Balzia & Balzia

[2009] FamCA 679

FAMILY COURT OF AUSTRALIA

BALZIA & BALZIA [2009] FamCA 679

FAMILY LAW – CHILDREN - Parental responsibility - Equal shared parental responsibility
FAMILY LAW – CHILDREN - With whom a child lives
FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of a child - Child's views
FAMILY LAW – PROPERTY - Settlement in relation to marriage - Superannuation - Contributions

Coghlan & Coghlan (2005) FLC 93-220
Clauson & Clauson (1995) FLC 92-595
Figgins & Figgins (2002) FLC 93-122
West & Green (1993) FLC 92-395

APPLICANT: Mr Balzia

RESPONDENT: Ms Balzia

FILE NUMBER: PAF 1803 of 2005

DATE DELIVERED: 16 April 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE:

16 - 18 April 2007
17- 20 September 2007

6 - 8 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: MR MACPHERSON

SOLICITOR FOR THE RESPONDENT: MALOUF SOLICITORS

Orders

1. That all parenting orders previously made in this matter be and are hereby discharged.

2. That the children of the marriage M, born … August 1995, J, born … December 1998, and R, born … August 2002 live with the wife.

3. That the parents have equal shared parental responsibility for each of the said children.

4. That the child M spend time with the father, in accordance with her express wishes.  In the event of the said child expressing to the mother a wish to spend time or communicate with the father, the mother shall do all in her power to ensure and facilitate the child doing so.

5. That the children, J and R, spend time with the father as follows: 

   (a)       During school term, in each thee-week cycle, for: 

   (i)The first two weekends of each such cycle, from after school on Friday to before school Monday;

   (ii)Each Wednesday, from after school to before school Thursday.

   A.The husband shall ensure that the children are promptly collected from school and returned to school at an appropriate time on each morning, as required.

   (b)For one half of each school holiday period in each year and, failing        agreement, for the first half in odd-number years and the second half in even‑number years. 

   (i)"The first half" shall mean the period commencing at 9 am on the first day after the last day of the preceding term and concluding at 6 pm on the Saturday marking the midpoint. 

   (ii)"The second half" shall mean the period commencing at 9 am on the Saturday marking the midpoint and concluding at 6 pm on the day immediately prior to the first day of term, whether such day be a pupil-free day or otherwise. 

   (iii)The period for the children to spend time with the father during school term shall commence on the first Friday after term commences, where the children have spent the first half of the holidays with their father, and shall commence on the second Friday after the commencement of term, where the children have spent the second half of their holidays with the father.

   (c)Notwithstanding these orders, the children shall spend time with the  father as follows:

   (i)From 6 pm Easter Saturday until 6 pm on Easter Sunday in the year 2011, and each alternate year thereafter; and,

   (ii)In 2010, from 5 pm on Easter Thursday until 7 pm on Easter Sunday, and each alternate year thereafter.

   (iii)From 9 am until 7 pm on Father's Day, if that is not otherwise a day which falls within these orders.

   (iv)In the event that any child's birthday falls on a day when the children are not spending time with the father, the father shall have the children for four hours on that day.

   A.If agreement as to times cannot be reached, the husband shall collect the children from school and return the children to the wife by 8 pm, and, if it is not a school day, from 3 pm until 8 pm.

6. That on all occasions when the father is to collect and return the children other than to and from school, he shall collect them from the wife, at her residence, at the commencement of each such period, and return the children to her, at that place, at the conclusion of each such period.

7. That notwithstanding anything specified in these orders, the children shall spend time with their mother as follows:

   (a)       From 10am until 8pm on Mother's Day;

   (b)From 10 am until 8 pm on their mother's birthday, if that does not fall upon a day when the children live with their mother; and

   (c)From 11 am on Christmas day until 7 pm Boxing Day in 2009, and 11 am Christmas Eve until 11 am Christmas Day in 2010.

8. That neither party shall denigrate, nor permit any other person to denigrate, the other of them, or members of the other parent's family, and/or friends or acquaintances of that party within the presence or hearing of the child.

Property Orders

1. That the parties forthwith execute all documents and do all acts and things necessary to direct Messrs Malouf, solicitors, to deal with and distribute the funds of moneys held by them in trust for the parties as follows:

   (i)To pay to the wife the sum of $176,178;

   (ii)To pay to the husband the sum of $62,897; and

   (iii)To distribute any amount thereafter remaining equally between the parties.

2. That the Court allocate, pursuant to section 90MT(4) of the Family Law Act 1975, a base amount of $39,730 to the wife, out of the husband's interest in the ING Masterfund, member number 6094205/00081.

3. That, in accordance with section 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable from the husband's interest in the ING Masterfund, member number …, ING Custodians Pty Ltd, the trustee of the fund, shall pay the wife, or her legal representative, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $39,730;

4. That there be a corresponding reduction in the entitlement that the husband would have in the ING Masterfund, member number 6094205/00081, but for these orders. 

5. That for the purpose of order (11) the base amount to be allocated to the wife in the fund is $39,730 and the operative time from which that order is to have effect is the seventh business day after the day upon which the final sealed orders are served upon the trustee of the fund.

6. That unless otherwise specified in these orders, and except for the purpose of enforcing the payment of any money due under these orders, each party is solely entitled, both at law and in equity, to the exclusion of the other of all property (including real estate, motor vehicles, bank accounts, superannuation and long service and other employment benefits), moneys held in cash, moneys held in investment other than in bank accounts, and such personal possessions as may be in the possession or control of the party at the date of these orders. 

7. That, in the event that the orders herein contain a direction for either the husband or the wife, or both of them, to execute any instrument or document, and that person refuses or neglects to comply with that direction, then the Registrar of this Court will be appointed - pursuant to section 106A of the Family Law Act - to execute any such document or instrument, in the name of the party in default of execution, or in the name of the person to whom the direction was given; and the Registrar may do all acts and things necessary to give validity and operation to the document or instrument.

8. That, if necessary, any costs that may arise from such a situation shall be reserved.

9. That either party have liberty to restore the matter to the list, in respect of implementation or enforcement of these orders, upon giving 14 days' notice to the other party.

10. That all outstanding applications and cross-applications be and are hereby dismissed.

11. That all issues be removed from the Active Pending Cases List.

12. That all material produced on subpoena be returned not before fifty-six days from this day.

13. That payment is to occur on 24 April 2009, unless by 5 pm on 23 April 2009, an application is filed setting out, with precision, the dates upon which the reservation of costs was made and the amount claimed in respect of each such reservation. That application is to be listed before Justice Collier by arrangement with his Honour’s Associate, at the earliest opportunity in the following week or the week thereafter. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1803 of 2005

MR BALZIA

Applicant

And

MS BALZIA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter has followed a most unusual course.  The hearing commenced before Waddy J and was conducted on 16, 17 and 18 April 2007, and 17, 18, 19 and 20 September 2007.  Thereafter, and prior to judgment being delivered, his Honour became ill and, at a time when it was unknown whether his Honour would return to the Bench or not, the hearing before him was vacated by me, orders were made for the further conduct of the matter, and a certificate - pursuant to the Federal Proceedings (Costs) Act 1981 was issued. It was agreed, when the matter was mentioned before me, that I was to read transcript of the prior proceedings and the copies of that transcript were to be made available to each of the parties, and, so far as I am aware, this was done. I have endeavoured to read and understand the whole of the transcript material taken before Waddy J.

2. The parties in this case are litigating about:  (1) the future arrangements for their three children; and (2) what is to be done with their property, following the breakdown of their marriage.  During the marriage the parties had accumulated a number of properties and the husband had built up some quite significant superannuation.  All the properties have been sold and there remains available for distribution a fund of moneys, to which I will refer shortly.  In addition, the husband has two amounts of superannuation; one significant, one less significant - and the wife has superannuation in an amount of approximately $10,000. 

