BEMAN & SASSI

FAMILY COURT OF AUSTRALIA

BEMAN & SASSI

[2014] FamCA 186

FAMILY LAW – CHILDREN – Best interests – With whom children live – Where children have meaningful relationship with both parents – Where children not exposed to family violence – Where best interests determined using additional considerations – Where both parents have capacity to provide for needs of children – Where children at different developmental stages – Where single expert gave evidence regarding anxiety and attachment security – Where equal time not in children’s best interests – Order for substantial and significant time

FAMILY LAW – PROPERTY – Settlement in relation to marriage – What constitutes property – Where husband assisted to establish online business – Where wife asserted that husband owned business – Where husband does not have legal or financial interest in this business

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered – Where wife is a student – Where study will enable the wife to earn increased income – Husband to pay spousal maintenance until wife completes course

Family Law Act 1975 (Cth) s 60CC(3); s 75(2); s 79

APPLICANT:

Ms Beman

RESPONDENT:

Mr Sassi

INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

FILE NUMBER:

SYC

5320

2012

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

10, 11, 12 & 13 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Friedlander

SOLICITOR FOR THE APPLICANT:

Sharah & Associates Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Cominos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

IT IS ORDERED
PARENTING

That all previous parenting orders in relation to B, born … 2005 and C, born … 2011 (“the children”) be discharged.
That the parents have equal shared parental responsibility in relation to the children.
That from the date of these orders until the school term commences in January/February 2015 the children live with the father:

3.1During school term on an alternating weekly basis from the conclusion of school Thursday until the commencement of school Monday in one week and from the conclusion of school Thursday until the commencement of school Friday in the alternate week.
3.2In the school holidays at the end of the first, second and third terms, for five nights commencing at 9.00 am on the morning of the first night and concluding at 6.00 pm on the evening of the last night in the shorter school holidays, such time to be agreed and if there is no agreement to commence on the first Monday of the school holiday period.
3.3For one half of the December/January school holidays on a week about basis, such time to be agreed between the parents and if there is no agreement commencing with the mother in years that end in an even number and commencing with the father in years that end in an odd number.
3.4At other times as agreed between the parents in writing.

That from the date the school term commences in January/February 2015 the children live with the father:

4.1During school term on an alternating weekly basis from the conclusion of school Thursday until the commencement of school Tuesday in one week and from the conclusion of school Thursday until 7.30 pm that day in the alternate week.
4.2In the school holidays at the end of the first, second and third terms, for half of the school holidays, such time to be agreed and if no agreement, the time with the father to commence on the first Monday of the school holiday period.
4.3For one half of the December/January school holidays on a week about basis, such time to be agreed between the parents and if no agreement commencing with the mother in years that end in an even number and commencing with the father in years that end in an odd number.
4.4At other times as agreed between the parents in writing.

That from the commencement of the school term in January/February 2017 the children live with the father:

5.1During school term on an alternating weekly basis from the conclusion of school Thursday until the commencement of school Monday in one week and from the conclusion of school Thursday until 7.30 pm that day in the alternate week.
5.2For one half of the school holidays in a block period, such half to be agreed and if no agreement for the first half in years ending in an odd number and for the second half in years ending in an even number.
5.3At other times as agreed between the parents in writing.

That the children live with the mother at all other times.
That in the event that Mother's Day is on a day when the children would not be in the mother's care then the time that the children are with the father is suspended from 9.00am that day.
That in the event that Father's Day is on a day when the children would not be in the father's care then the time that the children are with the mother is suspended from 9.00am on Father's Day to the commencement of school the following day.
That for the purpose of the children having time with both parents during the Christmas period, the children shall spend time with the parent in whose care they would not otherwise be from 12.00 noon 24 December to 12.00 noon 25 December.

10. That save for changeover that occurs at the children's schools, preschool or day care centre, the father or his nominee collect and deliver the children from the mother's residence at the commencement and conclusion of his time with the children.

11. That the mother and father are hereby restrained by injunction from:

11.1Denigrating the other parent;

11.2 Discussing these proceedings or the contents of any court documents

in the presence or hearing of the children.

12. That for all school holiday periods the children communicate with the parent they are not in the care of via Skype or telephone at a minimum once per week during that holiday period.

13. That in February 2017 the parents do all acts and things and sign all documents necessary to have the names of the children removed from the Airport Watch List.

14. That upon the commencement of the school term in January/February 2017 either parent be at liberty to travel overseas with the children during periods of time that the children are in their care in accordance with this order, subject to the following:

14.1The travelling parent providing the other parent with 42 days notice of their intention to travel, including but not limited to an itinerary and contact details for where the children will be staying while overseas.
14.2The travelling parent providing the other parent within 28 days of travel a copy of the e-tickets or other travel document confirming the flights are paid for and confirming a return date for the children to Australia.
14.3That the travelling parent ensures the children talk to the other parent via Skype (or a similar form of face to face communication) at a minimum once per week while the children are away.

That within 28 days of the making of this order the mother and father do all acts and things and sign all documents necessary to effect a change:
(a) By usage; and
(b) If possible, by registration or entry in the NSW Registry of Births, Deaths and Marriages;

in the name of the child C from “C Sassi” to “C Beman Sassi” and upon compliance with the registration the parents are hereby restrained by injunction from using any other name for C other than “C Beman Sassi”.

16. That each party keep the other informed at all times of their current residential address, landline telephone number for that address, email address and mobile telephone number.

17. That each parent at all times keep the other informed as to all medical, dental or health related treatment being undertaken by the children and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with that treating professional concerning the treatment of the child or children and shall notify the other of all appointments with any such treating professional forthwith after the appointment has been made and in any event of any emergency treatment shall notify the other party at the earliest possible time.

18. That each parent is able to attend upon the children's day care, preschool and schools for events for which parents would normally be involved and are invited to attend.

19. That the parties pay equally the costs of the Independent Children’s Lawyer in the total sum of $13,511.70, being $6,755.85 each less any amount either party has already paid towards the costs of the Independent Children’s Lawyer.

20. That the parents be equally responsible for the payment of Mr L's fees for the preparation of his reports, for reading material and attendance at court to give evidence, such payment to be made within 21 days of being provided with Mr L's invoice for this work.

PROPERTY SETTLEMENT AND SPOUSAL MAINTENANCE

21. That within three months of the date of these orders the wife pay to the husband by way of property settlement the sum of $183,433 and discharge the mortgage over the property at I Street, Suburb A (“the property”).

22. That upon compliance with Order 21, the parties do all acts and things required to transfer to the wife the husband’s interest in the property.

23. That in the event that payment is not made to the husband in accordance with Order 21, then the parties shall do all acts and things required to sell the property and to pay the proceeds of sale in the following manner and priority:

1.   In payment of the mortgage;
2.   In payment of agents commission and costs of sale;
3.   In payment of 40 per cent of the balance remaining to the husband
4.   In payment of the sum of of $7,312 to the husband
5.    In payment of the balance to the wife.

That the orders below in this order have effect from the operative time:
1.That in accordance with s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the BT Lifetime Super – Employer Plan (account number …) superannuation fund, the wife is entitled to a base amount of $82,854 and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
2.That, having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the above superannuation fund; and
3.That the operative time for this order is four business days after the date of service of the orders on the trustee of the above superannuation fund.

