Barstow and Barstow

[2016] FCCA 2185

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARSTOW & BARSTOW [2016] FCCA 2185

Catchwords:
FAMILY LAW – Children and property – issue of whether children attend private schools or who should meet the fees if they do attend private schools.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 75(2), 79

Cases cited:

Pierce & Pierce (1999) FLC 92-844
Williams & Williams [2007] FamCA 313

Applicant: MR BARSTOW

Respondent: MS BARSTOW

File Number: MLC 1410 of 2015

Judgment of: Judge McGuire

Hearing dates: 18, 19, 20 & 21 July 2016

Date of Last Submission: 21 July 2016

Delivered at: Melbourne

Delivered on: 31 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Smallwood

Solicitors for the Applicant: Barbayannis Lawyers

Counsel for the Respondent: Ms Byrnes

Solicitors for the Respondent: Christopher James Lawyers Pty Ltd

ORDERS

1. That the parties have equal shared parental responsibility for the children, X born (omitted) 2005 and Y born (omitted) 2010 (“the children”).

2. That the children live on a week-about basis between the parties during school terms with changeovers to occur at the conclusion of school on Thursdays or as otherwise agreed between the parties.

3. That the children spend one half of each school term holiday with each of the parents being with the father for the first half of such holidays in 2016 and each alternate year thereafter and with the mother for the first half of the holidays in 2017 and in each alternate year thereafter with changeovers to occur at 6.00 pm on the middle day of such holidays.

4. That the children live between the parties on a week-about basis during long summer school holidays with the children to spend the first week of such holidays with the father in 2016 and in each alternate year thereafter and the first week of the holidays with the mother in 2017 and in each alternate year thereafter with the summer holiday to commence on the last day of term 4 for the child last at school during that year.

5. That the children spend time with each of their parents on Christmas Day, the children’s birthdays and that parent’s birthday in each year as agreed between the parties.

6. That in any event the children spend Father’s Day with the father each year from 6.00 pm on the preceding day until 6.00 pm on Father’s Day and with the mother on Mother’s Day from 6.00 pm on the preceding day until 6.00 pm on Mother’s Day.

7. That the children or either of them spend such other time with the parents as agreed by the parents in writing and including any variations of the above.

Children’s schooling

1. That the wife be entitled to enrol the children at private schools of her choice in the 2017 school year provided that the wife be solely responsible for the payment of school fees for both children but providing that the wife not thereafter change the children’s schools without the consent of the father.

Property

1. That within 60 days from the date of these orders the husband pay to the wife a lump sum of $305,516.00.

2. That contemporaneously with the payment referred to in order (9) the wife transfer to the husband all her right, title and interest in the following absolutely:

   (i)The property situate at Property P, (omitted) Victoria;

   (ii)The Nissan (omitted) motor vehicle;

   (iii)The (omitted) and (omitted) shares in the name of the husband;

   (iv)All personalty and chattels in the possession or under the control of the husband as at the date of these orders;

   (v)The balances of bank accounts or like investments in the name of or to the benefit of the husband as to the date of these orders;

   (vi)Any of the husband’s superannuation policies or entitlements but subject to these orders;

   (vii)The Barstow Family Trust.

3. That the wife be solely responsible for and indemnify the husband in respect of the following:

   (i)Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders;

   (ii)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone.

4. That contemporaneously with the payment referred to in order (9) herein the husband transfer to the wife all of his right, title and interest to the wife absolutely:

   (i)The (omitted) Mercedes Benz motor vehicle;

   (ii)All personalty and chattels in the possession or under the control of the wife as at the date of these orders;

   (iii)The balances of bank accounts or like investments in the name of or to the benefit of the wife as to the date of these orders;

   (iv)The wife’s superannuation policies or entitlements.

5. That the husband be solely responsible for and indemnify the wife in respect of the following:

   (i)Any and all liabilities attaching to any assets to be retained by the husband pursuant to these orders including but not limited to the (omitted) Bank mortgage secured by the property at Property P in Victoria and in this respect the husband refinance that mortgage and provide the wife with a release of her liability under that mortgage;

   (ii)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.

6. That should the payment by the husband to the wife pursuant to order (9) herein not be made in full by the due date then the property at Property P be placed in the hands of agents for sale upon such terms and conditions as may be agreed between the parties including as to mode of sale, reserve price and selling agent and failing agreement then as determined by a representative or nominee of the Real Estate Institute of Victoria and with the proceeds to be disbursed as follows:

   (i)The payment of reasonable costs and disbursements of the sale;

   (ii)To discharge any mortgage secured by the Property P property;

   (iii)The balance to be distributed between the parties so as to give effect to a 50/50 division of the net tangible assets of the parties pursuant to these orders and reasons.

