. The husband had gone out with the wife's sister for a few months. The husband was working in the United Kingdom for an Australian company. In December 1999, the wife went to the United Kingdom and the parties spent three weeks together. The wife returned to work and completed the first term of school at her then employment. In April 2000, the wife joined the husband in the United Kingdom and the parties commenced their de facto relationship. They married in September 2000, in Perth. In November 2000, the husband was retrenched from his employment. In January 2001, the parties returned to Perth from the United Kingdom permanently.

6By then, the wife was pregnant. She began teaching at [a primary school], and the husband obtained employment with [a government department]. The wife commenced maternity leave in March 2001. The only child of the parties, [T] was born in May

2001 (aged four years).

7 The wife was not employed outside the home for the rest of

2001. In January 2002, [T] was placed in day care for half a day per week, which was increased to all day Friday in June 2002.

8In October 2002, the wife became pregnant with the parties' second child, but the child died prior to birth.

9In June 2003, the wife commenced working part-time, with [a university], supervising trainee teachers.

10 In September 2003, the parties commenced occupying separate beds.

11 In May 2004, the husband commenced employment at [a firm], under the same boss he had had at [a previous firm].

12	In October 2004, the wif	e began working on Wednesdays,
Thursdays and some Fridays. Thursdays and Fridays.	[T] was placed in day care on

13 On 5 December 2004, the parties separated, and the wife moved out of the former matrimonial home with the child and commenced residing at her mother's home.

14 Proceedings in this court commenced with the wife's application filed only the following week. The husband, in January

2005, filed a Form 4 Notice of Abuse, alleging that the wife had

wrenched the child's left arm and dragged him inside the house on

19 November 2004, and on 2 January 2005, the child had told the

father that the mother had smacked him. On or about 8 January

2005, the father had noticed two bruises on the child's bottom. The

respondent also asserted that the applicant was physically violent towards him in the presence and/or hearing of the child. The allegation has not been substantiated after some investigation by the Department for Community Development and the court expert.

15 In February 2005, the child commenced kindergarten on

Tuesday and Thursday mornings.

16 On 10 February 2005, it was ordered that the child reside with the father during school term time each Wednesday from 4:30 pm until the commencement of day care on Thursday, and from the conclusion of day care each Friday until 9:30 am each Sunday and otherwise reside with the mother. Until further order, the child was to reside equally with both parents during school term holidays and the parties were restrained by injunction from:-

•harassing, annoying, molesting or otherwise interfering with the manner of living of the other party; and

• physically disciplining the child.

17 A single expert was appointed, Dr Phillip Watts, and his report was published on 28 July 2005. The parties were able to

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resolve most of the issues regarding the parenting of [T] by the pre- trial conference on 12 September 2005, and orders were made, by consent on that date. In summary, Dr Watts suggested the parties move towards a five night/two night arrangement in favour of the mother, with the father picking the child up for one afternoon during the week, but avoiding overnight mid week. However, in two years' time the move should be towards the father having a greater share of the day to day residency if he "can avail himself to the child". For this to be effective, Dr Watts recommended the following:-

"1. Parents live in similar area.

2. The animosity between the parents reduced to a level where they can negotiate issues on a day-to-day basis.

3. The father function in a more parental role, rather than more liberal and indulging position he is currently taking.

4. As the mother is a school teacher it is eminently sensible that the mother could pick [T] up after school and the father could pick [T] up from the mother after his work on the nights where Mark has him if they set up a shared care arrangement."

18 His conclusion was:-

"[T] is a lovely little boy with two parents who are evidently extremely devoted to him. The sad reality of divorce means, instead of a child growing up as one child with two parents present to provide their many and varied differences, the ratio is reversed the other way around, where a child is shared amongst two independent households. There is no fair way, from [T]' point of view, to give him the benefits of two parents. The best is some type of balance. In my opinion, if the parents can provide one stable primary base for the next 2 years before moving into greater shared care arrangement, this would be in [T]'s longer-term best interests to do this. In my opinion the mother is better placed to do this."

The consent orders relevantly provide:-

• The child reside with the mother.

•The parents share responsibility for the child's long term care, welfare and development and each parent have responsibility

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for the child's day to day care, welfare and development for those periods during which the child is in that parent's care.