25. That subject to these orders each party retain any personal property in his or her possession at the date of these orders.

26. That until the payment of the sum in Order 21, the husband pay the mortgage payments and rates in relation to the property.

27. That from the date of the transfer of the property to the wife, or the date of settlement of the sale of the property, the husband pay to the wife by way of spousal maintenance the sum of $250 per week, the first payment to be made on the day which is one week after the transfer or settlement and the last payment to be made in the week ending 31 January 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beman & Sassi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5320 of 2012

Ms Beman

Applicant
And

Mr Sassi

Respondent
REASONS FOR JUDGMENT
1.Before the Court are parenting and property proceedings arising out of the marriage of the applicant, Ms Beman (“the wife”) and the respondent, Mr Sassi (“the husband”).
BACKGROUND
2.The wife was born in the United States of America and came to Australia in about 1967 when she was a small child. She has lived in Australia since then. Her mother, step-mother and father also live in Australia.
3.The husband was born in Italy and came to Australia in 1998, becoming an Australian citizen in 2004. His family of birth, including both of his parents, live in Italy.
4.The parties commenced cohabitation in September 2002. At that time they were both in employment.
5.In April of 2004 a property at D Street, Brisbane Suburb E (“the Brisbane property”) was purchased in the husband’s name for $420,000. There is a dispute about the source of the deposit.
6.In 2005 their eldest daughter B was born. She will be nine in 2014.
7.The husband’s parents travelled to Sydney and were in Sydney when B was born and for about one month.
8.It is not disputed that before and after B was born the father mainly worked from home. There is a dispute between the parents as to the extent to which the father cared for B.
9.In March 2006 the husband and the wife with B spent four weeks in Italy with the husband’s parents.
10.When B was about nine months old the mother took an internship two days per week during which time she says her father looked after B for one day and I infer, that the husband looked after her on the other day.
11.When B was about 12 months old she was enrolled in day care for two days per week and then when B was two years old she was enrolled in day care for three days per week. During those days the wife was able to work part-time.
12.The parties married in April 2007. The husband’s parents travelled to Sydney for the wedding and stayed for about one month.
13.In 2009 the wife commenced studying for a degree and B was in day care four days per week.
14.Between 28 March and 10 May 2009 the husband’s parents came to Sydney and were in Sydney for B’s birthday.
15.In April 2010 the Brisbane property was sold and the parties received a total of $625,094.60, after the payment of agent’s commission and legal fees. Those monies were deposited into various bank accounts.
16.In September 2010 the parties purchased the present matrimonial home at I Street, Suburb A (“the home”) for $818,000 of which $500,000 was borrowed and the balance was provided from the monies which had been derived from the sale of the Brisbane property.
17.In 2011 the parties’ second daughter, C, was born in Thailand. She will be three in 2014. C was born as a result of a commercial surrogacy arrangement. The husband is C’s biological father. The wife has no genetic relationship with C.
18.The husband and the wife travelled with B to Thailand and were in Thailand for some weeks before C was born. After C was born the wife spent time with C in the hospital staying overnight and the husband cared for B. After C was released from hospital the wife and C moved back to the serviced apartment where B and the husband were living and the family stayed in Thailand until such time as they were able to obtain the appropriate documentation to permit C to enter Australia.
19.C’s name was registered, inadvertently, omitting the second name “Beman” as agreed between the parents. They now agree to rectify the registration to include the name “Beman” as C’s second name and consent orders will be made to that effect.
20.Between 16 June 2011 and 5 July 2011 the paternal grandparents came to Thailand and stayed in an apartment in the same apartment block as the husband and the wife and were able to contribute to the care of both of the children.
21.C was granted a Child (Migrant) 101 visa to enter Australia in June 2011 and in July 2011 the family returned to Australia and resumed living in the home at Suburb A.
22.The husband continued to work mainly from home. The husband says that he was the primary carer for C and that there were initially difficulties in the wife and C forming a bond. Whatever may have been the initial difficulties in the forming of the attachment between C and her mother it is not disputed that, at the time of hearing, C and her mother have a strong and secure bond.
23.On 14 May 2012 the parties separated under the one roof.
24.The wife remained sleeping in the master bedroom. The father slept in the same room as the children. Also in May 2012 C who was then aged about 13 months began to attend family day care on Wednesdays and Thursdays.
25.Unsurprisingly, the parents report that C was unsettled.
26.The situation between the husband and the wife appears to have deteriorated. The wife sought a referral for therapy both for herself and for B. She did not consult with the husband who refused to allow B to be taken to see a psychologist.
27.The parties argued about whether or not the wife could take the children to Brisbane and the police were called. There is a dispute between the husband and the wife about what was said in the course of the argument. The records produced by the New South Wales Police confirm that at no stage were there any threats made by the husband towards the wife. The husband told the police officers that he was concerned that the wife was going to take the children to Brisbane and not return.
28.On 7 September 2012 the wife filed an application in the Federal Magistrates Court (as it then was) seeking orders that the children live with her and spend time with their father on alternate weekends from Friday afternoon to Sunday afternoon and for school holiday time increasing to half the school holidays after C turns five years of age. She also sought a Watch List order.
29.In September 2012 the husband commenced a relationship with his current partner Ms F. The husband had known Ms F since August of 2012 and first introduced her to C on 5 October 2012 for a short period. Ms F spent a further short period with the husband and C on 8 December 2012 and first met B on 24 December 2012.
30.The husband and Ms F do not live together. He maintains his own residence close to the children’s school and she maintains her residence in the Eastern suburbs of Sydney. They have no current plans to live together.
31.In October 2012 the wife unilaterally removed the children from the Suburb A home and took them to live with her father and step-mother at Suburb G. Also unilaterally, she determined that the husband should spend one day per week with the children over his objections. This was a less generous position than the position she advocated in her application filed in September.
32.On 16 November 2012 the matter came before the Federal Magistrates Court (as it then was) and orders were made for the children to spend time with their father overnight on Saturday and Sunday on alternate weekends, for C to spend additional time with the husband for six hours on Monday and B to spend additional time with the husband each Friday.
33.The single expert Mr L was engaged to prepare a report. Mr L’s report was released on 13 December 2012. Notably Mr L reported that for B the fact that her father was not available to her on a daily basis was a major loss. Mr L also reported that C was a secure and confident infant with an apparently equally secure attachment to each of her parents.
34.On 18 December 2012 further orders were made by the Federal Magistrates Court (as it then was) detailing the time the husband should have with the children until the commencement of school in 2013 and thereafter. The orders provided that from the beginning of the first school term of 2013 the children should live with the husband from Friday after school until Monday morning each alternate weekend, each Tuesday after school until 7.30 pm for B only and from after school on Thursday until before school on Friday in the alternate week. The orders also provided for telephone communication between the children and the husband for two periods of half an hour each week and that the husband would vacate the Suburb A home by 25 January 2013.