3. As to the children, it is the husband's case that he is a loving and concerned parent and should be given the opportunity to participate to the fullest possible extent in the lives of his three children.  He asserts that the way that this ought be done is for him to have, firstly, equal shared parental responsibility, and second, that the children live time-about, on a fortnightly basis, with he and the wife.  There are a number of orders that he would seek concerning holiday time and other special occasions, but, basically, what he seeks is an equal division of time. 

4. He asserts that the wife terminated the marriage in a circumstance of which he had no proper notice, that on two occasions she has endeavoured to use apprehended violence orders, to place him at a disadvantage in this particular case.  He asserts, and I will return to this later in the reason for judgment, that his contribution to the assets of the parties has been superior to that of the wife. 

5. The wife's case is that the husband presented some violence towards her so that at the end of the marriage, it was simply impossible for her to carry on.  She asserts she is the person best capable of caring for the children and proposes that she continues to do so, with the father seeing the children on a weekend basis, in alternate weeks.  In addition, she says there should be one evening, but not overnight, during the week. 

6. So far as property is concerned, she asserts that she made a significantly greater contribution than the husband at the commencement of the marriage and that that should be recognised, and, in addition, pursuant to the provisions of section 75(2) of the Act, that she should be allowed a further adjustment in her favour. 

7. The major assets of the parties, apart from superannuation, consist of a fund of money and other items.  There is dispute concerning how much is to be added back into the pool of assets, representing proceeds of a sale of shares.  I will return to those matters later in these reasons for judgment.

8. The wife had, until the commencement of this hearing, maintained a claim for spousal maintenance.  That claim for spousal maintenance was abandoned at the outset of the hearing. 

The Parties’ Applications and Orders Sought

1. The husband commenced these proceedings and thereafter filed an amended application for final orders on 6 September 2007.  The wife’s amended response was file don 15 November 2006.  However, during the course of the presentation of the matter before me, each of the parties handed to me a proposed minute of the orders he/she sought.  (The father's proposal is that the parties have equal shared parental responsibility, that the mother and father have day‑to‑day responsibility for the children whilst in their care.)  The father seeks that the children be entitled to participate in activities and, unless the parties agree in writing, the children are to attend primary and secondary schools within the area comprising the Blacktown, Hawkesbury and Penrith local government areas. 

2. The father then sets out how the arrangement he proposes is to be achieved. 

3. As to property he proposes that the wife receive an amount from the fund, that he receive the balance of that fund, and that an amount of superannuation be allocated to the wife, pursuant to a splitting order. 

4. The wife, for her part, seeks that the children live with her and that, in joint consultation with the husband she be responsible for making decisions in relation to the long-term care, welfare and development of the children.  That, I must say, causes me a little concern as to precisely what it means, particularly when looked at in the overall context of her proposed orders.  In any event, she proposes that the oldest child, M, spend time with her father, in accordance with the child's views, that there be specific times for each of J and R, and that there be other times, including school holidays.  She speaks of suspension of times during certain periods.

5. Paragraph 12, when coupled with paragraph 2 of her document, causes me concern.  The mother says, except for situations of emergency, the wife and husband to have joint responsibility for decisions concerning medical and surgical operations, medical, dental and physiotherapy and alternative medical treatment, whilst allowing the children to continue present medication.  To my mind, when one combines those two orders, one is looking at something that very closely resembles equal shared parental responsibility, perhaps by a slightly different name. 

6. As to property, the wife asserts that she should receive the whole of the funds presently held arising from the sale of the three properties; she asserts that, of the husband's superannuation, some $59,745 should be allocated to her, pursuant to an order for splitting. 

Brief Background

1. A brief background to this matter is as follows. 

2. The husband was born in 1969.  The wife was born in 1974.  The parties married in September 1994 and the child M was born in August 1995.  J was born in February 1998, and R in August 2002.  The parties separated on 26 August 2005. 

The Material of the Parties

1. There is voluminous affidavit material before the Court in this matter, mainly on the side of the husband.  The husband, indeed, has filed in these proceedings an affidavit of 11 November 2005, an affidavit of 13 December 2005, an affidavit of 16 February 2006, an affidavit of 3 March 2006, an affidavit of 26 April 2006, an affidavit of 16 April 2006, and an affidavit of 4 May 2006.  He has filed an affidavit 31 May 2006, 6 October 2006, 19 October 2006, 2 March 2007, 6 September 2007.  He has filed further affidavits in Court at the commencement of these proceedings, which were verified orally by him in Court.  In addition to his own affidavits, there was an affidavit by Mrs B of 15 February 2006, an affidavit of Mr B of the same date (further affidavit of that person was not read). There were affidavits by Mr A Balzia of 31 May 2006 and 26 May 2008. There was an affidavit of Mrs F Balzia of 26 May 2008.

2. The wife, for her part, filed and relied upon her affidavit of 12 April 2007 and her affidavit of 20 March 2009.  She had two further documents, being financial statements, of 12 April 2007 and 20 March 2009.  In addition, there was an affidavit of Ms G of 20 March 2009. 

3. There were filed expert valuers’ reports, but in the end those were not necessary as in determining the matter I was dealing with a pool of moneys comprising the proceeds of sale of three parcels of real estate. 

4. In addition, there were family reports of Ms P of 4 April 2007 and 17 July 2008. 

5. In addition, there have been a number of Court orders made in this matter.  So far as the children's issues are concerned, the last of those orders was an order made on an interim basis, which enabled the children to spend weekends with their father; that being an order made on 9 October 2006. 

6. The matter, as I have said, proceeded in a most unusual fashion, much of the evidence being taken before Waddy J, and some evidence being taken before me.  In the proceedings that were heard before Waddy J, his Honour heard evidence from Ms P, from F Balzia, from the husband, from the wife and further from the husband. Before me, there was evidence from the wife who was cross‑examined by the husband; of Ms P; and of Mr Balzia snr, who gave evidence by phone from Europe, with the assistance of an interpreter present in Court.

7. It is significant that in the hearing before me the husband was not required for cross examination in respect of material subsequently filed by him or indeed for any purpose.

The Evidence before Me

1. I do not propose to traverse the evidence of the parties at any great length; it would take me more time than is available.  I have had the opportunity of observing the wife in the witness box, but not the husband.  However, that, perhaps, is not as wide a gap as might otherwise have been the case, because the husband has conducted these proceedings on his own behalf - if I might say, with some real assistance from his McKenzie friend - and I have had the opportunity of observing him in the course of him conducting himself in the running of his case, both in cross‑examination and in the making of submissions to me at the conclusion of the evidence. 

2. I found the husband a very determined man.  The impression he has left with me is that he has a belief that the position he espouses is right and brooks no contradiction or argument.  The way in which he has conducted himself - and I say this not to in any way trivialise it - gives me the impression that he is more concerned with obtaining a result that is suitable to him than in truly understanding what is the position, in respect, particularly, of the children.  The illustration of this, to my mind, is that he still wishes to impose a regime on his daughter, whilst giving her some limited right of refusal, for one night in a period.  It seems to me that the father has simply not been able to accept that his daughter (a) is growing up, and (b) has expressed, and continues to express, a wish that she wants to be the person who makes her own judgments and decisions concerning the time she will spend with each party. 

3. It is clear that the children have some complaints about their father's household, but I have been impressed, in reading both of the reports by Ms P, as to the warmth with which father and children interacted when they were observed either actually in sessions with the counsellor, or in the waiting room for the sessions to commence, or after they had concluded. 

4. The father, so far as property is concerned, again, seems to me, to be fixed on achieving what he believes is right in all of the circumstances.  I am not satisfied, however, that the father has in any way told me deliberate untruths, or has endeavoured to manipulate the evidence so as to suit himself.