•The child reside with the mother and have contact with the father as follows:-

(a) during term time:-

(i)	each alternate week from 4:30 pm	on
Wednesdays to the commencement school on the following Fridays, and	of
(ii)	each intervening week from 4:30 pm	on

Friday to 4:30 pm on Sunday and Monday in the event of a long weekend, provided that the father shall not have more than one half of long weekends each year;

(b) during the school holidays:-

(i) each alternate week from 4:30 pm on

Tuesday to 4:30 pm on Friday; and

(ii) each intervening week from 4:30 pm on

Thursday to 4:30 pm on Sunday.

19 The orders also provided for special occasion arrangements.

Commencing 2006, each parent was to be permitted to take the child outside Western Australia for a holiday for one period of four days each alternate year and two periods of four days each intervening year upon giving 28 days' notice to the other parent, together with an itinerary and telephone numbers where the child can be contacted during such periods.

20 Either party was at liberty to apply to Dr Watts to prepare a further report after the child's sixth birthday, with the terms of reference to be determined by the court in lieu of agreement.

21 The child's name was to be changed [to incorporate a hyphenated combination of the parent’s surnames] I presume that this has been done.

22 It is clear that the parties have a very poor relationship, as is evidenced by the affidavit material, and their attitudes during the trial. As I stated during the trial, it was difficult to understand how the parties could proceed to trial over minor issues involving their child, and their modest assets - no doubt, they have paid a heavy emotional and financial price for this.

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Parenting issues

23 At trial, the wife sought the following orders:-

- There be final orders in terms of the consent orders made

12 September 2005.

-Further to the consent orders made 12 September 2005, the husband attend personally to collect the child from the wife's place of residence at the commencement of his contact period and the wife collect the child from the husband's place of residence at the conclusion thereof, except for school days, when the husband shall return the child to school.

-The husband do provide the wife with evidence that the contact provided for at order 3(b)(i) and (ii) of the Orders of

12 September 2005 (the holiday contact), shall be taken

contemporaneously with his annual leave, failing which:

(a) the husband's contact be suspended from 8:00am to

6:00pm on each of those days; and

(b) the husband drop off the child at the mother's place of residence each morning at 8:00am, and collect the child from the mother's residence at 6:00pm on each day the husband is not personally available to care for and supervise the child.

- As and by way of a consequential order to the Orders of 12

September 2005, the parties do exercise contact pursuant to Orders 4(f) and 11 contemporaneously with periods during which the child is otherwise in that parties' care, and not cumulatively with those periods.

24 By an amended response filed 7 December 2005, the husband sought to discharge the orders of 12 September 2005, and sought a large number of other parenting orders culminating in, as from 22

December 2008, the child living with each parent for alternate weeks. At the commencement of the trial, I was asked to make a ruling as to whether the respondent should be permitted to proceed with this application. Since it was clearly in breach of the intention of the orders and directions on 12 September 2005, and the matter had been listed for trial on the basis that only the two narrow issues were to be decided, I ruled that I would only permit the narrow issues to be dealt with at trial. The matter then proceeded on that basis.

Relevant factors

25 Pursuant to s 65E of the Family Law Act 1975, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Court must consider the matters set out in s 68F(2) of the Act.

26 Having regard to the very narrow issues in dispute between the parties, I do not propose to refer to each of the relevant factors, apart from as they appear subsequently in my judgment. There is no doubt that both parties have a close and loving relationship with the child and both have been very much involved in his care, the mother more than the father, as he has worked on a full-time basis since the child was born. The court expert described them as "extremely devoted and highly dedicated intelligent and active parents".

Changeover time

27 Until close to the end of the trial, the mother's position was that the father should be required to collect the child at the commencement of the child's time with him, at 4:30 pm on alternate Wednesdays and 4:30 pm on intervening Fridays. It was not in dispute that, although the father had said he would have no difficulties in his employment with leaving work early to collect the child on those days, that, generally, the collection has been done by one of his parents. Extraordinarily, throughout 2005, his parents, who live in [the eastern states], have travelled to Perth, and stayed with him on an alternating basis, so they are able to assist with the care of [T].

28 The mother's position was that the father should be required to undertake to collect the child himself, as he should be available for [T], and the grandparents' involvement with the child should not have priority over a parent. It was necessary for the parties to see each other to communicate directly over matters concerning the child.