35.On 25 January 2013 the wife and the children returned to live in the Suburb A home and the husband spent time with the children in accordance with the orders which had previously been made.
36.In 2014 the wife commenced studies for a Masters Degree. She proposes to complete that course over two years. The wife has enrolled C in preschool on Thursdays and Fridays which are the days when she attends classes at university. Occasionally on Thursdays it is necessary for B to attend before or after school care. When the wife is required to undertake work placement it will also be necessary for C to go to childcare on Wednesdays.
37.The wife has not offered the husband the opportunity to care for C on any of those days.
38.When the wife completes her degree she hopes to be able to be employed in the education industry and she anticipates that she will commence this employment in 2016.
39.By the time the matter came to hearing the wife and the children were living in the Suburb A home and the husband was paying all of the outgoings including mortgage payments and utilities. Until January 2014 the husband had, in addition, paid the childcare fees totalling approximately $15,500 but was unable to continue to do so.
40.At hearing there were competing applications in relation to the settlement of property which will be dealt with later in these reasons.

THE PARENTING PROCEEDINGS
41.The wife sought orders that the children live with her and spend time with the husband, until C turns six in April 2017, during school terms in alternate weeks from Friday afternoon after school until Monday morning and in the other week from Thursday afternoon after school until Friday morning. Essentially she asked that the present arrangements for the children continue until 2017.
42.During school holidays the wife proposed that the children should spend time with the husband for four nights in each alternate week.
43.After C turns six in 2017, the wife proposed that the children’s time with the husband should be extended in alternate weeks during school times from Friday afternoon after school until the beginning of school on Monday morning and in the other week from after school on Thursday until 9.00 am on Saturday morning.
44.The wife proposed that during school holidays, after C turns six, in the short school holidays the children should spend alternate weeks with each parent and in the long school holidays the alternate week arrangement should continue with the exception that each parent should be entitled to extend one week to have one period of ten days with the children.
45.The husband sought orders that the children live with him for four nights in the first week of each fortnight and two nights in the alternate week. After C turns five years old, in 2016, the husband proposed that the children live with him on a week about basis commencing after school on Fridays.
46.The husband sought an immediate arrangement whereby the children spend half the school holidays with each parent.
47.The Court was assisted by an Independent Children’s Lawyer (“ICL”) and by two reports by the single expert Mr L dated 11 November 2012 and 12 December 2013.
48.Each of the parents sought ancillary orders. With the assistance of the ICL they were able to negotiate an agreement in relation to most of the ancillary orders.
49.Significantly, the parents agreed that they should have equal shared parental responsibility in relation to the children.
50.Also significantly, the parties were able to agree that they would do whatever was necessary to change C’s name from C Sassi to C Beman Sassi.
51.The issues that remain then for determination are these:
1.      The time the children should spend with each of their parents during school terms.
2.      The time the children should spend with each of their parents during school holidays.
3.      The competing proposals for Christmas.
4.      The husband’s application to be able to travel with the children to Italy to visit their grandparents.
5.      The costs of the ICL.
6.      Payment of the fees of the independent single expert.

52.There is no dispute between the parents that the children presently have a meaningful relationship with both of their parents and must continue to maintain that relationship.
53.It was not asserted by either parent that the children had been exposed to family violence or are likely to be exposed to physical or psychological harm.
54.It is in relation to the additional considerations contained in section 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) that the children’s best interests fall to be considered.
55.C will be three years old in 2014 and has not expressed any relevant views. Mr L noted in his second report that when the father arrived for interviews, C greeted him enthusiastically and seemed to want to monopolise his attention. Mr L in his second report states:
It was noted that [C] tearfully and angrily protested being separated from her father when the time came for her to leave the practice rooms and go home with her mother. (The father) said that such protestations were typical.

56.B will be nine in 2014. In his report dated 11 November 2012 Mr L comments that B’s mother acknowledged that B misses her father and that, in her opinion B should spend more time with her father. When B was interviewed by Mr L she told Mr L that she wanted to spend more time with her father and that she missed her father. B also told Mr L that when she was at her father’s place she missed her mother and when she was at her mother’s place she missed her father. B told Mr L that she thought it was unfair that C spent more time with her father than she (B) does. B told Mr L that she likes sleeping over when she is spending time with her father. Mr L identified “the most major loss that she ([B]) has experienced is that of her father no longer being available to her on a daily basis” and recommended that B should spend substantially more time with her father than she is able to at the present time.
57.When Mr L interviewed B for the second report dated 12 December 2013 B told Mr L that she wanted to have more time with her father. In relation to the current arrangement B told Mr L “I don’t like bringing my bags back and fore.(sic)” And B said “I would like to change Thursday to maybe Thursday and Friday night and go back to Mummy’s on Saturday morning.”
58.It is notable that B did not at any time express to Mr L a desire to spend equal time with each parent but rather to spend more time with her father than the current orders permit.
59.The nature of the relationship of the children with each of their parents dominated much of the evidence.
60.The wife claimed that she was the primary carer for both of the children throughout the relationship and that the children’s primary attachment was to her.
61.The husband claimed that he was the primary carer for C from the time when the parties returned from Thailand and that C’s primary attachment was to him.
62.Although it is the present relationships of each of the children with their parents that are most relevant for the purpose of these proceedings, there needs to be some examination of the competing claims.
63.Tendered in the proceedings were an affidavit of the husband sworn 22 October 2012 and an affidavit of the wife sworn 13 November 2012. In his affidavit sworn 22 October 2012 the husband set out the history of his involvement with the children up until the parties separated.
64.In her affidavit sworn 13 November 2012 the wife specifically admitted many of the paragraphs of the husband’s affidavit.
65.Relevantly the wife admitted that after B was born the husband took her for midnight walks when she was crying in order to enable the wife to sleep and not be disturbed by B and that he also frequently took B out for walks during the day. The wife admitted that when the parties first separated the husband slept in C’s bedroom for a few nights but C was a light sleeper and C therefore moved to sleep in the bottom bunk in B’s room. The wife then moved C into B’s bedroom and the husband was able to settle C if she woke in the night.
66.The wife admitted that the husband sometimes prepared B’s lunch, that the parties shared dressing the girls, that they generally alternated taking B to school and picking her up, that they each attended to shopping and the husband took C with him when he went shopping.
67.The wife admitted that after the separation under the one roof the husband worked with a laptop from the kitchen table and was able to notice when C was upset or grumpy and to settle her.
68.The wife admitted that on a typical day the husband played with B from about 6.30 pm until about 7.00 pm and did maths exercises with B.
69.The wife admitted that the husband made up stories for B about his childhood and that B asked the husband “Please lie down in the bed with me a bit. I don’t want to separate – I want you to be together.”
70.The wife admitted that in mid-August 2012 she marked the calendar in the kitchen to demonstrate her election that she and the husband were now to look after the children on alternate weekends. The wife also admitted that the husband said to her, in relation to the weekends, “I don’t agree with all of this. I still do not understand why you are doing this.”
71.The wife admitted that the parents alternated taking B to school and C to day care on Wednesdays and Thursdays so that one parent took the children to school and the other collected them.
72.The wife admitted that on Tuesday 9 October 2012 she told the husband “The children will be staying for the week at my parent’s home in [Suburb G] and they will be staying there until the Court matter is over. You will get to see the children on the weekend.” She also admitted that the husband said to her “I do not agree to the children staying at your parent’s home and I am particularly concerned for both children who would find the separation from me distressing. I am particularly concerned for [B] by reason of the severe disruption to her daily routine.”
73.The wife admitted that during the course of the morning of Wednesday 10 October 2012 she sent a text message to the husband stating that he could collect both children at 12.00 pm on the morning of Saturday 13 October 2012 but that he must return the children to her at B’s school at 9.15 am on Monday.
74.In his affidavit sworn 22 November 2013 the husband repeated much of the contents of the earlier affidavit as to his involvement with the children.
75.In the course of her oral evidence the wife sought to resile from many of the admissions which she had made. It appeared that she did that so as to minimise, to the extent that she was able to do so, the husband’s involvement with the children.
76.In the husband’s case, evidence was given by a neighbour who lived opposite the Suburb A home. Significantly, the neighbour gave evidence of a conversation with the wife when C was a baby and having difficulty sleeping through the night. The neighbour says that the wife said to her:
I’m organising a visit from Tresillian as both (the husband) and I are exhausted. (He) is feeding [C] a bottle before she goes to sleep every night and then he gets up to give her another bottle when she wakes up in the middle of the night to get her back to sleep.