7. That pursuant to section 90MT(4) of the Family Law Act 1975 (as amended) a base amount of $63,000.00 be allocated to the wife out of the husband’s interest in the (omitted) Superannuation Fund member name: Mr Barstow (date of birth (omitted) 1974).

8. That pursuant to section 90MT(1)(a) of the Family Law Act 1975 wherever the Trustee makes a splittable payment from the interest held by the husband the Trustee:

   (a)Pay the wife or her legal personal representative and assigns the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and

   (b)Make a corresponding reduction in the entitlement the husband would have had in the Fund but for these orders.

9. That these orders have effect from the operative time of these orders being 4 business days after the day on which the final sealed, signed orders are served on the Trustee.

10. That the Trustee of the Fund do all such acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, can calculate the entitlement of and make payment to the wife in accordance with order (15).

11. That upon receipt by the wife of a payment slip notice when issued by the Trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife exercise her election pursuant to Rule 7A.06 Superannuation Industry (Supervision) Regulations 1994 to request the Trustee to roll over or transfer the transferrable benefits as Rule 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 to another fund of the wife’s choosing.

12. That following the action taken by the Trustee of the Fund as contemplated in Rule 14F(2)(b) of the Family Law (Superannuation) Regulations 2001 the provisions of Rule 14 Family Law (Superannuation) Regulations 2001 will make any splittable payments following the action by the Trustee, non-splittable.

13. That until the happening of any of:

    (a)The establishment of a separate account in the name of the wife and the fund; or

    (b)The transfer or rolling over into another superannuation fund the payment split created by order (15) hereof; or

    (c)The wife satisfies the condition of release and is paid the payment split which is created by order (15) hereof; or

    (d)The wife executes a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by order (15) hereof.

14. The husband be and is hereby restrained by himself, his servants or agents, from executing a binding death benefit nomination in favour of any person or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rule 13 of the Family Law (Superannuation) Regulations 2001.

15. That until the operative time of these orders the husband will be restrained by himself, his servants or agents from making application for withdrawal of any funds from his interest in the Fund.

16. Pursuant to Section 81 of the Family Law Act1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

NOTATION:

1. The parties agreed and acknowledged during their evidence that they would contribute equally to the children’s extra-curricular costs and also to the costs of reasonable extras including uniforms for the children’s schooling.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1410 of 2015

MR BARSTOW

Applicant

And

MS BARSTOW

Respondent

REASONS FOR JUDGMENT

1. The parties here are litigating four primary issues. Firstly, they do not agree the parenting arrangements for their two children, X born (omitted) 2005 (aged 10 years) and Y born (omitted) 2010 (aged 5 years).  The father proposes an order whereby there be equal time for the children with each of the parents on a week/about basis. The wife argues the children should continue a regime of 9 nights with her and 5 nights with the father each fortnight but moving in September of this year to the children spending 6 nights with the father and then a week/about arrangement as from September 2017.

2. Secondly, the parties differ on the percentage distribution of their property. The wife seeks an order for 55% of the net tangible assets in her favour. The husband proposes an order whereby he receive 57% of the net assets. They agree that their superannuation entitlements be adjusted so that they each retain one half of total value.

3. There are some issues as to the property pool including the value of a Mercedes Benz motor vehicle in the possession of the wife and each of the parties argues for some mathematical adjustments of payments allegedly made by each of them post separation and in this sense argue for “add backs”.

4. Thirdly, the wife mounts an argument in respect of the husband paying one half of the cost of the children’s attendance at private schools for the duration of their education. She also asks for an order that he pay for extracurricular and educational expenses outside of the school fees and appears (although it is not clear) to argue for a form of departure from a child support assessment. During the course of the evidence it became clear that the husband was agreeable to meeting additional expenses for the children including reasonable education and extracurricular expenses but not private school fees.

5. Fourthly and directly related to the issue of school fees, the wife seeks an order that the children each be enrolled in particular private schools for the duration of their schooling. The husband, on the face of it, does not agree to such an order. Nevertheless, the issue was clarified during the course of the evidence where it became clear that the husband’s position is that he remains philosophically opposed to his children attending to private schools as opposed to government schools but would not obstruct the wife enrolling them in private schools if she was to accept the responsibility for the payment of school fees in totality.  The husband was at pains express that this is not a compromise of his own values but rather a compromise in respect of the issue before the Court and where he impliedly acknowledges the wife’s preference, or assertion, that the children be educated at private schools.

Background facts

1. The husband is 42 years of age. The wife is 41 years old. He is employed as a (occupation omitted) and she as a (occupation omitted) and both have incomes of at least $200,000 per annum.

2. The parties commenced cohabitation in (omitted) 1999. They married on (omitted) 2000. They initially separated under the one roof in December 2014 and the wife left the former matrimonial home on 3 January 2015 after a physical altercation between the parties and where each attributes blame to the other.