1. So far as the mother's evidence was concerned, I was, at the end of the day, left to worry about her presentation.  I understand the mother has undergone surgery in respect of a thyroid complaint.  I am unable to say whether that accounted for her presentation before me.  A phrase that I have often seen in judgments is that her presentation was flat, and that is an assessment that, on the evidence before me, I would adopt. 

2. I found that she was someone who found great difficulty in making any appropriate concession concerning this matter.  She was cross-examined at some length by the husband, before me, in relation to enrolment of one of their sons in a new school and, particularly, with the enrolment of him in a class lower than the class in which he had previously been enrolled, in other words, he went from fourth to third.  The husband's complaint about that is that he was not informed. 

3. Having heard the evidence of the mother, he was not informed.  This was something the mother chose to do and, whilst it may have been for all the best motives, and, indeed, it will be remembered that Ms P indicated that, with proper advice, it may well have been an appropriate thing to do, it does not excuse the wife’s failure to notify the husband.  The mother, it seems to me, on that occasion, simply went ahead and unilaterally made the decision, (a) to move schools, and (b) to select a class. 

4. The mother also has relied on a number of apprehended violence orders in this matter.  I am satisfied that, whilst there was an interim order made on one occasion, the apprehended violence allegations against the husband have come to nothing.  One of the unfortunate results, however, of those being employed, is that the husband remains convinced that the wife endeavoured to use this aspect of the law to his disadvantage and her advantage, particularly in respect of possession of the former matrimonial home.  On the whole, I found the mother an unreliable witness.  By that I am not suggesting that she was deliberately untruthful, but it will be remembered that the most truthful person can indeed be unreliable as to recollection or observation.  In this case I am satisfied, whether it be a result of her condition or otherwise, that the mother's recollection and capacity to recall was affected, and she was not able to give her evidence in a manner that I found to be satisfactory or absolutely acceptable. 

5. Ms P, who gave evidence before me, I found to be an expert witness, dealing with matters within her professional expertise and answering as best she could.  She was, indeed, asked a number of questions by the husband.  She conceded that there was a real value in team sports, as it brought children to a degree of socialisation and cooperation; it was also beneficial to health.  She conceded that there was a difference in withdrawing children, or ceasing to allow them to play, at the beginning, rather than partway through a season, and she had some concern the children were not being appropriately involved.  She said, in an ideal world, children would be involved in physical activity.  It was put to her that her second report indicated that the children were concerned about getting to school late.  The father put to her that if lateness was not a problem, then, that somewhat removed the need to be with the mother during school weeks.  Ms P’s reply to that was that the children were worried that they might be late, but, if they were not late, those concerns were lessened.  In respect to the grading situation to which I have already referred, she said that the child may have been relieved, if he was not coping.  I have no evidence of that before me.  She also indicated there may be a different standard between schools.  I do not propose to set out the evidence that she gave before Waddy J; it is lengthy and is covered in transcript.  At the end of the day, however, I found Ms P’s evidence and her two reports were of significant value to me in reaching a conclusion in relation to this matter.

History of the Matter and Findings

1. It seems that I am, therefore, able to deal with the history of this matter as to what indeed happened during the course of the parties' marriage.  I have already set out a brief background, but I am able to amplify that to a significant degree, and I am able to say that the factual dispute between these parties about what happened is not particularly great.  The underlying reasons, and how particular events happened seem to me to be of more significance than when and if.  In any event, I am satisfied, as I say, that the parties were married in 1994.  Prior to that, in 1992, they had purchased a property at W Street, for which they paid $126,000.  There was:  an interest‑free loan from the wife's parents; a low interest rate from the wife's sister; a loan from the husband's brother of $20,000, to be paid with interest; and $36,000 in joint savings.  A mortgage was raised.  Between 1992 and 1994, members of the husband's family, including the husband himself, resided at that premises.  In September 1994 the parties married and, thereafter, resided at that address, W Street. 

2. In 1995 and 1998, M and J were born.  In 2000, the parties bought the property, S Street for $173,000.  They borrowed more than the purchase price - in fact, the sum of $195,000 - from Suncorp.  That property was subsequently rented. 

3. In August 2002 R was born.  The wife asserts that between November 2003 and 2004 she was working as a night filler at a supermarket, commencing with three nights and then increasing to five nights a week. 

4. In May 2005 the parties purchased Y Street.  That property was purchased for approximately $412,000 and a mortgage, again, was raised for a sum greater than the purchase price; an amount of $452,000.  The parties thereafter moved to Y Street and it became their family home.  By the end of 2005, the wife had left employment at the supermarket.  In August 2005 the wife left the former matrimonial home and moved to her parents' and, it is common ground, the parties separated on or about 26 August 2005.  In September of that year, the wife returned to the matrimonial home.  A complaint having been made by the wife, an interim apprehended violence order was made in favour of the wife as against the husband.  In November 2005, the husband sold some shares - I will return to this aspect later in these reasons for judgment, as it occupies some significance. 

5. Starting in November 2005, the father commenced to have weekend contact with the children.  At about this time, the parties were each filing applications for various orders.  On 1 February 2006, the wife withdrew an AVO application.  At that stage the husband endeavoured to return to the matrimonial home and the wife responded on 3 February by filing an application that she have exclusive occupation of the home.  The husband filed in response to that and on 17 February there was an exclusive occupation order made.  The husband reviewed that order in March 2006, and again there was a flurry of activity of applications and amended applications being filed by the parties.  On 6 June 2006, the wife then filed a response seeking dismissal of the husband's material, the husband already having filed an application for contravention against the wife.  Orders were made by a Judicial Registrar, dealing with those situations.  There was then leave granted for a review.  Various further orders were made. 

6. The matter then occupied the days that I have indicated at the commencement of these reasons for judgment, before his Honour Waddy J.  The matter then came before me in April of 2008, at which time, in addition to other orders that I had made, it was ordered that the properties be marketed, and this was done, so that, by the time the matter came back before me for conclusion of the hearing, those properties had been sold and a fund of moneys had been realised and was held, on investment, with the solicitors acting for the wife.  The proceeds of sale of W Street, Y Street and S Street, together, amounted to $239,076, held in the trust account of Maloufs Solicitors.  

The Law Relating to Parenting Issues

1. There are two distinct parts to the proceedings before me. The first of those proceedings concerns what is to happen with the parties' three children. In dealing with any parenting application, it is clear that the Act sets out the matters with which I must deal. The first of those matters is section 60B of the Family Law Act, which contains the objects of the Act and the principles which are to be applied.  The objects are:  to ensure that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent, consistent with the best interests of the child; to protect children from physical or psychological harm, by being subjected to, or exposed to, abuse, neglect or violence; ensuring that children receive adequate and proper parenting.  The principles that then underlie those objects are that:  children have the right to know and be cared for by both parents; they have the right to spend time on a regular basis with, and communicate on a regular basis with, both parents; and parents should jointly share duties and responsibilities concerning the care, welfare and development of their children. 

2. The next section to which I must have regard is section 60CA, which tells me, in deciding whether to make a parenting order, I must regard the best interests of the child (in this case, children) as the paramount consideration.  Section 60CC tells me how this is done.  In section 60CC(2) I am told that there are primary considerations, being:  the benefit to the child of having a meaningful relationship with both parents; and the need to protect the child from being subjected or exposed to abuse, neglect or violence.  Whilst not in precisely the same terms, those two matters, in my view, echo very closely the two objects contained in subparagraphs (a) and (b), to which I have already referred.  Clearly then, it is a balancing exercise.  The benefit to the child is to be considered, but taken against it is the need to protect the child from physical or psychological harm. 