77.The neighbour gave evidence that she distinctly remembered the conversation because she was so surprised that the husband would attend to all of the night care for C. The neighbour said that the wife said to her “He does get really tired – but he has been doing it every night and his working hours are flexible.”
78.The neighbour was challenged in relation to those statements but was adamant that she had accurately reported what the wife said and said she was so surprised that she had never forgotten the conversation. I accept her evidence.
79.Another friend of the husband’s gave evidence of conversations with the husband after B was born in 2005 when he attempted to arrange to meet the husband and the husband said “I can’t leave the house until [B’s] dinner and bedtime”. The friend recalled the husband frequently saying words to the effect, when he was late, “sorry … sometimes it takes a little bit longer for [B] to fall asleep.” The friend recalls the husband saying to him “[B] wants me to put her to bed because she wants me to sing the ‘ninna nanna’. I like to put [B] to bed as it is a special time for both of us.”
80.After C was born, the friend recalls the husband as saying to him in response to an invitation to dinner “I can go out but I have to put the kids to bed before I can join you” and “I have to give [C] her bottle so I have to be home by 11.30 pm if possible.” That evidence was unchallenged.
81.I accept the husband’s evidence that he was an involved parent and that he participated in the lives of the children in the way in which he has set out in his affidavit.
82.Which of the parents was the primary carer or indeed the primary attachment for each of the children is not, for the reasons which Mr L explained, the most relevant issue in this case.
83.Mr L’s observations of the children in the second report are that they each have a secure attachment to each of their parents. Asked specifically about the children’s attachment to their father Mr L said that it was evident from the attachment history of the children and from his observations that the children have a firm and secure attachment to their father.
84.Mr L also expressed the view that the fact that one parent may have been a primary carer was not determinative provided that he was satisfied that each parent’s care is acceptable and that there is a strong and secure attachment to each parent, which he believed to be the case with these children. Mr L stressed that no conclusions about the children’s attachments could be drawn based upon the number of hours a parent has been a primary caregiver.
85.The wife’s father and step-mother live in Australia as does her mother and clearly they are people with whom the children have significant and important relationships.
86.The husband’s entire family including his mother and father live in Italy. The husband’s parents travelled to Australia in 2002. The wife and the husband visited his parents in Italy in 2002 and the paternal grandparents came to Australia in 2005 when B was born. The parents and B travelled to Italy to visit the paternal grandparents in 2006. The paternal grandparents came to Australia in 2007 and again in 2009 and they met with the parents and B in Thailand when C was born. The paternal grandparents communicate with the children using Skype on an average of twice per week. B speaks to her grandparents in a mixture of English and Italian.
87.The relationship between the children and their paternal grandparents is clearly also an important relationship. It is for the purpose of fostering that relationship that the husband seeks the permission of the Court to take the children to Italy for holidays. The husband’s parents are now aged 76 and 73 years of age. The paternal grandfather in his oral evidence said that although he was in good health for his age he could not contemplate travelling to Australia again. If the children are to have any face to face time with their paternal grandparents, then that can only happen if the husband is permitted to take them to Italy.
88.Both of the parents have been committed and involved parents and have taken every opportunity to participate in the children’s lives. Mr L observed that there was little difference in the parenting capacity of each of the parents.
89.The factor to which Mr L gave the greatest weight in his considerations was the likely effect on the children of changes in their current arrangements for time with each parent.
90.Mr L recommended that the children live with their mother and that, until C reaches four years of age (April 2015) the children live with their father from Thursday afternoon until Monday morning in each week and one night overnight in the alternate week.
91.From the time C turns four years of age, Mr L recommended that the children spend a block of five nights with their father, from Thursday after school until Tuesday morning and an afternoon and evening in the alternate week but not overnight.
92.In cross-examination by Counsel for the wife, Mr L said:
One of the problems in this matter is trying to accommodate children who are in different developmental stages. And so my expectation is that – is that [C] would be more able to accommodate blocks of time sooner rather than later, a little sooner than the mother says, (a) because for several reasons. One is she has the benefit of her older sister who has gone before and who she sees as an attachment figure and (b) because [C] would appear, overall, to be accommodating quite well the current regime which is not too far off … what I am recommending is only a little more than she seems to be coping pretty well with now. So as I read the difference between my recommendations and the mother’s amended application, it’s, simply, I’m bringing the dates when the four, five nights start – I’m making them earlier and my arguments were as stated. [C] is in good psychological shape to be able to cope with this. Though, having said that, any change for these children, as indeed for all children, are going to be like anxiety bumps in the road that the parents have to manage as best they can and keep the children as secure as they can during that process. So one of the other underlying arguments between – for my recommendations was there is only two bumps in the road. So there – before [C] goes to school, she will be set in a pattern then we won’t have to be thinking about this too much again unless something unusual happens.

Challenged by all three Counsel, Mr L remained firm in his recommendations. He gave evidence that anxiety at handover, such as he had observed in C, was ameliorated by restricting the number of handovers and the number of changes to the children’s arrangements.
He said:
When I say she ([C]) can accommodate blocks, I think she would be able to cope with blocks because of various protective factors, like her sister being there, like her having, very evidently, a positive relationship with her father, her enthusiasm on seeing her father is undeniable. And so, yes, that’s – that’s why I think they could manage blocks. The other reason why I think they would be better off – and particularly [C] having blocks of time – is there, as I’ve previously mentioned, it’s less likely to stirring them (sic) frequently anxious thoughts.
In relation to C’s distress at handovers, Mr L said:
Attachment security includes being able to clearly and unambiguously express a need, which that does demonstrate that. So, yes, she is experiencing, I believe, some form of separation anxiety, partly in connection with her dad, but partly because of the frequencies of separations that have occurred. And so you can – you can imagine, as best one can, her internal world, being quite apprehensive about separations. So that’s – that’s the more complex answer from my point of view.
Mr L did not consider that C’s separation anxiety was a determinative factor. It was his evidence that separation anxiety is normal behaviour at certain development stages in a child’s life.
Mr L, in relation to the husband’s proposal for equal shared time, said:
The issue about equal time is not to do with attachment. I – we – if it was to do with attachment and only attachment, then I don’t think we would have a problem. However, at the current – the current relationship between the parents is not conducive to equal time, in my view. And that’s no reflection on either party, other than with children, especially when they’re younger, you need good communication. You need flexibility. You need to be able to reflect together in their problems without defensiveness and you need to have a positive regard – that is not just words – a positive regard for the other parent. And I – I’m not convinced that those factors are there now. In the passage of time, they might well be but that is just so impossible to predict.