3. The children have lived primarily with the wife since separation. Interim orders were made by consent on 20 May 2015 whereby X and Y spend 5 nights per fortnight with the father broken into a long weekend in one week and a night in the off-week.

4. The wife’s evidence is that she has re-partnered with a Mr A. He is employed but the wife says that she and Mr A share their rental obligations whilst she covers the remainder of household expenses. There is no evidence that Mr Barstow has re-partnered at least to the level of cohabitation.

5. The wife employs a nanny at a cost of $150 per week to care for the children in out of school hours when they are with her and her employment does not permit her to be available.

6. X is in year 5 at (omitted) School. Y is in prep at (omitted) School.

The evidence

1. The husband relied on 3 affidavits filed 16 February and 23 October 2015 and 29 March 2016. He relied on a sworn financial statement filed 29 March 2016.

2. The wife also relied on 3 affidavits filed 27 April and 15 December 2015 and 19 April 2016 together with her financial statement.

3. Both parties gave evidence and were subjected to lengthy and vigorous cross examination. I am satisfied generally that both were witnesses of the truth. The evidence of each of them in court, like their affidavits, was replete with criticism of the other in respect of their parenting skills and attitudes, financial priorities and non-communicative and non-cooperative attitudes to the other party. It was not difficult to discern residual animosity between the husband and the wife. I accept that they do not communicate easily. They remain negative in their attitudes towards each other. My observation of both was of assertive and rigid personalities and strikingly, both were particularly concerned with minute and particularised details in respect of money matters. As one Counsel suggested during her final submissions and I agree, it seems that issues of money have grounded and permeated every issue of dispute between these parties following their separation.

4. Each of the parties was at pains in their evidence to argue for “repayment” of monies allegedly spent by one or the other on the children or mortgages post separation. The issue of private school fees dominated the evidence and whilst each of the them was eager to criticise the other, they both seek orders for equal shared parental responsibility and both expressed at various times some guarded confidence as to being able to communicate and cooperate better at the conclusion of these proceedings.

5. Neither party adduced evidence from any other witnesses.

6. The Court had the benefit of a family report prepared by Ms R but with such benefit being dubious and limited given that the report is dated 13 May 2015 and the interviews for the report were conducted in April and early May of that year.

7. Ms R was cross examined and presented as an astute, objective and insightful witness. She readily acknowledged the limitations of her report.

“Private Schools?”

1. It is not unusual for parents to differ on schools that their children will attend or whether such education be by private or government school. The parties’ positions here, however, are slightly different than the norm. The wife has a strong preference for X and Y to attend private schools until completion of year 12. I accept that she is committed to a private school education for her children and during her evidence committed further to financing private school education for X and Y regardless of my orders as to the husband’s financial contribution.

2. The husband’s evidence is that he is opposed to private school education on a philosophical basis. He says that his agreement for the children to be enrolled thus far was never intended to be on a final basis and subject only to these proceedings. He says that he has not acquiesced in the children attending private schools for the duration of their schooling either explicitly or implicitly. I accept his evidence in this respect. Mr Barstow does, however, make what he sees as a compromise in that he would be agreeable to the children attending private schools conditional upon the mother meeting the school fees.  He says, and I accept, that such a concession is not a retreat from his principles but simply his accommodation of the wife’s own values.  The wife’s argument is that the husband’s supposed “values” are purely financially driven.

3. During his evidence he agreed that he would share extracurricular and general schooling costs save as for school fees.

4. The issue for me therefore, is not where the children attend school but should the father be obliged by order to meet one half of the school fees over and above his assessed child support maintenance. This is not a matter that the Court is asked to choose between school options. Indeed, no evidence was given or adduced as to respective benefits of one school as against another or private schools as against government schools. The issue between the parties rests fairly on their philosophical values and the flow on financial consequences. This dispute remains despite the parties each arguing for an order for equal shared parental responsibility.

5. Given that I am not required to adjudicate in respect of actual education matters, and where the dispute rests of questions of values and preferences between parents, I do not think it appropriate to oblige the husband to meet the extra costs incurred over and above a child support assessment simply on a dispute of principle. To do so would involve me entering into an inappropriate and unnecessary subjective determination as to the value of public or private education where there is simply no objective evidence before me. Consequently, on the evidence it is clear that the children will attend private schools and that their mother will, as she volunteered, meet their fees. The father has made an appropriate concession.  There is no evidence as to what style of education would be in the best interest of the children. It remains for me to consider whether such expenditure is properly considered under parts of these reasons and the various disputes between these parties.

Children – relevant law

1. Section 60CA of the Family Law Act 1975 (as amended) (“the Act”) provides that I am to have the best interests of X and Y as my paramount consideration in making orders under Part VII of the Act.

2. The Court determines children’s best interests by reference to the objects and principles of section 60B of the Act and also by a pragmatic referencing of the probative evidence and the parties proposals to the mandatory considerations set out in sections 60CC(2) and (3) and of the Act.