3. The mother has made one allegation, as I understand it, of the father pushing J, and the evidence on that does not enable me to form any concluded view.  To my mind, the real assistance in reaching a determination in this case is perhaps to be found by a close and careful consideration of the matters set out in the next subsection, described as "additional considerations".  First views expressed by the children, in this case, and factors underlying the weight that should be given to those views (section 60CC(3)(a)). 

4. The views of the children are set out in detail in each of the two reports, to which I have referred, by Ms P.  She indicates in her second report that there has been a change.  It seems that the children's wishes, as I take them from that report, might now be summarised in this fashion:

5. M, who is described as being confident and articulate, is said to hold strong views and is not always tactful as to how she expresses them.  She described to the family consultant that she had been upset by a number of incidents involving her father and her school.  The complaint was that the father had insisted that she organise a timetable for him to meet with teachers and, after she had done so, he did not attend.  She also indicated that the father became angry with her when she forgot to bring material to him.  She says that there was an argument with him just before she went for interview concerning her enrolment at V College. 

6. At paragraph 30 of the report, the counsellor indicated that M had indicated that she wanted to choose when she spent time with her father, and the length of time she spent with him, and how often she would speak to him on the telephone. 

7. She indicated a preference of going to school from her mother's home and described preparation of lunches and assistance in getting ready.  She also made a complaint about the husband's use of water in his home and, apparently, some attempts at conservation.  Again, in paragraph 36, it is reported, when asked what she would do, or how she would respond, if it was ordered that she spend half her time with the father, she indicated that she wanted to choose the time she spent with him. 

8. This child has, of course, with her brothers, been exposed to the ongoing conflict between these parties, which from what I have heard and read, has been consistent and persistent since the parties' separation.  She has grown into her teen years knowing that the parties continue to wage warfare over her and her brothers, and I am satisfied that she is expressing a wish that is one of sound basis, so far as she is concerned.  She is, on the evidence I have read and heard, at a stage where she simply wants to be left in control and she believes that she is mature enough to exercise such control. 

9. I am loath to say that a child should make significant decisions, if the parents are capable of making decisions for that child.  However, it seems to me, with what has occurred in respect of M since the separation of these parties, the situation has now been reached that she should have her wishes very largely respected.  In my view, any attempt to bind this child by any order, whether it be the order the father seeks, which would have her spend half her time with him, or whether it be the order that the mother seeks, which would ensure considerably less time with the father, the child is simply not going to accede; and, in my view, to compel her then, in the face of her opposition, to do so would be very counterproductive and potentially harmful for this child. 

10. The views of the boys are in a somewhat different position.  J was also described as confident and cooperative, a young man who communicated easily.  He indicated that, since an earlier report - to which I have made reference - had been prepared, his attitude to his father had changed.  This seemed, as I understand the report, to stem from experiences during time with his father, but, further, and this was commented upon by the consultant, he had become defensive of his mother, in the face of his father's ongoing criticism. 

11. It was reported:

    "[J] particularly reported that his father always argued with mum, whenever she goes to tell him something.  'He drops us off and always causes an argument.'"

12. There was mention of go-carting and there was J’s observation that his father seemed to favour R, the youngest child, over himself and M. 

13. He is also reported as being critical of the father for allowing his friend, Mr C, to tell M to shut up.  J made comments about enjoying time with his mother and he said that, faced with criticism of her by his father, he was satisfied there was nothing wrong with mum and she loved all the children. 

14. R, nearly six at the time of the interview, was interviewed only briefly, and proved to be highly distractible.

15. It seems to me, therefore, that two of the children, M and J, are expressing clear views.  I do not take into account any purported view expressed by R.  M is quite firm in her view that she be allowed to decide, and J, certainly, has become more defensive of his mother and less appreciative of his father as time has progressed.  The reasons for those feelings are, I suspect, to be found when dealing with the later sections of this particular matter, in relation to the various subsections that I must subsequently consider. 

16. The next of those matters is the nature of the relationship of the child with parents and other persons (section 60CC(3)(b)).

17. I am satisfied that the children have a relationship with their mother which is close and loving.  When the children were observed with their mother in the last report, it is commented that M welcomed her mother with a hug, that J took her away to play, and that R continued to play on his own.  I am satisfied that the mother has, subject to specific matters that I will raise shortly, endeavour to do her best to ensure that her relationship with the children has been the best possible relationship. 

18. So far as the father is concerned, he - I am absolutely satisfied - has done everything he can to have the children have the best possible relationship with him, and he with them, that can be achieved.  Regrettably, it appears from the evidence that I have read, particularly, that the father becomes somewhat impatient with the children and the children have all, at various times, commented upon his anger.  There is also evidence that alerts me to the fact that he criticises the mother in front of the children, in a way that I am not able to detect occurs in reverse in the mother's household.  It has been noticed that J, particularly, seems to have become more defensive about his mother with the passage of time. 

19. I am satisfied that the father does not appreciate the effect that his behaviour, at times, has upon the children, and I am satisfied that his relationship with the children is also somewhat affected by the fact that his major preoccupation is to be found justified in his criticisms of the wife, rather than putting the children's best interests at the forefront of consideration.  Having said that, and I will return to it shortly in these reasons, I am satisfied at times that the mother has not always been conscious of the children's best interests, when their activities and interaction with the father have been involved.

20. The children also have a relationship with their maternal grandparents.  It is observed that the children were pleased to see them.  Their interaction with their paternal grandparents was observed and it is, to my mind, of some significance that the children seem at times to have said that when their father has them he always takes them to his parents' place, and this is something with which they are not in complete agreement. 

21. I am satisfied that there are no other persons that I need take into consideration in this account.  There is no evidence before me, nor do I assume, that either party has repartnered. 

22. Subsection (c):

    "The willingness and ability of each of the child's parents to facilitate, and encourage, a close and ongoing relationship between the child and the other parent."

23. The mother, I am satisfied, does not appreciate the need for these children to have a relationship with their father to the fullest extent possible.  I am concerned that, to some extent, she considers her needs to be the needs of the children and acts accordingly.  In other words, I am not satisfied, on what I have heard, that the mother is always capable of, herself, concentrating on and identifying the needs of the children when those needs are not exactly aligned with hers.  I am satisfied that this also a difficulty of the father.  For the reasons I have already set out, I am convinced that, at times, there is a situation where the father is more concerned with being found right in the position he takes, than in focusing on, and acting in accordance with, the needs of the children. 

24. The next matter I must take into account is the likely effect of any change in the children's circumstances, including the likely effect of separation from either parent and any other child (section 60CC(3)(d)).  This raises for me a particular difficulty in this case, and that is that it seems to me that, if I am to give real regard to the views expressed by M, it is highly probable that the eventual orders that I make will have to, indeed, involve separate situations being put in place for each of the children.  Thus, if M did not see her father on all occasions and for the same times as her brothers, then there would be an element of separation as between the children.

25. Further, in her proposal before me, the mother indicates that there should be a situation where the two boys are treated somewhat differently for a period of time.  That, again, would reinforce a difference between siblings in this situation. 

1. However, the major change that I have to consider is the change proposed by the husband, which is that, henceforth, the children spend equal time, on a fortnightly basis, with each parent.  That, to my mind, would be an enormous change for these children.  It would mean that, in every sense of the word, instead of having one home, they would need to have two.  They would have to attend school on an equal number of occasions, or very nearly so, from each household.  It would mean they would have to come to terms with living with their father for precisely the same amount of time as they lived with their mother.

2. On the material that I have read and heard, to impose that upon M could well be the first step to disaster.  Ordering her to spend time with her father is something that would not occur.  It would end up with father and daughter being placed in a situation of confrontation. 