He also said:
I think there is a huge preoccupation with overnights, when from a child’s point of view, from a building of a meaningful relationship point of view, what is infinitely more important than that, particularly as they're going to be entering – with the youngest one entering primary school in a couple of years and the elder one entering middle childhood, that it’s being able to engage a reasonable amount in their daily activities with their homework and with their school and they have extracurricular activities and so on and so forth – taking them to see the relatives – that would be the better situation, I think, for these children, and the reason that I'm holding on to the notion of five nights is that it still allows for the children to get a sense, as we all would like, a place – a base without overly impinging on the development of the relationship with the other parent, and a lot of the interactive time can be supplemented – complemented by daytime activities, you know, going into school, reading with the child. I would say in some instances, you know, an hour or so of reading and meeting the friends in the playground is worth 10 overnights in – through the child’s point of view.
In cross-examination by Counsel for the ICL, Mr L said that he considered a period of five nights with their father would not impinge upon the children’s relationship with their mother. He said that children need a primary home.
Mr L was unmoved in his recommendation that the time spent with the father in the “off” week should not be overnight because of the disruption that would be experienced by the children. It was his evidence that overnights in the “off” week became more and more difficult as children get older unless there is an extremely cooperative relationship between the parents, which was not apparent in this case. In his words: “the issues of stuff getting lost and missing and the need for parents to negotiate and talk to each other and not blame each other get – get more difficult and more problematic as children get older.”
In considering the effect on the children of a separation from their mother which is more significant than that which they currently experience, Mr L urged caution.
Both of the parents gave evidence that they intended to remain in the locality of B’s school and that C would attend the same school as B. Both of the parents gave evidence that C should remain in her present day care arrangements. They will maintain residences close enough for transfers between them to be effected easily.
Neither of the parents criticised the capacity of either of them to provide for the children. They are both loving, intelligent and committed parents.
The husband is Italian having grown up in Italy although he has lived in Australia for the last sixteen years. The wife grew up in the United States of America. C’s birth mother is Thai and her egg donor is also Thai and therefore C’s heritage is Italian, Thai and American. There was no evidence by either parent of any desire to introduce C to Thai culture and traditions. The wife gave evidence that she had no particular plans to travel with the children to the United States of America. The husband however, is teaching the children to speak Italian. The husband’s entire family of birth is Italian and all of them live in Italy and the children have a right to understand and be involved in the lifestyle, culture and traditions of their Italian heritage. Balanced against that right, is the wife’s concern that the husband will take the children to Italy and not return. That issue will be discussed separately in these reasons.
Having regard to all of the matters that have been outlined in these reasons, I accept Mr L’s recommendations and orders will be made which reflect them.
On the same basis, I do not consider that equal shared time is in the best interests of the children but the orders which will be made provide for significant and substantial time for the children with their father.
There were a number of issues upon which the parents disagreed.

CHRISTMAS

There was no evidence at all from the parties in support of their differing proposals in relation to Christmas. The wife proposed that she always have the children from 11am on Christmas Day. The husband proposed that the children alternate Christmas Eve and Christmas Day with each parent. Unless the parents otherwise agree, the orders will provide for Christmas to be alternated as the ICL proposed.

OVERSEAS TRAVEL

The wife opposed any overseas travel for the children. In submissions it was suggested that if the husband were to post a bond of $50,000 then she might agree to his taking the children to Italy but that suggestion was never put to the husband.
Her stated reason for opposing travel to Italy was her fear that, because she is not C’s biological mother, the father might be able to persuade the courts in Italy against a return to Australia if the provisions of the Hague Convention on the Civil Aspects of International Child Abduction were invoked.
Counsel for the wife conceded that, if there were an order in place for the parties to have equal shared parental responsibility, and the mother was exercising rights of custody at the time of the children’s removal from Australia, then the fact that she is not a biological parent would be irrelevant.
I accept that the mother’s concerns are subjectively genuine and understandable. However, it is the objective evidence that needs to be considered.
The husband is an Australian citizen and has lived in Australia for 16 years. He gave evidence that he enjoys his job and would not be able to retain his employment if he were not in Australia. He also conceded that, in his specialist field, he could probably get work anywhere in the world.
The husband gave evidence that he considers that the children need to maintain their relationship with their mother and that he would never deprive them of that relationship. That evidence is supported by the fact that, in these proceedings, he seeks a shared arrangement and does not ask the Court to make orders that would result in the children living primarily with him.
The husband also gave evidence of his relationship with Ms F and her extended family as being important to him.
The paternal grandfather, when asked if he would like to see his son living in Italy said, tellingly, that the husband has his own family in Australia and that family needs both the mother and the father in equal parts.
Mr L gave evidence that when B is six years old she would be able to manage half of the school holidays with each parent.
There is no evidence that persuades me that the father is unlikely to return the children to Australia if he is permitted to take them to visit their grandparents.

COSTS OF THE ICL AND THE SINGLE EXPERT

The wife’s position is that the husband should pay the whole of the costs of the single expert and of the ICL because he has a greater income than she does.
The disparity in their incomes and respective financial positions will be taken into account in the consideration of appropriate division of their property.
Each will receive funds. Each should contribute equally to the costs of the ICL and the single expert.

PROPERTY SETTLEMENT

ISSUES

There were two areas of dispute between the parties. The first was as to their initial contributions.
The second related to a company, Company H, incorporated in the United States of America which trades as AB. The website through which the business trades is … .com. In these reasons the company, the website and the business will be referred to as “AB”.
The wife asserts that the husband is the beneficial owner of AB. The husband asserts that he has no financial or legal interest in AB and is not a shareholder, director or employee.
The husband asserts that AB is the business of his father.
The husband’s father asserts that he is the sole owner of AB.
In order to determine the assets and liabilities of the parties this dispute must first be determined.