3. Section 60B sets out the objects and principles of the legislation as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Both parties in this matter emphasised their current lack of communication and cooperation in respect of their children. They each were quick to criticise the other. They each posed numerous examples of alleged unilateral or non-child focused behaviour. Obviously from the issues left for my determination, they cannot agree the circumstances of their children’s schooling or, at least, whether both should contribute to private school fees. They each criticise the other in respect of incidents of family violence. The husband accuses the wife of abuse of alcohol. The wife accuses the husband of abuse of illicit drugs. Nevertheless, they both ask me to make an order for equal shared parental responsibility.

2. Section 61DA of the Act provides a presumption that parents have equal shared parental responsibility for their children. This is normally explained by the parents together making decisions for their children of a longer termed nature such as matters concerning education, religion, medical procedure and the like. Significantly, however the presumption does not apply if the Court is satisfied there are relevant issues of family violence or child abuse. Alternatively, the presumption can be rebutted if the Court is satisfied that such an order is not in the best interests of the children. In the matter now before me, the irony sits in the parties’ ongoing disputes in respect of their children and their criticism of each other together with each accepting that their relationship is non-communicative, as against them asking for an order for equal shared parental responsibility. Nevertheless, these are both intelligent adults of some maturity who have managed to achieve respect and success in their corporate employment. They both acknowledge that their children would benefit by their communication improving. They both espoused some confidence that this will be achieved. Further, it is certainly implied in the Act and emphasised by the historical authorities of these Courts that parents have an obligation to improve their communication and cooperation where they lack these skills. Certainly it is disingenuous for a parent to come to this Court and simply rely on these failings to seek sole parental responsibility. Taking all of these matters into account, therefore, and taking the parties’ optimism at face value, I am satisfied there should be an order for equal shared parental responsibility for X and Y.

3. Significantly, once there is an order for equal shared parental responsibility then the Act mandates a course of statutory and intellectual consideration for the Court in respect of children’s living and parenting arrangements.

4. Firstly, pursuant to section 65DAA(1) the Court must consider whether it is in the children’s best interests and reasonably practicable to them to spend equal time with their parents. If the answer to either of those questions is in the negative then the Court moves to consider whether the children spending “substantial and significant time” between the parents is both in their best interests and reasonably practicable.

5. The Court determines the children’s best interests with reference of the probative evidence and the parties proposals to the numerous considerations under sections 60CC(2) and (3) of the Act.

6. In the matter now before me the father proposes an immediate regime of the children spending equal time between the parents. They live in close proximity. They each have adequate facilities. It follows that issues of practicability do not arise here.

7. The wife’s proposal is consistent with an order for “substantial and significant time” which would have the children spending both weekend and week day time with the parents and allowing for the children and the parents to mutually enjoy the benefits of each other’s lifestyle and important events.

8. These reasons should note that the Court was loathe to permit any cross examination or allegations of family violence between these parents where the ambit of their dispute in respect of the children’s living arrangements is discrete and where, quite frankly, issues of family violence could not therefore be relevant. That is, it would be disingenuous for the mother, for instance, to argue matters of family violence where she is urging the Court to make orders unconditional that the children spend 5 nights per fortnight moving to 7 nights per fortnight with the father.

Section 60CC factors

Section 60CC(2)(a) - The benefit of the children having a meaningful relationship with both the parents.

1. These children have had the benefit of spending considerable and quality time with both their parents both pre and post separation. Any criticisms of either parent and there prioritisation of the children is, in my view, petty and without merit.

2. The family reporter observed the children at [48]:

   The children present as happy and settled children who reported to be doing well at school and there are no concerns in relation to their welfare. The children love both parents, have good relationship with them and their needs are well met by their parents.

3. And at [39] Ms R observed:

   Observations of the children with their parents both formally and informally were unremarkable and they were found to relate with warmth and familiarity with their parents consistently over the course of the day.

4. I am satisfied that the proposals of each of the parents would attend to maintaining the meaningful relationship of X and Y with each of their parents. Importantly, the parents must understand that such a relationship is based on quality rather than quantity of time spent between Y and X and their parents.

Section 60CC(2)(b) - Matters of family violence and child abuse.

1. As mentioned above, although raised by both parents, these matters can have no relevance given the proposals of the parties and the ambit of the dispute.

Section 60CC(3)(a) - The children’s views as to there parenting and living arrangements and the maturity and rationality of those views.

1. The best evidence as to the children’s views comes from the family reporter although the report is now some 16 months old. Y was described a “confident little girl, happy and socially competent.” [31] she was not yet 5 years of age at the time of those interviews. X was 9 years old. Ms R describes him thus “he presents as a mild mannered boy, respectful and compliant. He has a lovely nature and an easy going personality and he engaged easily in interview. His comments and responses were unguarded and did not seem rehearsed and generally they reflected his views and opinions.”