29 The father's position was that, in the future, he was going to leave work at 4:00 pm to collect the child, regardless of problems in his employment. Although in evidence was an undated letter from his boss, obviously prepared early this year, saying that he could work from home on Wednesdays and have flexibility in his working hours, difficulties had arisen in his employment because of problems with his immediate boss and there had been a heavy workload this year since the company has changed banking

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arrangements. When I asked him why he could not just collect the child a little later and return the child a little later, say at 5:30 pm, his response was that the applicant mother had required the changeover at 4:30 pm and he thought there was no alternative. The mother, in fact, agreed to a changeover at 5:30 pm. I therefore immediately varied the orders to provide for changeovers at 5:30 pm, and propose to make these final orders. The father must do the collecting, which he says he will do anyway, and this should no longer be a problem. It is indic ative of the poor relationship between the parties that there could have been so much unnecessary dispute which, obviously, just required some sensible communication to resolve.

Father's care of the child during school holidays

30 The issue here was that the mother was not prepared to have the child cared for by anyone other than the father during school holidays when she, being a school teacher, is available to care for the child.

31 The father totalled up the days on which he would have the child during school holidays as being 23 days, and the mother says

26 days. The father has 20 days holiday per annum, and next year wanted to take five days of this to travel to China, as part of the conclusion of the [university] course that he is doing. He was prepared to undertake to take 10 days of his holidays when he had the care of the child. He proposed that one of his parents would care for the child if he was not available. His father plans to move to Perth to live with him in January 2006, so there would be no problems in this regard. His father is 72 years old and in good health.

32 I do not accept that it is appropriate for the husband to have holiday contact when he is at work, or perhaps away from Perth, and his contact be, in fact, exercised by a grandparent who will obviously be spending quite a lot of time with the child anyway. I therefore accept the wife's submissions in this regard.

Property settlement

33 By the conclusion of the trial, the issue for determination was the extent to which the husband's private superannuation fund should be split, the wife, in closing, proposing a base amount of

$52,500 to her, and the husband proposing a base amount of

$11,000.

Assets, liabilities and resources of the parties

34 Pursuant to s 79 of the Family Law Act 1975, in proceedings with respect to the property of the parties to a marriage, the Court may make such order as it considers appropriate altering the interests of the parties in the property. The Court shall not make an order unless it is satisfied, in all the circumstances, it is just and equitable to do so.

35 In Hickey and Hickey and A-G for the Commonwealth of

Australia (Intervener) (2003) FLC 93-143:-

"The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (''the other factors'') including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: …"

36 In Coghlan v Coghlan (2005) FLC 93-220, the Full Court of the Family Court of Australia, in effect, said, in considering the interpretation of s 4(1), s 79(1) and s 90MS of the Family Law Act, that contributions to, and the division of superannuation interests should be considered separately to the other assets.

37 There was little dispute between the parties as to the extent of the asset pool. The parties had owned a property in [the suburbs], which was sold after separation, settlement occurring on 7 January

2005. The net proceeds of sale after discharge of the mortgage were $138,947. At settlement, each party took $10,000. The parties' Bankwest personal loan account with a balance of $19,498, which the parties had obtained in April 2004, was paid out. The balance of $99,448 was paid into a joint Bankwest account.

(Page 11)

38 It is not in dispute that the parties had initially agreed to sell the home for not less than $412,000. The wife agreed to accept

$407,000 only upon the husband's written undertaking to pay her the difference of $5,000 in addition to her share of the proceeds. The terms of the agreement were:-

"I promise to pay [the wife] the sum of five thousand dollars only ($5,000) being the shortfall against the bottom line net proceeds of sale of [the matrimonial home], following receipt of my share of the divorce settlement based on the actual gross sale price of $407,000 (with fees reduced by $1,000 +

$1,000)."

39 On 3 February 2005, the parties agreed to release a further

$20,000 to each of them from the settlement trust. At trial, the sum of $62,000 remained in the trust.

40 It was also agreed to exclude liabilities, and savings, arising since separation, and the parties' present furniture.

41 The debts included were based on the figure at separation.

The Westpac Visa was at its upper limit of $3,500 on the wife' evidence. She was pretty sure about the amount owing on Diners Club as it was paid off every month. The Commonwealth Bank Visa Credit Card was eventually agreed to be included at $6,790.

42 It was agreed to include an additional sum of $1,800 to the husband's superannuation, which should have been rolled over from the AMP Society. It was also agreed to include the husband's wedding ring at $300.