The husband is employed in the IT field for a large multinational company. His work is conducted mainly from home and during the time that the parties lived together in the same home he worked at home although he occasionally attended at his office.
The husband’s father has lived in Italy all of his life and worked in Italy until his retirement.
The wife asserts that in 2009 the husband started AB as a business.
She asserts that the husband has expanded the business to other countries and that it currently operates in Europe, the United States of America and in Australia.
The wife further asserts that the business has been very successful. In support of her assertions the wife relies upon payments made to AB in the Paypal account set up by the husband.
The wife also relied upon her possession of a USB stick which she had either removed from the husband’s computer and retained (as he alleged) or removed and copied (as she alleged).
The wife tendered in evidence a copy of a document of thirty-eight pages in length which listed the files contained on the USB stick. Some but not all of the files were labelled in a way which made it possible to at least guess what they contained.
In addition, the wife tendered a bundle of invoices of AB between 11 July 2011 and 17 May 2012. The bundle included 29 invoices. Six of those invoices recorded, as the address of AB, the address which was acknowledged to be an address used by the husband. Those invoices were issued between 11 July 2011 and 22 July 2011.
The balance of the invoices issued between 15 November 2011 and 17 May 2012 were addressed to Company H at an address in the USA.
On those of the invoices which included directions for payment, the direction was for payment to Mr Sassi Snr (the husband’s father) at a bank in Italy. None of the invoices contains a direction for payment to the husband.
The wife also relied upon records subpoenaed from Paypal which show money due to AB being paid into a Paypal account in the name of the husband.
The husband at all times maintained that AB was his father’s business.
In late 2007 the husband registered a domain name “BC”.
The husband’s father, Mr Sassi Snr, who swore an affidavit in proceedings and was cross-examined gave evidence that in mid-2008 he had a conversation with the husband who told him about BC which was a website designed to connect Category J workers with people who needed Category J workers.
The husband’s father said that that discussion gave him an idea about selling business leads. The husband’s father gave evidence that having been involved in sales for all of his life he had built up over the years a large database of contacts.
The husband’s father was approaching retirement and in about 2008 he spoke to the husband and said “Would it be complex to set up a small website where I could sell business leads?” The husband agreed to assist his father, the husband being a specialist in this field, and over the next few months the husband and his father worked together to set up AB.
The husband’s father gave evidence that he prepared all of the content, the structure and the data. The husband’s father gave evidence that it was the husband who did the IT work, found a web hosting provider and helped with English where it was needed.
The husband’s father gave evidence that he could not create a website in Italy because he had cancelled his “Partita Iva” (the Italian equivalent of the Australian ABN) when he retired and that without the Partita Iva he could not open a Paypal account or a credit card processing account in Italy.
The husband’s father, in his affidavit, said that he did not want to open a new Partita Iva because “of the associated red tape and the taxes and other duties connected to it, is a real nightmare, and also because it would have had the effect to substantially cut my already modest pension.”
The husband’s father in his affidavit said “The business started running in mid-2009. I was doing all the emails and the customers’ inquiries and (the husband) was helping with the more technical parts as he had already the infrastructure in place because of his project [BC].”
The husband’s father gave evidence that he had a conversation with the husband about advertising over the internet and that the husband assisted him in late 2009 or early 2010 in placing some advertisements on Google.
The husband’s father gave evidence that in late 2010 the website was hacked into and the husband was able to fix the problem for him and at the same time create a system by which the data, the website and the working environment were backed up on both the husband’s computer and his father’s computer. The husband also created a remote mechanism by which he was able to work on his father’s computer and vice versa. In his oral evidence the husband’s father said that the remote connection could only be enlivened if he gave the husband a password.
The husband gave evidence that he assisted his father to establish AB in about 2009.
In about mid 2010 the husband sought to replicate, in Australia, the business conducted by AB in Italy. He established a business known as CD for which he obtained an Australian ABN and he arranged for a website to be constructed.
In about September 2011 he assisted his father in the establishment of Company H (which trades as AB) and is registered in the United States of America.
The husband said that Company H had been incorporated in the USA because the costs of incorporation were very low and the bureaucratic requirements very simple.
Because his father does not speak English it was the husband who undertook the incorporation of the company. There was no evidence that the husband was a shareholder or director of the company.
The husband said that he had provided his father with technical assistance and English language support.
Both the husband and his father were cross-examined extensively in relation to this matter.
The husband gave evidence that the inclusion on the AB invoices of his Sydney address, for a period of time in July 2011, was as a result of a software problem since AB invoices were being produced using the same server as invoices for BC and CD.
The husband agreed that he had allowed his father to use his Paypal account for AB, that being the same Paypal account which was used by BC and CD.
The husband gave evidence that he was unable to have access to the portion of the Paypal account which related to invoices payable to AB because he did not have the password, that password being held by his father.
The husband was able to gain access to the portion of the Paypal account which related to either BC or CD.
The husband was adamant that he had no interest in AB and pointed to the fact that when he had tried to duplicate the AB business in Australia using CD he had registered the business in Australia and in his own name.
Mr Sassi Snr, the husband’s father, was cross-examined by telephone, with the assistance of an Italian interpreter. He agreed that it had been the husband who did the technical work required to set up the website but once the website was operating he said that he was sufficiently computer literate to operate the business without assistance.
The husband’s father estimated that the husband had given him assistance on the website for probably two to three hours per week.
The husband’s father gave evidence that between 2010 when AB commenced its operation and 2012, that is a period of about three calendar years, he had received approximately 100,000 Euros from the business.
In relation to the Paypal account the husband’s father explained that the husband “sublet” the Paypal account to him because he did not have an Italian tax number and could not set up his own Paypal account.
The husband’s father gave evidence that the husband did not have access to the part of the Paypal account which handled the invoices or payments to AB.
The husband’s father gave evidence that the money was received by him in Euros and banked into his account in the IW Bank in Italy.
The wife was unable to demonstrate that any money from AB had found its way into any bank account of the husband.
In submissions, Counsel for the wife invited the Court to find that the evidence of the husband and his father was inherently unbelievable. I do not accept that submission.
The evidence of the husband and his father was entirely consistent, each with the other.
The explanation of the husband’s involvement in setting up the internet business was believable and consistent with the husband’s abilities.
The explanation of the husband and his father in relation to the father’s use of the husband’s Paypal account was believable. The explanation given by the husband’s father of his inability to operate a Paypal account on his own behalf in Italy was believable.
There was nothing in the evidence of the husband or his father which was inherently improbable or unbelievable. I accept their evidence.
The onus was upon the wife to prove that which she asserted. The wife has failed to demonstrate the husband has any interest in AB.

JOINT BALANCE SHEET

At the commencement of the proceedings the parties tendered a Joint Balance Sheet (“the Balance Sheet”) which is reproduced below.

Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
ASSETS
1.	J	[I Street, Suburb A]	$ 900,000	$900, 000
2.	H	St George Bank Acct No …34	$ Unknown	$1,672.70
3.	H	St George Bank Acct No …26	$ Unknown	$2,000.37
4.	H	Sydney Credit Union Account	$ Unknown	$NIL
5.	H	CMC Market	$ Unknown	$859.93
6.	H	Pay Pal Account	$ Unknown	NIL
7.	H	BT Life Insurance	$ Unknown	NIL
8.	W	Sydney Credit Union Acct No …90	$10,225	Unknown
9.	W	1068 IGA SHARES	$6,023.52	$6,023.52
10.	H	Renault [motor vehicle]	$11,600	$8,500
11.	W	Toyota [motor vehicle]	$7,000	$9, 000
12.	W	Household Contents	$ 5,000	$5,000
13.	H	[AB]	$150,000	NIL
14.	H	[Company H] (… USA)	$150, 000	NIL
15.	H	Italian Bank Account Wbank	$300, 000	NIL
16.	W	Wifes UBank a/c …91	NIL	Unknown
17.	H	50% of [Mr L’s] fees owed by Wife to Husband	$7,000
18.	H	Bankwest PayPal Linked Account for [AB]	Unknown	NIL