2. At [34] Ms R significantly observes transitions did not appear to be an issue for the children but that X stated that “it’s annoying (as his parents) hardly talk except to say hello.” Generally the family report suggested X might prefer and be comfortable with an equal time arrangement with his parents. Y disclosed that she would like to see her father more often [38] and of course, this may have been accommodated by the consent orders made in May 2015.

Section 60CC(3)(b) - The nature of the relationship with the children with each of their parents.

1. Each of the parents was keen to criticise the other’s commitment and priority to the children. The husband was criticised for playing golf. It was noted that the wife was required to employ a nanny whereas the husband had some flexibility in his employment. The family report, however, discloses an easy and comfortable relationship for these two children with their parents. The children’s social and schooling success and emotional stability belies any criticisms.

Section 60CC(3)(c) - The extent to which each of the children’s parents has taken, or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children; to spend time with the children; to communicate with the children and to maintain the children.

1. The parties have similar gross incomes. The husband pays child support as assessed. There was much criticism by the wife of the husband not contributing post separation to private school fees or not contributing equally. I am satisfied, however that both of these parents have contributed to their children’s general and financial welfare and that the remaining issues are a factor of the importance and relevance of each of these parents seem to take on relatively minor financial disputes. Both parents urge orders for equal shared parental responsibility. They have and will continue to be active in the important decisions for their children although discussions are likely to be robust by reason of the strong personalities of both parents.

Section 60CC(3)(d) – The likely effect of any changes in the children’s circumstances including a likely effect on the children of any separation from either of their parents.

1. The mother argues that Y may not be ready or will not be able to cope with being away from her for a block period of 7 days. The evidence, in particular that from the family report, does not support this argument. Y is comfortable with each of her parents. On the face of the report she does not appear to differentiate between her parents as to their roles in her life. She is, of course, some 16 months older than at the interviews for that family report.

Section 60CC(3)(e) – The practical difficulty and expense of the children spending time with and communicating with the parents.

1. This factor is not relevant on the proposals of the parties and the evidence before the Court.

Section 60CC(3)(f) – The capacity of each of the children’s parents and any other person to provide for the needs of the children including emotional and intellectual needs.

1. On the evidence before me and despite their mutual criticisms, I am satisfied that each of these parents has a demonstrated capacity to attend to the children’s physical, intellectual and emotional needs. Again, the children’s settled demeanour and comfort in their relationships with their parents is demonstrative of this fact. In circumstances such as that now before me, it is a truism that parents require the same skills, support networks, accommodation and commitment to care for their children should it be for 5 or 7 nights. In this respect, the mother has acted appropriately in employing a nanny. The evidence suggests that the father has some flexibility in his employment to cater for the children’s care. Criticism of either party in respect of their capacities is unjustified on the evidence.

Section 60CC(3)(g) - The maturity, sex, lifestyle and background of the children and either of the children’s parents.

1. The mother’s case for a graduated move to the children living in a week-about arrangement is based to a large degree on Y’s young age. The mother fears that Y would not cope with being away from her for 7 days at a time. The wife gleans support from Ms R’s report which again is somewhat dated. It is true that Ms R at [65] of her report says:

   Shared care is not appropriate for Y in particular in her stage of development but may be considered in the future provided both parents work together to achieve greater collaboration.

2. And at [58] Ms R opines:

   At this stage of development, week about is unlikely to meet Y’s needs as a week away from each parent is considered a long period of time for her. She requires a stable and predictable routine, a home base so that her world remains predictable and safe. Once this has been established, there can be a gradual move to equal care. While X is of an age where he has the resources for shared care, Y is not and her needs take priority as she is younger and more vulnerable.

3. At [69] Ms R concludes as of May 2015:

   Arrangements can be considered where the children have increasing time with their father say over a period of about 2 years or so, whereby a week about regime can be implemented say by the end of the year 2017. This is a guide only and the needs of the children need to considered at this stage.

4. With due respect to Ms R, I consider most of this opinion to be of the more generalised motherhood variety and arbitrary. In the witness box, Ms R confirmed her own comments as to the relevant stability of these two children following their parents’ marriage break up together with statements from the children themselves as to their preferences for relationships with their parents and observations of the parent’s relationship.

5. Ms R agreed, albeit perhaps reluctantly, that there is little difference in a regime for a child of spending 5 nights, 6 nights or 7 nights with or away from a particular parent with the importance being the ability and insight of the parents to comfort and make transitions easy for the children. Further, Ms R agreed that her report noted that the children easily transit between their parents.

Section 60CC(3)(i) – The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.