3. So far as the boys are concerned, and I will deal with the boys together, this is a situation where they also would find themselves - against their express wishes - being in a situation of spending equal time with each parent.  The boys have made it clear that they like things very much the way they are, and a change to the extent that the husband proposes would, in my mind, be to put both boys, but particularly the older boy, in a very difficult and perhaps unhappy situation that might well have an effect upon his wellbeing. 

4. The practical difficulty and expense of a child spending time and communicating with each parent (subsection (e)), in my view, is not of major consequence in this matter.  If orders I make require the parties to have the children move between them in some fashion or other, I am satisfied that that can be achieved with a minimum of disruption to the children.

5. I turn then to the capacity of each of the child's parents and other persons to provide for the needs of the child, including emotional and intellectual needs (subsection (f)). 

6. The father's case, as I understand it, is that his criticism of the mother is largely based on her inability to engage, or permit the children to engage, in activities that he sees as being very important to them.  I do not understand him to say that the mother cannot look after the children in a day‑to‑day sense and provide for their needs of housing, feeding, clothing and attending school.  However, very much of his case is centred on the fact that the mother seems to have no appreciation that the children will benefit from any reasonable involvement in activities outside the home which may stimulate and excite them. 

7. Particularly of reference here are:  (1) M’s involvement in craft; and (2) J’s involvement in soccer.  The evidence of the mother caused me some concern, in respect, particularly, of M.  I am satisfied, from what I have read, that M has, in the past, taken a real interest in craft.  The father, I am satisfied, has encouraged the child in this regard.  The mother, however, seems to be entirely indifferent to the benefits that may flow to the child from this activity. 

8. J’s soccer is another issue; the mother simply seems to find it too much trouble or effort to involve herself in what is required in ensuring that J participate.  I am left to wonder if it is not as a result of her medical condition that she has what might be observed - and has been observed by me, during the course of the hearing - to be an almost uninterested approach to matters.  I may be doing her a great disservice, but it seems to me that there is no other explanation for her lack of interest in involving her children in activities that they have enjoyed.  Little athletics seems to have gone by the board and it seems to me that the blame and fault for that can be laid entirely at the feet of the mother.  The father certainly is anxious that the children continue to participate in activities.  He has, indeed, sought in his minute of order that the children be involved in an activity and that, in the event of any difficulty, he be the final arbiter. 

9. I am satisfied that the father can, on a day‑to‑day basis, care for the children, feeding, clothing, housing them, although it is clear that the children, particularly M, have expressed some disquiet at the conditions in his home at the time she spoke to the counsellor on the last occasion, and the children all seem to be saying that their father always takes them to their grandparents' home, which seems to be said, in some way, as a criticism of the father for doing that. 

10. I am satisfied that neither party has a particular focus on the emotional needs of the children and I am satisfied that this, to my mind, is something that concerns me in each of the party's situations and cases. 

11. The next subsection, concerning Aboriginality, is not applicable.

12. The next subsection which is applicable is that I must consider the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child's parents (subsection (i)).

13. It seems to me that the mother has - in the way she has presented herself in these proceedings, in any event - taken the position that she really does not want the father to be involved, nor does she want to communicate with him, even to the extent of advising of him things which do not necessarily require a decision.  That is, of itself, important.  I am satisfied that both parents love the children and I am satisfied that both parents believe that they are doing what is best for the children; in the mother's case, by endeavouring to limit the time the father spends with the children; and, in the father's case, by him seeking to greatly expand the time that he has the children. 

14. I am satisfied that the mother has not discharged the full responsibilities of parenthood that might be seen to be in her keep, because the children live, at the present moment, basically, with her,  and she has not, as I have already set out, dealt with the children's extracurricular needs to what I would consider to be a satisfactory level. 

15. The father, on the other hand, appears to be almost over-responsive to this lack on the mother's part and it seems to me that, at times, instead of seeking to correct the situation, the father is more concerned with proving the mother wrong. 

16. I am satisfied, however, that both parties have at least an appreciation that the children need to be educated to the best of their ability and, so far as possible, be encouraged to do what they can, commensurate with their abilities, to give themselves the best opportunity for further education.  I am concerned to some extent by the change of J’s school and placing him in third, rather than fourth, class.  I would have been more satisfied with the mother's position, had there really been a genuine and real attempt to involve the husband in this decision‑making process.  Indeed, changing of schools is one of the matters that clearly causes the father concern, and in his minute he has sought to impose some form of restriction on what can be done about the children's schooling.

17. The next two subsections involve family violence (subsection (j) and (k)).  There are certainly no family violence orders in force and I am satisfied that the only order that ever was in force was an interim order.  I am satisfied that that order was never made final and I am satisfied that, in respect of the second application, the mother withdrew that application before any order was made. 

18. Section 60CC(4) deals with the extent to which each parent has failed, or fulfilled, their responsibilities as a parent.  The first of the subsections is that I must consider the extent to which parents have taken, or failed to take, the opportunity to participate in decision‑making.  The second is, "has facilitated, or failed to facilitate, the other parent so doing".  In this case, as I have said, my concern is that the mother seems to be of the belief that it is not necessary for her to communicate in a meaningful and sensible fashion, nor a timely one, with the father in respect of matters that are of significance, because they concern long-term issues in respect of the child.  The father, I am satisfied, has endeavoured to become involved in decision‑making, but has found that it has been difficult, and - I am then satisfied - has overreacted in respect of the situation and the inability to communicate effectively with the mother.  This series of matters that I have identified clearly highlight the very vast difference that is between these parties in their styles of parenting and illustrates the ill-feeling that has now attached to their parenting of these children. 

19. The next of the subsections to which I must have regard is section 61DA(1).  That tells me that:

    "When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility"

20. A note to that subsection points out that it is a presumption relating to allocation of parental responsibility and is not involved with time.  The section goes on to say that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. 

21. In this case, as I have said, there have been a number of attempts to obtain apprehended violence orders.  Those attempts have been unsuccessful.  To my mind, this is not a case where the presumption is not to apply.  Indeed, in the course of final submissions, Mr Macpherson, for the wife, made it clear that this was not a case where he was relying upon subsection (2), the non‑application of the presumption, but, rather, subsection (4), which provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  The wife's case in this regard is simple:  "We cannot communicate.  Therefore, it would be pointless to have equal shared responsibility, and it would only make the situation more intolerable."  The husband says that there is nothing to rebut the presumption. 

22. This is a situation where, clearly, communication between these parties, to this stage, has been far, far from satisfactory.  However, it seems to me that the mother is the person who has largely acted unilaterally in this situation.  It seems to me, therefore, that there would be an element of injustice for her to say, "I simply won't talk to him.  Therefore, there is no point in us having an order for equal shared parental responsibility."  Both the parties, in their minutes, to which I have already made reference, cause me concern, in that they both seem to want to have the final word.  The mother, for her part, is unashamedly saying that she should have the responsibility for the children, although, as I say, orders (2) and (12) cause me some concern, because she herself, in order (2), posits that, in joint consultation, she be responsible for making decisions in relation to the long-term, care, welfare and development of the child; and in (12) she says that the parties have joint responsibility, except in case of emergency.  The father, for his part, asserts that, if the parties cannot agree, particularly in relation to the children's extracurricular activities, he would exercise final responsibility. 

23. The father does not seek for himself sole parental responsibility for these children.  The mother, with some vague promise of consultation, does.  If the mother were to have sole parental responsibility, I am concerned that she would simply ignore the father, rather than actively proceed to shut him out.  I am satisfied that, notwithstanding her own application that she consult with the father, there would be no meaningful or real consultation.  I am aware that to require these parties to exercise a joint responsibility is going to make things somewhat difficult for them.  Certainly, I have nothing in the past that I can look to as an indicator that they will endeavour, regardless of what I say (and this is mainly aimed at the wife), to speak with each other.  There is a suggestion that the parties may both benefit from courses that are readily available through various non‑government agencies. 