Total

$1,539.848.52

$ 940,056.52

ADDBACKS
19.	H	Transferred from mortgage offset account 12 May 2012-7 June 2012	$ 63, 311.00	$ 60, 000
20.	W	Transferred from mortgage offset account 12 May 2012-7 June 2012	$ NIL	$ 63, 110
21.	H	Transferred from mortgage 14 November 2012	$ 3684.00	NIL
22.	H	St George Account …26 as of 4 May 2012	$ 27, 664.00	NIL

Total

$ 94,659

$123,110

LIABILITIES
23.	J	Mortgage –Sydney Credit Union	$ 464,416.00	$ 467, 116.20
24.	W	50% of [Mr L’s] fees	$	$ 7,000
25.	H	Debt to [Mr K]	$	$12, 000
26.	H	St George Visa Card	$	$ 16,000
27.	H	Estimated Outstanding Legal Fees	$	$ 45,000
28.	W	Estimated Legal Fees	$ 50,000	Unknown
29.	W	University Fees	$ 7,000	Unknown

Total

$ 521,416.00

$547,116.20

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife / de facto partner’s value	Husband / de facto partner’s value
30.	H	BT Employer Super	Accumulation	$ Unknown	$189, 693.92
31.	H	Advance Super	Accumulation	$	$ 8,340.39
32.	W	[M] Super	Accumulation	$ 89,916.45	$ 89, 916.45
33.	$	$
34.	$	$

Total

$ 89,916.45

$ 283, 770.31

The areas of discrepancy or lack of agreement will be dealt with using the item numbers in the Balance Sheet.
In relation to items 2 to 12 inclusive there was no evidence to support the contentions of either party and I propose to treat the figures given by each party in relation to his or her asset as an admission against interest.
In relation to items 13, 14, 15 and 18, having regard to the findings I have already made I propose to delete references to AB, Company H, the Italian Bank Account with W Bank, and the Paypal account. The wife did not adduce any evidence to substantiate her allegations of the value of the Paypal account. In addition, for the reasons set out above, the husband has no interest in AB or Company H and consequently no interest in the W Bank account in relation which there was also no evidence as to its value.
Item 16 will be removed. There is no evidence about this item.
Item 17 relates to the payment of the fees due to Mr L and that will be removed from the Balance Sheet and dealt with separately.
In relation to claims at items 19 and 20 in relation to add backs, the evidence is that each of the parties received $63,311 from monies which had been invested after the sale of the Brisbane property. Each of them has used that money to pay for their various living expenses and undoubtedly for legal expenses and I propose to disregard that money as having been appropriately spent and no longer available for distribution.
There is no evidence to substantiate the claim in item 21 that the husband transferred money from the mortgage account.
There is no evidence to substantiate the claim at paragraph 22 that $27,664 should be added back. The claimed add backs will not be included in the Balance Sheet.
In relation to liabilities the parties produced no evidence to substantiate their respective claims in relation to the amount of the mortgage to the Sydney Credit Union at Item 23. It is more likely that the husband, who pays the mortgage, would be accurate and I accept his assessment.
Item 24, relating to the fees due to Mr L will be removed from the Balance Sheet and dealt with separately.
There is no evidence to support the claimed debt at Item 25 and that will be removed from the Balance Sheet.
At Item 26 there was no challenge in relation to the husband’s visa card debt. I note that his outgoings exceed his income by about $700 per week and that he is paying the costs of the mortgage, rates and utilities in relation to the Suburb A home as well as his own housing costs.
The parties each have outstanding legal fees which they will pay from the monies which they respectively receive and I propose to remove both of those items from the Balance Sheet.
The wife was not challenged in relation to the payment of university fees of $7,000 and neither were any submissions made to the effect that it should not be taken into account and therefore that liability will be allowed.
There is no dispute in relation to the respective superannuation entitlements.
Therefore I find that the parties’ assets and liabilities are as follows.

Owned		Description	Value
1.	J	I Street, Suburb A	$900, 000
2.	H	St George Bank Acct No …34	$1,672.70
3.	H	St George Bank Acct No …26	$2,000.37
4.	H	CMC Market	$859.93
5.	W	Sydney Credit Union Acct No …90	$10,225
6.	W	1068 IGA SHARES	$6,023.52
7.	H	Renault motor vehicle	$8,500
8.	W	Toyota motor vehicle	$7, 000
9.	W	Household Contents	$5,000

Total

$941,282

35.	J	Mortgage –Sydney Credit Union	$ 467,116
36.	H	St George Visa Card	$ 16,000
37.	W	University Fees	$7,000

Total

$490,116

Member		Name of Fund	Type of Interest	Husband / de facto partner’s value
38.	H	BT Employer Super	Accumulation	$189,693.92
39.	H	Advance Super	Accumulation	$ 8,340.39
40.	W	M Super	Accumulation	$ 89,916.45

Total

$287,950.76

I therefore find that the parties have net assets, excluding superannuation, of $451,166.
Of that pool, the husband has personal property worth $13,033 and the wife has personal property worth $28,249.
No submissions were made as to the manner in which the parties’ respective applications for superannuation splitting orders should be treated. I therefore propose that the superannuation entitlements should be split in the same proportions as the other property is divided.

SECTION 79(2)

The most significant asset owned by the parties is the Suburb A home which is jointly owned. In circumstances where they no longer are able to enjoy the benefit of that property jointly it is appropriate that an adjustment be made to their respective entitlements.

CONTRIBUTIONS

It was the unchallenged evidence of the husband that at the commencement of cohabitation he had savings of $113,000, a car and whitegoods which he estimated to be valued at a further $6,000, superannuation entitlements with BT Super of $20,195 and a retirement savings account of $6,146. Thus the husband’s initial contributions were $145,341.
The wife gave evidence that at the commencement of cohabitation she had savings of $30,000. That evidence was challenged by the husband who said that it was his recollection that the wife had savings of approximately $9,000. The wife was unable to produce any documentary evidence to support her contention although she was able to produce a document which suggested that in 2005 she had $30,000.
After the parties commenced cohabitation they both worked and earned an income. After the birth of B, the husband continued to work although most of his work was able to be done from home and he was therefore able, in addition to working fulltime, to make a significant contribution to the care and welfare of the children.
In April 2004 the Brisbane property was purchased using $50,000 from the husband’s initial contribution as the deposit. I am unable to find that the wife made any contribution to the purchase money used for the Brisbane property. The balance of the purchase money was borrowed and, by the time the property was sold in April 2010 the mortgage had been repaid.
In October 2005, $25,000 from the wife’s savings was deposited into the offset account for the Brisbane mortgage. There is no evidence which assists me to determine whether or not those savings were made before or after the commencement of cohabitation except that the husband concedes that the wife had approximately $9,000 in savings at the time of cohabitation.
The Suburb A home was purchased in September 2010 for $818,000. The parties borrowed $500,000 and the balance of the purchase price was provided from the sale of the Brisbane property.
The Suburb A home was extensively renovated. I am unable to find that either party contributed more than the other in relation to the work which was done to the renovations and I accept the evidence of both of them that substantial work was done by the wife’s brother but that he was paid for the work he did.
After the parties physically separated in May 2012 the husband continued to make the monthly mortgage payments, and to pay rates, insurance and utilities for the Suburb A home totalling approximately $3,100 each month. Until the beginning of 2014 he paid C’s child care fees of $712 a month and he continues to pay the children’s tuition. Until July 2013 the husband also paid for the children’s extra-curricular activities such as gymnastics and swimming.
During the period when the parties had physically separated the wife had the primary care of the children.
The discrepancy between their initial contributions has to be considered in the light of the fact that they bought and sold properties and jointly parented two children and I do not consider that the difference between their initial contributions is so significant as to warrant adjustment. I therefore find that the parties’ contributions to the date of hearing are equal.