1. Whereas each of these parents are unchallenged in their capacity to care for X and Y, they are both culpable to a degree in respect of their attitudes. Matters of finance ground most of the disputes between these two otherwise good parents. The mother has refused reasonable requests for flexibility and time as for example on children’s birthdays by holding the situation to “ransom” in connecting the payment of certain fees in return for time with the children. I accept however, that Ms Barstow is generally a good mother and these incidents are more aberration than normality. Similarly, the husband is of a rigid personality type and in the witness box he frequently seemed more occupied with minute money details rather than his children’s overall interests. He is clearly a man of principles and values but might benefit from a lesser fiscal focus in matters concerning his children.

Section 60CC(3)(j) – Family violence.

1. These issues are dealt with above.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to these children.

1. The family report makes it clear that the children, young as they are, are aware of the conflictual relationship between their parents. My observations are generally of two competent, loving parents whose vision of their children’s needs is clouded by their own personality type and obsession with matters financial. If the parents take the time to read Ms R’s report without an eye for criticism of the other parent then they might glean the insight needed to move forward from these proceedings onto parent their children more cooperatively and communicatively as they claim to desire. To the contrary, if these two parents continue to dwell on money matters of arguable relevance and lose sight of their children’s day to day needs then they may unfortunately find themselves again before this Court and it would be very much contrary to the interests of X and Y if they were to be used as a conduit for fiscal arguments between their parents.

Consideration and Conclusions – Children

1. I am satisfied that X and Y have a meaningful and successful relationship with both of their parents. The evidence persuades me that both parents have the skills and facilities to attend to their children’s needs. The parties live in close vicinity that they are able to share the care of their children. The issue between them is discrete in being only as to when they move to equal time.

2. The wife says that Y should not move to an equal time arrangement until September 2017. She claims support in this regard from Ms R who urged the more graduated approach albeit in her report of as long ago as May 2015. The wife also says that the parties’ poor communication and lack of cooperation is not indicative of an equal time arrangement particularly for a child as young as Y.

3. It is common and unsurprising that the parent with the greater time with children would take a more conservative approach to increasing time with the other parent whilst that other parent would usually be more adventurous in increasing their time.

4. Y is still a young child and it would be understandable that she might look to her mother for support. Nevertheless, and as long ago as the interviews for the family report, she expressed a desire for greater time with her father. Both children were then comfortable in the care of each of their parents and were not troubled by transitions. There is no evidence before me of any discrepancy in the capacity, skills or facilities of these parents. There are advantages, albeit discrete ones, in the children living in an equal time arrangements between their parents. On a practical basis there will be less changeovers than the current regime which involves as many as four changeovers for the children in the two week cycle. A further advantage might be from the eyes of the children themselves and perhaps one noted by X to the family report in May 2015 described by him as “fair” but where the children would view their parents as equals or, at least, not as one parent being more important than the other and particularly when the parents themselves are unable to present to the children as a united front. An equal time arrangement on a week/about basis would see the parents being responsible and involved equally in the children’s schooling and extracurricular activities.

5. In conclusion and mindful of Ms R’s recommendations, I am satisfied on all of the evidence Y would cope with the relatively minor increase of two nights per fortnight with her father and where she would, of course, have the support X and where the father still offers the familiarity of the former matrimonial home. Fortunately for them, these children do not appear on the evidence before me to have been unduly or negatively impacted by their parent’s separation. They are desirous of a fulsome relationship with both of their parents. They transit easily between their parents.  As such, I find the mother’s proposal to be unduly conservative and will order that the children live between their parents on a week/about basis forthwith rather than by the graduated process sought by the mother.

Property

1. Each of the parties has received $104,000 as a part property settlement prior to the trial. The wife in her evidence at one stage suggested that the husband had, in fact, received $110,000. Her evidence in this respect was vague, uncertain and uncorroborated. In her final written submissions, Counsel for the wife included the sum of $104,000 on the part of the husband and I am satisfied it is proper to include this amount for each of the husband and the wife in the property pool.

2. The husband argues that the tangible property of the parties be divided as to 57% to him and 47% to the wife. He bases the discrepancy on his superior initial financial contributions.

3. The wife argues for a distribution of 55% of tangible assets to her and 45% to the husband. She grounds her argument on superior considerations under section 75(2) of the Act.

Relevant law – Property

1. I am satisfied that pursuant to section 79(2) of the Act that it is just and equitable to alter the property interests of the parties. The parties relationship is of some 16 years duration. They jointly own assets of significant value. They have separated.

2. It is now well established that I first identify the legal and equitable interests of the parties in property as at the date of the hearing. Property includes assets, liabilities and resources. Superannuation is to be treated as property for the purposes of this consideration.

3. In determining the alteration of the parties’ property interests, if any, the Court is to consider the contributions of the parties to the property pool. Contributions may be either financial or non-financial and direct or indirect. Contributions by way of home maker and parent come into consideration. Further, in determining any adjustment of property interests the Court is to consider attribute weight the various relevant considerations under section 75(2) of the Act.

1. Permeating the process the Court must be satisfied that its proposed orders are just and equitable in all of the parties’ circumstances.