24. I have given consideration, as urged by the father, to make the parties attend by virtue of an order.  In my mind, that would not be particularly useful in a case such as this.  To compel the mother, particularly, to do something which she does not want to do, would only act to worsen the situation.  If, however, the mother, once she has considered what has been done here today, can satisfy herself that - difficult though it might be, particularly in the short term - it is absolutely necessary, for the welfare of these children, that the parties do communicate for the future of these children, she might think that a course of such kind would be of assistance to her. 

25. I am equally concerned:  that, if I were to make the order the father seeks, that gives him the final word in respect of extracurricular activities; that, no matter what the wife said (and I suspect she might say very little), he would simply feel, and be vindicated in his belief, that this was a matter for him, and him alone, to decide and put into place.  I am satisfied that there needs to be some appreciation of the children's needs for activities other than school and home.  I am not for one moment going to take the step of saying that any of them should follow a particular bent or sporting activity.  I am aware, in the past, of J’s participation in soccer and M’s interest in craft.  Both these situations need be encouraged. 

26. The other thing that is clearly an issue between the parties is the schooling of the children.  The husband, in his minute, has indicated that, unless the parties agree in writing, the children are to attend primary schools in certain local government areas.  That, to my mind, completely misses the point of equal shared parental responsibility.  The decision about schools, about religious upbringing, about health, to my mind, are the pillars of the matters that are to be required to be considered for equal shared parental responsibility.  Put another way, the father cannot have it both ways; he cannot say, give me equal shared parental responsibility, but make specific orders about certain things - ie schools and sporting activities.  If the parties are to have equal shared parental responsibilities, they are the very things that are to be considered and negotiated and agreed and put into effect by parties having equal shared parental responsibility. 

27. To my mind, the easy way in this case, for myself and perhaps for the parties, would be to let one party or other have sole parental responsibility and perhaps indicate, as the mother seems to have endeavoured to do, that there be certain areas in which consultation is required.  To require these parties to consult and deal with each other, as would be required if they have equal shared parental responsibility, is - certainly for the immediate future - to present them both with a difficulty. 

28. Nobody promised them, or either of them, that being the parents of children was easy.  In my mind, if I were to give sole parental responsibility to the mother, the danger and difficulty in this case would be that the mother - however it came about; by indifference or by deliberate act - would not communicate with the father and the father would simply be left completely adrift, so far as any ability to participate in decisions of concern.  If I make the orders the father seeks, then, in respect of an agreement in writing about schools, that completely avoids the point of equal shared parental responsibility.  An order in the event of a difficulty or no decision being reached in respect of activities means that he is not asking for equal shared parental responsibility; he is asking that he have the final word. 

29. It is with some misgiving - but, nonetheless, my decision - that, in the circumstances of this case, the evidence that has been presented has not rebutted the presumption.  Whilst I am aware that to leave the presumption in place, as I have already endeavoured to explain, may cause some difficulties for the parties, in my view, it is clearly in the best interests of these children that both parties, however they do it, be involved and have equal responsibility for the long‑term decisions concerning their welfare.  Accordingly, I propose to order that the parties have equal shared parental responsibility.  I am not sure that, in making that order, I have not caused them more difficulty than otherwise, but I am satisfied that the father is determined in his requirements that he be kept involved in the children's lives.  I am determined, and quite satisfied, that if I do not do this, the mother will not involve the father to requisite, or required, standard.  Clearly, the legislators have considered that the presumption is to be maintained, unless displaced.  It is clearly now one of the fundamental principles underlying the Act and, in the circumstances of this case, as I have said, I propose to make an order for equal shared parental responsibility. 

30. That then takes me to the next of the subsections that I must deal with, which is section 65DAA(1).  That deals with considerations, not presumptions, as to time to be spent with each parent, in the best interests of the child.  Section 65DAA(1) says that:

    "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility, the Court must:

    (a) consider whether the child spending equal time with each of the parents would be in the interests of the child; and

    - is reasonably practicable -

    if it is, consider making an order to provide for the child to spend equal time"

    Secondly:

    "If:

    (a) a parenting order [is to provide] that a child's parents are to have equal shared parental responsibility; and

    (b) the Court does not make an order for equal time - "

    then, I must consider the child spending substantial and significant time with each parent and consider whether that would be reasonably practicable.

31. It is made clear in subsection (3) that substantial and significant time will be taken to exist if the time the child spends with the parent includes both week and weekend days, holiday and non-holiday days, and that the child spends time with the parent, so as to allow the parent to be involved in daily routine and occasions that are of particular significance.  In determining reasonable practicality, I must consider how far apart from the parents live from each other, the parents' current and future capacity to implement an arrangement, and their future capacity to communicate with each other to resolve difficulties.  I will deal with those in reverse order.

32. I have already made orders (or indicated my proposal to do so) that will require the parties to communicate with each other, so as to exercise equal shared parental responsibility in respect of these three children.  I have made the comments that I would choose to make about the difficulty, I am sure, that this will create, but I am of the view that the parents, with these proceedings behind them, and perhaps with some focus from these reasons for judgment, can concentrate on the children and stop the fight between themselves.  The need to communicate is not an opportunity for the parties to denigrate or fight with each other.  It is an opportunity for the parties to express views and reach an agreement.  One of the things I asked of the husband during cross‑examination is what is to happen if an impasse is reached, and it was clear, as it had to be, that there was no ready answer.  He mentioned mediation.  To my mind, as I have already said, the parties may well consider courses that would assist them.  Certainly, if the matter is to be brought back to this Court for any reason, it will need first to be dealt with by a family relationships centre, and the mediation provided there. However, once again I express my hope that, with these proceedings over and finalised, the parties can move on from that. 

1. The parties live in reasonable proximity and I am satisfied that they have a capacity to implement such arrangements as I propose to put into place.  A question then is:  should I order equal time, as proposed by the father, or should I order such less time that the mother proposes, or should I, indeed, make orders altogether different from the proposals of either of the parties.  The requirements of the Act are that I consider equal or significant and substantial time.  It seems to me that, dependent on what I have already said, the orders that I am going to make really concern only the two boys.  I have made it clear that I believe that M’s wishes must be respected in this regard. 

2. One would hope that, as it is to be her wishes, both of these parents have enough respect and love for their daughter that they are not going to put her in the middle of the situation and badger or, in other ways, try and encourage her to make a decision that would please them.  To do so would indicate that that parent did not have M’s concerns at heart. 

3. Thus I must decide firstly; do I order both boys to spend fortnights-about with their father or not?  One of the main considerations I have here is that the children do not want this to happen.  J, particularly, has formed a view that allies him to some extent with his mother.  It may well be that the father says, "He has no need to take that stance and if he were allowed to spend the time with me that I wish him to, then, that would be a situation that would disappear."  However, I have come to the conclusion that the change required, as I have already endeavoured to deal with, in making an order for these children to live fortnight‑about with their father would simply not be in their best interests.  That means, of course, that I must turn to significant and substantial time.

4. I have indicated what is required in an order for significant and substantial time.  To my mind, there must be more than simple weekend time.  There must be an opportunity for the father to involve himself in the children's activities.  He must have an opportunity to be involved with their schools.  It is clear, of course, having regard to the fact that I have made an order for equal shared parental responsibility, that he is to have an equal say in what schools the boys attend. 

5. It seems to me, one of the things I must consider is the children's extracurricular activities.  I have already made mention of J’s soccer.  I am of the view that the father should have weekend time with the children, that is the two boys, greater than the weekend time with the mother, to give the father an opportunity to work, particularly with J, to involve him in extracurricular activities.  He would also, it would be hoped, endeavour to involve his daughter, not without crossing the grounds and boundaries of persuasion to which I have already made reference, but in an appropriate fashion to assist her to regain an interest, or maintain an interest, in her chosen or preferred activities.  Her interest in arts comes to mind. 