SECTION 75(2)

The wife seeks a substantial adjustment pursuant to section 75(2) to take into account the fact that the husband’s earning capacity is greater than hers. The evidence before the Court is that the husband receives a base salary of $186,000 per annum and in addition is entitled to a bonus which could be up to 10 per cent of that amount. Therefore he has the potential to earn $200,000 per annum. In previous years he has received less than the full amount of the bonus. In 2012 he received less than 10 per cent, in 2011 he received 5 per cent and he received nothing in 2009.
It was submitted on behalf of the wife that the husband also has the capacity to operate a successful internet business. Whilst I accept that the husband has a capacity to operate an internet business there is no evidence that he has the capacity to operate a successful business having previously failed to do so in relation to both BC and CD.
I find that the husband’s earning capacity is between $186,000 and $200,000 per annum.
The wife is retraining to be employed in the education industry. There is no evidence before the Court of the amount which she is likely to earn in the education industry but I accept that it will be less than that which the husband currently earns. How much less I cannot assess.
The wife, because she is studying and caring for the children, does not have the capacity to work full time for the next two years. Thereafter she assumes that she will be employed full time in the education industry.
Each of the parties is of approximately the same age and each is in good health.
The parties will share the care of the children, although not equally, and each of them will be able to arrange their childcare commitments around their employment. Each of them will have the responsibility to rehouse the children.
Neither party will have access to superannuation for many years.
Once the husband stops paying the outgoings on the Suburb A home he will commence paying Child Support. It is his unchallenged evidence that he will be assessed to pay $431 per week or $22,412 per annum.
In those circumstances it is appropriate to make a modest adjustment in favour of the wife for section 75(2) factors and I propose to make a 10 per cent adjustment so that the property of the parties will be divided between them as to 60 per cent to the wife and 40 per cent to the husband.

EFFECT OF THESE ORDERS

The wife wishes to retain the Suburb A home and hopes that her family will be able to assist her in borrowing the money to pay out the interest of the husband. She should be given the opportunity to attempt to acquire his interest and, in that event, he should receive a sum certain based on the agreed values of the assets at the date of hearing.
The wife must pay the husband 40 per cent of the net asset pool or $180,446. He has personal property worth $13,033 and debts of $16,000 leaving a net debt of $2,967. He will therefore receive $183,433.
If the wife is unable to pay out the husband’s interest, and the Suburb A home is sold, there will need to be an adjustment of cash from the wife to the husband to account for the disparity in the value of their personal property. She has personal property worth $28,249 and a debt of $7,000 giving her personal property with a net value of $21,249.
The parties have personal property with a net value of $18,282 ($21,249 less $2,967). The husband is entitled to 40 per cent of that amount or $7,312.
Therefore the orders will provide that the husband receives 40 per cent of the net proceeds of sale, the wife pays him the sum of $7,312, representing 40 per cent of their net personal property from her share, and the wife receives the balance.
Their superannuation should be divided between them in the same proportions as the rest of their property. Neither of them will have the benefit of superannuation for some time.

THE WIFE’S APPLICATION FOR SPOUSAL MAINTENANCE

If the Suburb A home is sold, the wife will receive by way of property settlement money from the proceeds of sale approximately $242,421 and a share of the husband’s superannuation entitlements.
If she retains the property, she will receive no cash and will have to borrow to pay out the husband’s entitlements.
The wife has qualifications in managerial roles. She was employed in that capacity on a full time basis between 1996 and 2005 and on a part time basis after the birth of B. Her current university commitments require her to attend classes on Thursdays and Fridays and she will be required to do work placement on 45 Wednesdays.
In cross-examination it was put to the wife that she had the capacity to work on Mondays and Tuesdays and she conceded that she had made no attempt to gain employment. The wife conceded that there was nothing preventing her from obtaining employment in the two days per week which was available to her but that she had chosen not to do so.
I must therefore conclude that the wife has some capacity to maintain herself by way of gainful employment. I am however, unable to determine what that capacity is.
The wife was challenged in relation to her claimed expenses in Part N of her Financial Statement. I do not find her claimed expenses for her own support to be excessive. Her expenses, excluding the component for mortgage payments, are $482.
The wife estimated that she would pay a total of $800 per week by way of mortgage payments and rates, if she retains the Suburb A home. That is approximately the amount that the husband currently pays in relation to the Suburb A home. Allocating half of that amount as attributable to her, she claims expenses of $882 per week.
There is no evidence as to the reasonable rent she will have to pay for a suitable property in the same area if she is unable to retain the home.
Therefore, in the event that the wife is unable to retain the home and needs to rent, I propose that she should be allowed as an expense the same amount that the husband pays to rent a three bedroom home, that is, $550 per week. In that event, her allowable expenses (allocating half of the rent as her expense) are $757 per week.
Because of the wife’s concession about being able to work at least two days per week, I propose in each event to reduce the wife’s expenses by two sevenths. Thus, if the wife retains the Suburb A home, her allowable expenses for the purpose of her application for spousal maintenance are $630. If she does not retain the home her allowable expenses for the purpose of spousal maintenance are $541.
The husband was also challenged in relation to the expenses claimed at Part N of his Financial Statement. He conceded that the amount claimed for child minding was not currently paid by him and therefore his expenses should be reduced by $178. The amount claimed for holidays of $200 per week, or $10,000 per annum approximately, the husband said was to fund the trip to Italy which he proposes with the children.
Since I do not propose to allow the children to be taken to Italy within the next two years that amount too should be deducted from the husband’s expenses.
The husband will be required to pay child support and his estimate of $431 per week is unchallenged. In the context of a spousal maintenance application the consideration in section 75(2)(d) of “the commitments of each of the parties that are necessary to enable the party to support …. a child … that the party has a duty to maintain” has significance in determining the capacity of the husband to provide support for the wife and should be taken into account.
Therefore I find that the husband’s reasonable Part N expenses are $1,805.
Excluding expenses in relation to the Suburb A home, his other expenses total $1,451. The husband’s total expenses for the purpose of this application, are $3,256. His fixed income is $3,528. I do not take his bonus into account for the purpose of this calculation as he has not received it and it is not available to him to use to pay maintenance.
The husband has a capacity to pay $250 per week in spousal maintenance and should do so until the commencement of the 2016 school year. In the absence of evidence as to the actual date of the commencement of the school year, the husband’s last payment of spousal maintenance should be made in the week ending 31 January 2016.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 28 March 2014.

Associate:

Date: 28 March 2014

[2014] FamCA 186

28 March 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Procedural Fairness