The property pool

1. The parties had agreed much of the property pool by the time of final submissions but with the following issues remaining:

   i)

   The wife is in possession of a Mercedez Benz motor vehicle.

   
   

   The valuation of that vehicle is in dispute. The wife provided a valuation of $54,000. The husband asserted that the vehicle is damaged and a further valuation was obtained during the course of the trial. The damage is cosmetic to the exterior of the vehicle. Although the valuers slightly disagree the parties accept the repaired vehicle would be valued at $59,000. The issue is whether I include the “as is” value or the “repaired value”. On the evidence before me I am satisfied that the damage is more than simple fair wear and tear. The damage has occurred to the vehicle whilst in the possession of the wife and during such time she has enjoyed its benefit. I am unaware of any insurance ramifications. On the principle that parties should maintain jointly owned assets to a proper standard at least during the course of their litigation, I am of the view that the higher value is approximate and will include in the Mercedez Benz motor vehicle at $59,000.

   ii)The husband argues that a sum of $104,000 be simply included in the pool as the partial property settlement received by each of the parties prior to the hearing before this Court. The wife presents a more convoluted argument. Firstly she says in her Counsel’s aide memoir handed to the Court after the evidence that the husband’s receipt of $104,000 be included but also should shares that he says he purchased post separation with these monies. The husband does own and deals regularly with shares. He receives some shares as a form of bonus from his employment. The evidence in a forensic or audit sense was unclear. I am satisfied that the husband owned shares prior to separation. He accepts that these should be included in the pool. It would, of course, be a form of “double dipping” to include both his $104,000 in total and shares purchased with those monies. Taking all of these matters into account, I accept submissions from Counsel for the husband that his shareholdings with (omitted) and (omitted) be included in the property pool as to 4,160 and 501 shares respectively but that the $104,000 is included in total. The husband’s unchallenged evidence is that he needs to sell some of his shares in order to make a cash adjustment on the wife consequent upon my orders and that this would attract GST ramifications. The quantum of such tax is unknown and it is proper that this be taken into account generally pursuant to section 75(2)(o) of the Act.

   iii)The wife argues that her receipt of a partial property settlement of $104,000 should not be included in total in the pool but rather at an amount of $63,000. Her affidavit material and her evidence provided the detailed mathematical calculations as to monies spent by her post separation on children’s school fees and other joint commitments. The husband also argues that he should be “reimbursed” for post separation expenditure. As mentioned above, both parties were inclined to focus on mathematical detail in claiming “add backs” in respect of the property pool and generally, perhaps symptomatic of their professional lives. It is clear that the wife has paid greater proportion of the children’s school fees since separation albeit with some contributions by the husband. I have dealt elsewhere with the parties’ philosophical view points and values in respect of the children’s education. I am satisfied generally that the husband did not seek injunctive orders with respect to the children attending private schools but has always maintained his philosophical disapproval and I could not find that he has in any way consented to or acquiesced in this state of affairs other than whilst maintaining his values. Consequently, and consistent with my reasons generally in respect of this issue, I think it proper that the wife’s receipt of $104,000 partial property settlement be included in its totality in the property pool but consideration will be given elsewhere to her philosophical and actual commitment to the children’s private school education.

   iv)The parties previously established the Barstow Family Trust in order to trade in shares. It is now dormant and has no assets of tangible value although it may have residual value of $250,000 in tax losses which, of course, will have real value only if resurrected as a trading entity and profits are achieved such as to incur tax liabilities. The husband was equivocal in his evidence as to the future of the trust. The wife’s position is that it should be wound up or alternatively, if remaining in the “possession of the husband” then she should be compensated in some form for the benefit that may accrue to him. The husband has a preference to retain the trust. Given that it has no actual current value and there was no accounting relevant evidence before me, I have determined to allow the husband to retain the trust but give it some consideration as a financial resource available to him.