43 The position was therefore as follows:-

Husband Wife

Proceeds of sale of home held in trust 31,000 31,000

Add-back for proceeds distributed 30,000 30,000

Vehicle 4,000

Wedding ring 300 2,000

Total: 61,300 67,000

Liabilities
Westpac Visa	3,500
Diner's Club	1,200
Loan from father	5,000	5,000

Commonwealth Bank Visa Credit Card	6,790
Total:	11,790 9,700
Nettotal:	49,510 57,300

44 The parties' assets, not including superannuation, therefore total $106,810.

45 As to superannuation, the position was:-

GESB Superannuation 32,449

Unisuper 426 [private superannuation fund] 101,892

1,800

Total: 103,692 32,875

46 The parties' total superannuation is therefore agreed at

$136,567.

47 The total assets were therefore $243,277.

48 Neither party proposed to include legal fees as add-backs as both parties have incurred debts to meet their legal fees.

Contributions – s 79(4)(a), (b) and (c) of the Family Law Act 1975

49 In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentio ned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them,

(Page 13)

or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent:

50 A significant issue between the parties were their initial financial contributions. At the commencement of cohabitation, the wife was working as a primary school teacher, and the husband was working [in finance] in the United Kingdom earning about

$85,000 per annum.

51 At the end of 1995, the wife and her sister had bought a vacant block in [the suburbs], and sold the property in October 1999. The wife received $45,000 of the net proceeds. The wife used part of her proceeds to pay off her motor vehicle, which is still in her possession, and her credit cards, and invested the remaining

$35,000 in a savings account, and then into a term deposit with

Bankwest. It is not in dispute that the wife had the term deposit of

$35,000 at the commencement of cohabitation and an additional

$3,000 in savings. She estimated her motor vehicle was then valued at about $8,000 (the husband had said $10,000 in his trial documents), and her furniture and contents were worth about

$10,000. The husband had said they were worth about $20,000.

However, the items apparently comprised only a display cabinet, refrigerator, cane lounge and appliances. The husband says that the figure of $20,000 was a mistake and they should have been included at $5,000, or $2,500 in his Papers for the Judge. I intend to accept the wife's suggestion that she be regarded as having chattels worth $10,000, as it is not fair that the husband should have three bites of the cherry on this issue.

52 The husband estimated that he had furniture and household effects worth about $2,500.

53 The wife had superannuation worth about $17,500 as at June

2000. She did not have any liabilities.

54 The husband had nominal assets, apart from superannuation with a balance of just over $49,000. The husband has a [private superannuation fund], the trustees of the fund being himself and his

brother, and he also had some AMP superannuation accrued with his then employers, which was rolled into that fund.

55 In his trial affidavit he referred to having a motor vehicle valued at about $5,500, but in evidence said this should have been

£5,500 so this should be included at $13,750. The vehicle had, in effect, been given to him by his father, having been bought when the husband went to England for £6,000 and sold for £2,500 a few months after cohabitation commenced. The wife objected to this being taken into account at the higher amount, as if the husband made the error on oath, he should be stuck with it. In this instance, I am prepared to give the husband some leeway, but it seems unlikely it would have been worth £5,500 at the commencement of cohabitation. I will include it at about $7,500.

56 The husband had some Telstra shares which he valued at about $4,000 and some National Bank shares valued at about

$15,000. His brother had provided $4,000 for the purchase of the

Telstra shares and it transpired that these were really his brother's,

so I have excluded them from further consideration.

57 The husband's evidence in relation to the initial contributions was clearly inaccurate in that he referred to a "promised redundancy payout" (subsequently actually received) of about

$40,000. I do not believe that at the time of commencement of cohabitation, the redundancy issue had arisen, nor had a sum been agreed. The husband also referred to his initial contribution, including a refund of his United Kingdom national insurance contributions of about $5,500, which I do not believe was received until after he finished work in England in November 2000.

58 The husband's evidence was at that time he was to receive a contribution to his credit card account by his father, [Mr RK] of about $4,100, so this should cancel out his liability on the Westpac Credit Card of the same amount

59 He had substantial liabilities as follows:-

HSBC Bank credit card debt	1,350
HSBC cheque account overdrawn	300
Natwest cheque account overdrawn	600
Natwest credit card debt (£2,498)	6,800
Commonwealth Credit Card	8,000
Total:	$17,050

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60 Therefore, I have concluded the position was the wife had approximate net assets of $73,500, including superannuation, and the husband had approximate net assets of $56,950 (not including the money from his father), including superannuation.