6. However, as I have said, it is not just weekend time.  Whilst I am aware that there seemed to be some assertion by the children that they did not like going to school from their father's home, it seems to me that, on the weekends the father has the children, for him to collect them from school and for him to return them to school on Monday morning would be an appropriate order.  It would present him with the opportunity of conferring with the children's teachers, either before school on Monday or after school on Friday.  However that is not enough.  In my mind, there needs to be another occasion during the week where the children not only see their father but stay overnight with him.  I have decided that in all the circumstances it is appropriate that the father have two weekends in three, from after school Friday until before school Monday, and that, in addition, he have the boys from after school Wednesday to before school Thursday.  In addition, there will be an order for school holidays and other specific times that I will refer to when I make formal orders.  It seems to me that those orders meet the requirement of giving effect to the consideration of what is meant by "significant and substantial time".  If one does the mathematical exercise, it works out to be some nine overnights in 21 days, which, on a purely mathematical basis, is not all that far short of half.  Those then are the orders that I will make at the appropriate time in respect of the children's issues.   

Property

The law to be applied

1. So far as the property issues are concerned, the law to be applied in respect of property matters is laid down by a line of important and decided cases.  It is clear that the Court has a discretion to make orders altering the interest of parties in property, which, for the purpose of this statement, can include superannuation, provided the Court is satisfied that such orders are appropriate, just and equitable. 

2. The Court is obliged, by the provisions of section 79:  to take into account the financial and non-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 property of the parties, or either of them; to take into account the contribution made by a party to the marriage to the welfare of the family, including contribution made in the capacity of homemaker or parent.

3. The Court must then take into account the matters referred to in section 75(2), so far as they are relevant; to take account of any order made affecting a party to a marriage, or a child of the marriage, and to consider child support. 

4. Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to contributions and a prospective element relating to the 75(2) factors.  According to guidelines established through that same series of cases, the Court should determine the following matters, and the determination should be based on the evidence:

5. Firstly, determine the assets, liabilities and financial resources of the parties; secondly, consider all relevant contributions of each party and assign, if possible, a percentage entitlement; thirdly, consider the prospective components of the claim of each of the parties, pursuant to section 75(2) and, if necessary, identify any alteration to the contribution percentages; fourthly the Court is required to stand back, as it were, from the decision reached on those bases and ascertain that it is, in all the circumstances of the case, just and equitable. 

The assets and liabilities of the parties

1. The first thing I must then do is ascertain the pool of assets of the parties available for distribution.  This is a case where I must have regard to both the superannuation and non‑superannuation assets.  So far as the superannuation assets are concerned, I will place them in a separate pool, as I believe I am required to do by the decision of the Full Court in Coghlan and Coghlan[1], and I will return to that further in these reasons for judgement. 

   [1] (2005) FLC 93-220

The non-superannuation pool

1. So far as the non‑superannuation assets are concerned, the only bone of contention, or disagreement, that remained after the parties had had some discussions concerning motor vehicles was what was to be done in relation to adding back a sum of money, for moneys taken by the husband from the proceeds of shares that it was common ground he had sold.  The situation concerning these is somewhat difficult to follow.  The father had proposed that, instead of the full amount of $79,100, there should an amount of $20,000 added back, and that was his concession. 

2. The father clearly indicated that he had expended, and been required to expand, two amounts by way of taxation that arose directly from the sale and disposition of those shares.  The two amounts of tax were $4070.50, and $4591, for a total of $8661.50.  Further, the husband says that he was invited to use those funds.  There is no doubt, as established by annexures E and F to his affidavit of 22 June 2007, the legal representatives of the wife indicated that he had shares to which he could have resort for living expenses.

3. I gather I am asked to infer by the husband that this invitation, clearly made in those two letters, went further and indicated that, if he did so, there would be no penalty.  Firstly, the letters do not say that.  Secondly, even if they had, that would not of itself have prevented the Court from taking the moneys into account if it was considered appropriate to do so.  Those letters, to my mind, are no bar nor in any way interfere with my discretion as to any amount that I might add back.  Finally, the husband relies upon a spreadsheet, which became exhibit E in the proceedings.  As I understand it, it was the third in a series of spreadsheets in which the husband had endeavoured to set out precisely what was received and precisely what was expended.  He has clearly spent a good deal of time and effort in producing this document. 

4. What I am unable to do is isolate completely what was offset against what, because the income of that spreadsheet is more than the sale proceeds of the shares, and the expenditure is varied.  Clearly, the husband has paid money that is required in respect of mortgage indebtedness.  Clearly, he has had to re‑establish himself, he says, because he was effectively evicted from the premises by the wife's ill-fated allegation of domestic violence.  I am unable, beyond the tax that I have already referred to, to come to any concluded, precise mathematical decision of how much the husband expended from the total amount brought in by all sources from the spreadsheet.  Doing the best I can, I have decided that the appropriate amount for me to allow, above and beyond the taxation, is $30,000.  Accordingly, I am of the view that I should deduct from the $79,000, that was clearly the proceeds, an amount of $38,661.50 for the purpose of determining the amount that I should add back.  The mathematical exercise produces a figure of $40,438.05, which is the figure that I will add back to ascertain the pool of non‑superannuation assets.

5. The pool of non-superannuation assets then is this:

Asset	Value
The proceeds of sale of the properties, W Street, Y Street and S Street	$239.076
The amount of share write-back, as previously determined	$40,438.50
Ford Falcon (agreed)	$9,000.00
Toyota (agreed)	$3,000.00
The husband's contents (agreed)	$3,000.00
The wife's contents (agreed)	$5,000.00
The wife's jewellery (agreed)	$4,000.00
Total	$303,514.50

1. There are no debts to be taken into account in determining the non-superannuation asset pool and, accordingly, the pool has a value of $303,514.50.

2. It is then necessary for me to deal with contribution to that pool of assets. 

3. The wife clearly made a significant contribution at the time that the parties acquired the property, by bringing in loans from her family, at either interest‑free or lesser interest rates.  The husband, for his part, brought in some moneys by means of borrowing at that stage.  The husband worked, I am satisfied, very hard during the course of the marriage.  There is evidence, which I accept, that he had assistance from his father which enabled him to perform greater work in respect of installations and, therefore, instead of perhaps installing one item, installed three on any working day.  I am satisfied that that clearly increased his income from that business.  I am equally satisfied that he worked long hours away from the home in all of his outside occupations.  However, that, of course, has a reverse effect face. 

4. If the father was away from the home, working the long hours he did, I am satisfied that the wife was required to care for the children without his assistance.  The marriage is of 10 years and some months.  In that time, the parties, I am satisfied, through the husband's activities, acquired significant real property and, with the assistance of both parties, a shareholding which the husband dissipated and with which I have already dealt.  The situation, so far as I am concerned, however, is that recognising the contributions of the husband, both direct and indirect, from his own labours, from the amounts initially contributed by him, and from the assistance given him, balanced against the wife's contributions, and with full recognition, in no minimal fashion, of her contribution as homemaker and parent, I have decided that the contributions of the parties are very nearly equal but slightly favour the husband.  I have come to the conclusion that that slight favouring produces a differential of 4 per cent; in other words, contribution should be found to favour the husband 52 per cent to the wife's 48 per cent.

Section 75 (2) Factors effecting the non-superannuation pool

1. I then turn to the matters pursuant to section 75(2) that I am required to consider in relation to this matter.  The first of those matters is the age and state of health of the parties.  I have already set out the parties' respective ages and their dates of birth.  So far as health is concerned, there is nothing in the material, that I am aware of, that indicates the father is other than in good health.  The mother's case is that she has had difficulties with a thyroid condition and will continue to have such difficulties into the future.  Indeed, I have already made comment as to my concern that that may have had some effect upon her. 