2. I find the property pool therefore to comprise of the following:

   Property at Property P  $1,950,000.00

   Husband's (omitted) shares (4,160)   $109,240.00

   Husband's (omitted) shares (501)  $6,292.00

   (omitted) Mercedes Benz motor vehicle              $59,000

   Nissan (omitted) motor vehicle              $12,500

   Husband’s partial property settlement received  $104,000.00

   Wife’s partial property settlement received  $104,000.00

   Total of assets   $2,345,032.00

   Financial resources

   Barstow Family Trust

   Liabilities

   (omitted) Mortgage  $1,394,000.00

   Husband's (omitted) Credit Card  $14,000.00

   Total of liabilities   $1,408,000.00

   Total net tangible assets   $937,032.00

   Superannuation

   Husband's (omitted)   $151,896.00

   Husband's (omitted)   $31,273.00

   Husband's (omitted)  $13,729.00

   Husband's (omitted)  $39,500.00

   Wife's (omitted)  $91,900.00

   Wife's (omitted) Super   $1,752.00

   Wife's (omitted) Super  $16,281.00

   Total superannuation   $346,331.00

Contributions

1. About two years prior to cohabitation the husband purchased a unit at (omitted) in Queensland. He paid a deposit of $32,000 together with costs of purchase. The parties together lived in that property for about 14 months. During that time they made some improvements. Whilst the husband claims that he financed the improvements, both parties were in employment at that time and I prefer that they both contributed either directly or indirectly. The property was sold in December 2001 for $237,000.00 netting $100,000.00. Although the parties have jointly and separately made contributions in the subsequent 15 years, I am satisfied that some weight should be given to this contribution by the husband and in accordance with the well-known principles in Pierce & Pierce[1] and Williams & Williams.[2] That amount of $100,000 is evident and relevant to the net asset pool of the parties set out above.

   [1] (1999) FLC 92-844

   [2] [2007] FamCA 313

2. Both parties, consistent with their tendency towards minute mathematical detail, claim “add backs” or contributions post separation. Specifically, the wife claims that she has paid the children’s private school fees or paid in a greater amount than the husband. The husband claims a great contribution post separation to the mortgage liability.

3. Contrary to the inclinations of these parties, the Court does not conduct an “audit” of the marriage by some precise mathematical calculation or formula. Further, the post-separation contributions claimed must be viewed against my findings above as to competing preferences and values of the parties in respect of the children’s private education together with the fact of the husband retaining the use and benefit of the former matrimonial home whilst the wife has needed to establish accommodation for herself and the children. Taking all of these matters into account and attributing weight to all of the contributions of the parties, both directly and indirectly but with weight to the value of the husband’s initial contribution, I would alter their property interests as to 53% to the husband and 47% to the wife.

Section 75(2) considerations

1. The parties have comparable incomes of around $200,000 per annum. The husband reduces his income by taking extra “lifestyle” leave of 4 weeks per year. He does, however, receive annual bonuses on a regular basis and usually in excess of $30,000 per annum. His income is inclusive of a superannuation package. I am satisfied that the husband’s bonuses and share issues give him a slightly higher earning capacity than the wife.

2. The husband will retain the resource being the Barstow Family Trust. Whilst it is currently dormant, it is evident that the husband frequently trades on the share market. He receives shares via his employment. The trust was previously used as such a facility. There are tax loss advantages in the trust which will potentially bring the husband and, on the balance of probabilities, I expect that some benefit will accrue to him and that this matter should be considered under section 75(2)(o) of the Act.

3. On her evidence, the wife will have the responsibility of paying school fees for X and Y. The evidence is that these fees will eventually be substantial both on an annual and accrued basis. Fees totalling around $55,000 - $60,000 annually would be expected without any fee increases. It is true that I have been satisfied that the wife sends the children to private schools by reason of her preference and that the husband should not be responsible for one half of the school fees in accordance with my reasons above. Nevertheless, and on consideration, this expenditure by the wife is nevertheless a reasonable one in support of the children albeit a voluntary one. As such, I consider it proper that the wife should be given some consideration under section 75(2) accordingly. Similarly, the wife employs a nanny to care for the children so that she can maximise her income in order to contribute to their financial support whereas the husband will not have the responsibility for school fees and says that he has flexibility to arrange his work hours around his care of the children.

4. The husband’s evidence is that he will need to crystallise a quantity of his shareholdings in order to make a cash adjustment upon the wife pursuant to my orders. No evidence was adduced in proper form so as to allow me to include such an adjustment or “liability” in the property pool or even as to what quantity will be sold and I think it proper to consider this likelihood under section 75(2)(o) of the Act.

5. Taking all of these matters into account I am of the view that there should be an adjustment to the wife on account of section 75(2) consideration of 3% of the property pool.

Conclusions – property settlement

1. Consequently, after consideration of the contributions and the relevant section 75(2) factors, I am satisfied that on a distribution of the net tangible assets as to 50% to the husband and 50% to the wife is appropriate.

2. The husband will retain the following:

   Home $1,950,000

   (omitted) Shares    $109,240

   (omitted) shares   $6,292

   Nissan motor vehicle  $12,500

   Partial property settlement   $104,000

   Mortgage-$1,394,000

   Credit card-$14,000

   Assets $2,182,032

   Liabilities -$1,408,000

   Net $774,032

3. The wife will retain the following:

   Mercedes Benz motor vehicle  $59,000

   Partial property settlement   $104,000

   Total     $163,000

4. I calculate, therefore, that the husband will pay to the wife a lump sum of $305,516.00 in order to effect a 50/50 division of the net tangible assets. The parties are agreed that there superannuation entitlements will be split so as to achieve an equal entitlement.

5. Taking all of the parties circumstances into account I am satisfied that such orders would be just and equitable.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 August 2016