61 The wife worked while in England doing some [training work], and saved about $15,000 in the nine months she was there, for the parties' wedding in Perth. The parties lived off the husband's income. The wife was otherwise engaged in home duties, working on a part-time basis. The parties eventually used

$10,000 of the savings for the wedding and $3,287 for around the

world plane tickets.

62 In November 2000, the husband's employer, was wound up and the husband was retrenched. He received a payout of about

£15,000 (about $40,000) which the wife accepts he worked hard to

achieve. The husband had by then, been working with the company for about seven years, and for only seven months of that time had been cohabiting with the wife.

63 Some of this was used to meet debts, the sum of £4,203 being paid to the Natwest Credit Card account.

64 The sum of £7,294, or about $19,505, was transferred into the National Australia Bank, so sent to Australia, on 4 December 2000. It was used over time to pay remaining English credit card debts.

65 The husband, on his return from England in August 2001, received a refund of his national insurance contributions of about

$5,500 (£2,063 Sterling), which was deposited into an HSBC

account on 21 September 2001.

66 The husband's AMP superannuation with [his former employer] was eventually rolled into his private fund.

67 The parties then left Britain and returned to Perth via America, Canada, to attend the wife's best friend's wedding, and Tahiti. The parties also had a trip to America previously to visit friends of the wife.

68 The parties were then accommodated rent free at the wife's mother's home for a few weeks. The wife worked during Term 1 of 2001, and took maternity leave, stopping work on 29 March

2001. The husband commenced employment at the [government

department] in early March 2001. The husband worked long hours and received a starting salary of about $110,000. During early

2001, the husband also undertook two Landmark self improvement courses, each running for several days.

69 The parties lived in rental accommodation for a time. In June

2002, the parties purchased the former matrimonial home for

$315,000. The wife's term deposit, then of about $37,000, was used as a deposit, and the parties borrowed $20,000 from the husband's father, which debt remains at $10,000 and which the husband agreed he would continue to bear responsibility for. He has been paying this debt off at gradually. The husband says he also contributed $15,000 from the sale of the shares, meeting the settlement expenses.

70 At about that time, the husband began [further studies] at the [university] attending lectures one or two nights a week and studying at home on weekends. He did more Landmark self improvement courses. The MBA cost about $1,500 per unit, and the husband paid for it on a credit card.

71 The wife did not work outside the home, apart from very occasional relief teaching until about the end of second term 2003, when she began to get regular relief work about one day per week.

72 In April 2004, the parties borrowed $22,500 from Bankwest by way of a personal loan, including, initially, $15,000 to pay out the credit cards, but the wife's evidence is the husband told her the debt had increased by $7,500. Some of the balance was spent on painting and maintenance, but the wife's claims the husband refused to tell the wife what the remainder had been spent on. It seems it was probably used to clear English debts.

73 In May 2004, the husband started a job at [a new firm] with the same boss as at [his former firm]. His salary is $95,000 and his package is worth about $118,000 per annum including a fully paid company car and superannuation.

74 By October 2004, the parties had agreed to separate. The wife was working on Wednesdays, Thursdays and occasional Fridays at [a Primary School]. The wife and [T] slept at her mother's house on Tuesday nights and she cared for him on Wednesdays while the wife was at work. At the end of 2004, the wife arranged to work on Thursdays and Fridays and [T] attended day care on those days. This was the arrangement in place at the time of trial as affected by the parenting orders.

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75 The evidence is that during the relationship (but slightly before cohabitation), the husband earned approximately $400,000, and the wife earned approximately $79,000.

76 Neither party really claimed they had made any indirect contributions.

77 As to contributions as homemaker and parent, there is no doubt that the wife has made a much greater contribution in this regard, as the husband has been in employment, working long hours and has also been studying. However, he has been an involved parent, mainly on weekends. He accepts he has done little by way of housework, except for washing up in the evenings and taking out the rubbish, because he was in full-time employment.

78 For much of the time the parties were in England, the wife was not employed and was engaged in household duties. The child of the parties was born about 14 months into the de facto relationship, and then the mother was very fully committed with the care of the child. Since separation, there has been a shared care arrangement with the father utilising assistance from his parents for some of the time, but the mother has been the primary caregiver of the child, and this is likely to continue to at least 2008. Eventually, there is a possibility of the parties having fairly equal shared care.

Conclusion - contributions

79 The wife's case was that she should be entitled to 55% on contributions, and the husband said that he had made the greater contribution.