2. So far as the income, property and financial resources of each of the parties are concerned, I am satisfied the husband continues to work hard and is quite highly remunerated.  The wife, to a significant extent, depends upon a benefit, or government pension, and I am satisfied that her capacity for meaningful employment is significantly less than the husband’s.  I am aware, as I have said, however, of the amount that she receives by way of assistance.  I am satisfied that the husband can continue in his work for the foreseeable future.  I am uncertain as to the wife's prospect of returning to the workforce and I am uncertain as to her prognosis. 

3. Whether either party has the care and control of a child. Clearly, by the orders I have foreshadowed I propose to make, the wife will have the majority of the care of the children.  Having said that, I am, of course, aware that the husband is paying a significant amount of child support.  However, it is made clear, in cases such as Clauson and Clauson[2], by the Full Court, that the receipt of child support does not fully recompense a party for the opportunities forgone and the difficulties imposed by having the care of children.  The parties' youngest child is relatively young and will require ongoing care by his parents for approximately 11 years until he obtains the age of 18 years. 

   [2] (1995) FLC 92-595

4. The commitments of the parties to enable the parties to support themselves, seem to have been, to a large extent, overcome by the sale of the parcels of real estate and the satisfaction of the debt that attached to them.  Neither party has repartnered and, therefore, there is nothing that I must take into account, either by way of the requirement to support another party or whether or not, if cohabiting with another party, that party's financial situation is to be taken into account.  Specifically, the eligibility of a party to a pension is to be taken into account, and I am satisfied that I have done that.  The parties' standard of living - notwithstanding their acquisition of what might appear to have been significant property, the parties appear to have lived quite frugally and it seems to me that the living standards of the parties do not appear to have changed to any great extent as a result of their separation. 

5. To my mind, this is not a situation where any third‑party debt is involved.

6. The duration of the marriage, to my mind, did not affect the earning capacity of either party.  The husband continued to work.  The wife, I am satisfied, did not lose work opportunities simply by virtue of the marriage. 

7. The percentages that I have already arrived at indicate that the husband would receive a slightly greater share of the pool by way of contribution.  Finally, as I have already done, I acknowledge that the father is paying child support and that this is a matter that, in my view, is something that he must receive credit for.

8. I am satisfied that, if there could be seen to be a normal or accepted range for cases of this type, it would seem that that range is somewhere between 10 and 20 per cent; again, I refer to the reported decision of Clauson and Clauson (supra).  In all the circumstances of this case, particularly because of the husband's greater earning capacity, the wife's need to care for the children, as the main caregiver, in day‑to‑day terms, and because of the wife's unknown medical future, and notwithstanding the husband's significant contribution by way of child support, I have come to the conclusion that a further adjustment is necessary.  In my view, the adjustment in favour of the wife should be 14 per cent.  That would mean that the wife's entitlement overall would be 62 per cent.  In that situation, the 14 per cent is an amount of $42,492.  It can be seen that the amount arrived at by application of what would appear to be a quite significant percentage adjustment is a relatively small amount, particularly when having regard to the matters that I have endeavoured to set out.  Accordingly, the property of the parties of a non‑superannuation nature will be divided 62 per cent to the wife and 38 per cent to the husband.

The superannuation pool

1. I turn then to the superannuation pool.

2. There is no doubt that, having regard to the decision of the Full Court in Coghlan and Coghlan (supra), the appropriate way to deal with superannuation entitlements is to deal with them in a separate pool.  In this case, as I understand it, there are asserted to be three amounts for superannuation policies.  The parties agree that the husband's ING policy is $94,448.79.  His REST policy is $5316.08.  The wife’s REST policy is $10,854.57.  It seems to me that no orders are specifically being sought in respect of the two lesser policies.  There is, however, a splitting order sought in respect of the ING policy.  Figgins and Figgins[3] applied a further decision of the Full Court, making it clear that the first step in deciding whether to make a splitting order was a valuation.  In this case I am satisfied that it falls to the parties, as they have done, to agree upon a value of $94,448.79, and that will be the starting point for considering what is to be done with the ING policy.

   [3] (2002) FLC 93-122

3. So far as the lesser policies are concerned, it would seem to me that the parties should be taken to have contributed approximately equally to those.  Performing the mathematics so as to produce a figure of some precision, this result achieved; if one adds the total of those two smaller policies, one arrives at a figure of $16,170.65.  If each party were to receive approximately half, that would be represented by a figure of 8085 dollars and some cents.  The father has his policy of 5316, which would indicate that the differential between what he has and the half that he might be seen to be entitled to is some $2769.25.  I put that to one side for the moment and return to the ING policy.

4. As to the husband’s larger ING policy the wife appears to assert that having arrived at a percentage in respect of non-superannuation assets, I should simply apply the percentage so arrived at to the superannuation entitlement and upon those percentages base a splitting order. I am not satisfied that that is correct.  A number of decisions have indicated that the application of a formula, such as was used in West and Green[4], might be of some assistance in this case.  The father says that he has made contributions to that superannuation policy since the parties' separation and, accordingly, he should receive some credit for that.  Indeed, I am satisfied the husband might find some relief, both before and after the parties' marriage.  Applying a West and Green-type formula, one would see that the husband contributed first to a superannuation scheme, which was converted into the current scheme, in 1990.  The contribution period, therefore, is 1990 to 2009, or approximately 19 years.  The marriage within that period lasted just short of 11 years; in other words, for approximately 60 per cent of the period of contribution by the husband to the superannuation fund.  Based on the matters of contribution and the section 75(2) factors with which I have previously dealt, I am satisfied that the wife should be recognised as having a total entitlement of 45 per cent as to that policy of superannuation. However, if I am to do that, I must bring back into account, in my view, the adjustment required between the two smaller funds. 

   [4] (1993) FLC 92-395

1. The figures, which I concede are not mathematically-based with fine precision, are these:  If I take the ING fund at $94,448, 45 per cent of that is represented by a figure of $42,501.60.  If I take from that the adjustment of $2,769.25, a figure of $39,732.35 is produced, which I would round at $39,730.  To my mind then, that would be an appropriate figure for the base amount for a splitting order, in accordance with the wife's latest minute which has been prepared after consultation with the relevant trustees so as to put the order in a form which is acceptable to them.  

How then is this to be achieved? 

1. I then return to the non-superannuation pool of assets.  I have indicated that the wife should receive 62 per cent and the husband 38 per cent.  62 per cent is represented by a figure of $188,178.68.  The wife has in her possession her car, her contents and her jewellery, for a total of $12,000.  When that is taken away, a figure of $176,178.68 is produced as the wife's further entitlement.

2. Of course, that entitlement can only be found in the fund of moneys held by the legal representatives for the wife.  For the husband's part, 38 per cent is represented by a figure of $115,335.51.  The husband has in his possession the amount added back for shares, his car and his contents.  Those figures, together, amount to $52,438.05.  When one is taken from the other, that is, the $52 is taken from the $115, a figure of $62,897.01 is produced. 

3. Accordingly from the fund represented by the proceeds of sale of the properties of $239,076, the wife is to receive $176,178 and the husband $62,897.

4. Thus the wife will have that amount plus her car, contents and jewellery and the husband the amount attributed to him of $62,897 plus the amount attributed to him for the sale of shares, his car and his contents.

5. I am satisfied that any interest that has accrued above and beyond the amount of  $239,076 should be shared equally between the parties.

6. When I look back as I am required to do and examine the result arrived at I am satisfied that it is in all the circumstances proper, just and equitable.

I certify that the preceding one-hundred-and-thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  31 July 2009