80 I have concluded that the wife made a greater net initial contribution than the husband. However, some of the husband's initial debt was incurred for an expensive romantic weekend in Paris for the parties' engagement.

81 During the relationship, substantial funds were spent on travel and the wife did not earn as much as usual while in England.

82 Although this was a short marriage, and during the marriage the husband made a much greater financial contribution than the wife, the parties had a baby 14 months after the commencement of their de facto relationship. Before, and since, the child's birth, the wife has made a much greater contribution than the husband as homemaker and parent. Apart from the issue of the redundancy payment and the national insurance contributions, the parties should be regarded as having made an equal contribution during the relationship.

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83 Since separation, the husband has continued with his employment and paid some contributions to the parties' debts. He has paid appropriate child support. The wife has worked part-time and continued her contribution as a parent.

84 While the husband's redundancy payout was substantially used to pay debts, some of the debts were in existence at the commencement of the relationship and taken into account in assessing the initial contribution or accrued during the relationship.

85 The husband's right to a redundancy payout arose from his fairly longstanding employment with the company, a large proportion of which was prior to separation.

86 Taking this into account, overall, I have concluded that the husband should be entitled to 52½% of the assets as a result of his contributions, and the wife, 47½%.

Section 79(4)(e)/Section 75(2) factors

87 Pursuant to s 79(4)(e) of the Family Law Act, in making an order under s 79 of the Family Law Act, I must take into account the matters referred to in s 75(2) of the Act so far as they are relevant, and adjust any distribution based on contribution to ensure that the division of property between the parties is just and equitable.

88 As to the husband's earning capacity, the husband earns

$95,000 per annum, plus receives the statutory superannuation

payments. He estimates that the provision of his motor vehicle is worth about $15,000 per annum. He says he may well change jobs because of his commitment to [T]'s care and, in any event, when he completes his [higher] degree, which he expects to be in August

2006.

89 The wife has been employed on a part-time basis as a teacher earning about $450 before tax per week, or $756 per fortnight net. She has been working for two days per week, and is seeking employment, when [T] commences school this year, for four days per week. She could also do some additional life skills consultancy work. She hopes to be placed at a school near [T]'s school. She is anxious to have one day per week off so she can become involved in [T]'s classroom and school activities. She estimated that she then has an earning capacity of about $35,000 per annum. She thought she was a Level 2.3 teacher, which means, if she is working for four days per week, as from February 2006, she should actually be paid about $49,000. The wife could apply for a job as a

senior teacher at a slightly higher level, but does not propose to do this for the time being. The wife has permanency as a teacher, and while she has secure employment, there is no doubt that the husband has the greater earning capacity.

90 As to the parties' commitment to support themselves and others, neither has an obligation to support anyone other than themselves and [T]. At trial, the husband was paying child support in the sum of $233 per week. The mother was in receipt of a parenting payment of $247 per week. Her total income was $1,011 per week and her expenses $920 per week. The husband's total income is $2,115 per week and his expenses are $2,151.

91 The husband has reasonably substantial superannuation entitlements now totalling $101,000. The wife also has superannuation entitlements totalling $32,875.

92 If orders are made on the basis of contribution, the wife will be entitled to total assets, including superannuation, worth

$115,604, and the husband, assets worth $127,773. However, both

have debts, including for legal fees. The husband owes money to his father and brother and has a Bankwest personal loan for legal fees of $19,000. He has continued to run up credit card debts, having four credit cards with a total balance of $32,600 according to his latest Form 13 financial statement. He is clearly in the habit of living beyond his means.

93 The marriage was of short duration, only four years, and has affected the wife's earning capacity in that she has had the primary care of [T] since his birth. The effect of [T]'s care is rather more than the "brief interruption to her career" suggested by the husband. The husband has been able to improve his qualifications, and thus, to some extent, his earning capacity, during the marriage as he has nearly finished [a higher degree], which involved some expense.

94 Neither party is cohabiting with any other person. If the husband's father does move to live with him, presumably they will share living expenses, to some extent.

95 There are no other relevant facts to be taken into account.

Conclusion - s 75(2) factors

96 The wife's case was that there should be an adjustment of 15% in her favour for s 75(2) factors. The husband accepted there should be some adjustment. Having regard to the husband's greater earning capacity, and the wife's commitment to the care of the parties' fairly young child, I accept that an adjustment of 15% in

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the wife's favour is appropriate, and that therefore, overall, she should receive 62.5% of the assets of the parties, and the husband,

37.5%. In reaching this conclusion, I have taken into account that neither party will be able to access their superannuation for some time. She would therefore be entitled to a total of $152,110, and the husband, $91,267.

Effect of orders

97 The only significant issue in relation to the orders was the extent to which the husband's private superannuation fund should be split. Apparently, technically, the necessary notification had not been provided to the trustees of the fund, who are the husband and his brother, and this was to occur in the period during which judgment was reserved.

98 The division would therefore be as follows:-

Husband Wife

Proceeds of sale of home held in trust 62,000

Add-back for proceeds distributed 30,000 30,000

Vehicle 4,000

Wedding rings 300 2,000

Total: 30,300 98,000

Liabilities

Westpac Visa 3,500

Diner's Club 1,200

Loan from father 10,000

Commonwealth Bank Gold Visa Credit

Card 6,790

16,790 4,700

Net total: 13,510 93,300

GESB Superannuation 32,449

Unisuper 426

Remaining [private superannuation fund]

75,957

1,800

Splitting order + 25,935

Grand Total: 91,267 152,110

99 The husband will then have to pay the wife a further $5,000 pursuant to the undertaking. No reasons were advanced in support of his application to discharge this, and I do not propose to do so.

Proposed orders

1. Subject to the following orders, there be final orders in terms of the consent orders dated 12 September 2005.

2. The husband attend personally to collect the child, [T] , born May 2001, from the wife's place of residence at the commencement of his contact period, and the wife collect the child from the husband's place of residence at the conclusion thereof, except for school days when the husband shall return the child to school.

3. Until further order, the order of 12 September 2005, be varied to provide that whenever a time for collection or delivery of the child is to be 4:30 pm, it be varied to 5:30 pm.

4. In the event the husband is not on leave from his employment, and personally available to care for the child during a holiday contact period:-

(a) the husband's contact be suspended from 8:00 am to

5:30 pm;

(b) the husband collect and deliver the child from and to the wife's residence at 5:30 pm and 8:00 am on those days.

5. As and by way of a consequential order to the orders of 12

September 2005, the parties do exercise contact pursuant to

order 4(f) of the orders dated 12 September 2005 contemporaneously with periods during which the child is otherwise in that party's care, and not cumulatively with those periods.

6. As and by way of settlement of property:-

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(1) Within 28 days of these orders being made the parties do all things necessary and sign all necessary documentation to cause the proceeds of sale of the former matrimonial home, held in Bankwest Gold Cash Management Account xxxxx to be disbursed to the wife.

(2) The husband indemnify the wife and keep her indemnified in respect of any existing loan from his father.

(3) Pursuant to section 90MT(4) of the Family Law Act

1975, the base amount allocated to the wife out of the husband's interest in the [private superannuation fund] (the "Fund") is $25,935 (the "Entitlement").

(4) Pursuant to section 90MT(1)(a), whenever a splittable payment becomes payable in respect of the husband's interest in the Fund:

(a) the Trustee pay the wife the entitlement calculated in accordance with the regulations; and

(b) there shall be a corresponding reduction in the entitlement the husband would have in the Fund, but for these orders.

(5) These orders are binding upon the Trustee of the

Fund.

(6) The husband do all things necessary and sign all necessary documentation (if any) to transfer and assign to the wife any right title and interest he may have in:

(a) the wife's motor car;

(b) furniture, contents and chattels in the wife's possession;

(c) the wife's present and future superannuation entitlement;

(d) any and all savings in the wife's bank account(s).

(7) The wife do all things necessary and sign all necessary documentation (if any) to transfer and

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assign to the husband any right title and interest she may have in:

(a) furniture, contents and other chattels in the husband's possession;

(b) subject to Order 3 hereof, the husband's present and future superannuation

(8) Other than as provided in these orders:

(a) any interest either party may have in the property in the name or possession of the other forthwith vest in the party in possession;

(b) any bank accounts, superannuation or life assurance policies be deemed to be in the name of the party whose name appears on the institution's records thereof;

(c) each party be solely liable for and indemnify the other against any and all liability encumbering or relating any item of property to which that party is entitled pursuant to these orders.

(9) Both parties do all such things and sign all such documents necessary to give meaning and effect to these Orders.

(10) The parties have liberty to apply in respect of the implementation of these orders.

(11) The proceedings otherwise be dismissed.

I certify that the preceding [99] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate