Bento & Bento

FAMILY COURT OF AUSTRALIA

BENTO & BENTO

[2007] FamCA 498

FAMILY LAW – CHILDREN - With whom children live - Significant conflict in relationship between parties and inability to effectively communicate - Parties to have equal shared parental responsibility for the children, except for decisions about schooling and non-urgent medical conditions

FAMILY LAW - PROPERTY SETTLEMENT - Wife has greater capacity for gainful employment in future - Husband greater superannuation entitlements - 10% adjustment in favour of wife after consideration of future responsibility of wife as predominant carer of young children - 70% to the wife, 30% to the husband.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA & 75(2)

Coghlan and Coghlan (2005) FLC 93- 220

APPLICANT:

MR BENTO

RESPONDENT:

MRS BENTO

FILE NUMBER:

ADF

3452

2002

DATE DELIVERED:

30 May 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

BURR J

HEARING DATE:

5, 6, 8, 9, 14, 15, 16 June 2006 and 11, 12, 13, 14, 15 December 2006 and 9 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Clelands

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Ross

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission – Mr Winter

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Burr will for all publication and reporting purposes be referred to as bento

Orders

That all previous current orders are hereby discharged.
That the parties have equal shared parental responsibility for the children, a son and a daughter both born on … April 2002 save and except the wife shall have sole responsibility in relation to the children’s schooling and their non-urgent medical needs.
That the said children do live with the husband:-
3.1from the conclusion of school Thursday to the commencement of school on the immediately following Tuesday in each alternate week commencing Thursday 31 May 2007.
3.2for half of all school holiday periods at times to be agreed between the parties, or in default of agreement, for the first half with such periods to commence at the conclusion of the last day of the school term save and except that for the 2008/2009 Christmas school holiday period the children shall spend alternating weeks with each parent;
3.3from 5.00pm Easter Thursday to 5.00pm Easter Saturday commencing 2008 and each alternate year thereafter;
3.4from 5.00pm Easter Saturday to 5.00pm Easter Monday and each alternate year commencing 2009;
3.5for a period of three hours (if a school day) or a period of six hours (if a non school day) for the said children’s birthday and the husband’s birthday at times to be agreed between the parties or in default of agreement from the conclusion of school until 6.30pm (if a school day) and from 12 noon to 6.00pm (if a non school day);
3.6 on Father’s Day from 10.00am to 6.00pm on condition that the said children shall be with the wife during the same period on Mother’s Day;
3.7from 4.00pm on the 24^th December 2007 to 4.00pm on the 25^th December 2007 and each alternate year thereafter PROVIDED that if the children are with the husband during holiday time then the children shall be returned to the wife from 4.00pm on the 25^th December 2007 until 4.00pm on the 26^th December 2007 and each alternate year thereafter;
3.8from 4.00pm on the 25^th December 2008 to 4.00pm on the 26^th December 2008 and each alternate year thereafter PROVIDED that if the children are with the husband during holiday time then the children shall be returned to the wife from 4.00pm on the 24^th December 2008 until 4.00pm on the 25^th December 2008 and each alternate year thereafter; and
3.9at such other times as agreed.
That the said children shall live with the wife at all other times.
In the event that the wife’s birthday or the said children’s birthday coincide with a period of time with the husband then the said children shall spend time with the wife for a period of time of three hours (if a school day) or a period of six hours (if a non school day) for each of the said children’s birthday and the wife’s birthday at times to be agreed between the parties or in default of agreement from the conclusion of school until 6.30pm (if a school day) and from 12 noon to 6.00pm (if a non school day).
That wherever possible all handovers do take place to and from the said children’s school or in the alternative at the E video store in B or at such other venue as the parties may agree in writing.
That the wife do authorise the said children’s school to release school reports, photographs and newsletters to the husband upon his request and at his expense.
That each party do forthwith notify the other of any medical emergency involving the said children or any major medical issue that is faced by the said children.
That the periods referred to in paragraph 3.1 shall be suspended during all school holiday periods with paragraph 3.1 to recommence on the first weekend of each school term.
That both parties be restrained and injunctions are hereby granted restraining each of them from:
(a) denigrating the other in the presence of the children or permitting any other person to do so;
(b)from physically disciplining the said children;
(c) from enrolling any of the said children in any activity which occurs or coincides with the other parent’s time without the consent of the other party first had and obtained;
(d)from moving the children’s places of residence outside of a 100 kilometre radius from their present places of residence without further order of a court of competent jurisdiction or the written agreement of the parties.
That the parties utilize a communication book to be exchanged at handovers.
That the parties separately and independently attend:
(a)counselling with Ms B to assist them in shielding the children from their own dispute; and
(b)anger management courses as recommended by the Independent Children’s Lawyer.
That each of the parties be entitled to attend school functions and activities in which the children participate, separate parent/teacher interviews and the children’s extra-curricular activities.
That the appointment of the Independent Children’s Lawyer be discharged.
That by way of settlement of property:-
15.1 The property situated at C being the whole of the land comprised and described in Certificate of Title Registered Volume … Folio … be forthwith placed on the market for sale with such agent and upon such terms and conditions as the parties may agree or in default of agreement as may be determined by the President of the South Australian Division of the Australian Property Institute and that the gross proceeds of the sale thereof be distributed as follows:
(a)Firstly, in payment of all and any real estate agents and auctioneers fees and commissions and any other costs associated with the aforesaid sale;
(b)Secondly, to discharge the Memorandum of Mortgage registered on the title of the said C property with the balance then remaining being described hereafter as “the net proceeds of sale”;
(c)That the wife then be paid an amount calculated as follows:
(i)70% of the net proceeds of sale; plus
(ii)$13,020.00
such amount be paid to the trust account of Clelands Solicitors on behalf of the wife and that the remaining balance of the net proceeds of sale be paid to the husband.
That pending sale of the said former matrimonial home at C the husband do duly pay and discharge all outgoings in relation to the property to the exoneration of the wife and do indemnify the wife against any liability for such outgoings.
That the wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband:
(a)the husband’s superannuation benefits and entitlements;
(b)the husband’s personal effects, clothing and jewellery;
(c)the husband’s furniture and tools;
(d)the husband’s National Australia Bank account;
(e)the husband’s A shares;
(f)the husband’s P shares; and
(g)the husband’s motor vehicle.
The husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife:
(a)the wife’s superannuation benefits and entitlements;
(b)the wife’s personal effects clothing and jewellery;
(c)      the wife’s furniture;
(d)      the wife’s vacant allotment at T;
(e)      the wife’s National Australia Bank account;
(f)       the wife’s B shares; and
(g)      the wife’s motor vehicle.
If either party shall refuse or neglect to execute any documents necessary to give effect to these orders within 7 days after the same has been tendered to him/her by or on behalf of the other for that purpose then and in such case a Registrar upon proof by Affidavit of such refusal or neglect is hereby appointed to execute and if, in his/her opinion it shall be necessary so to do, to settle the same and to do all such acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
Henceforth each party shall discharge without calling upon the other to contribute thereto their debts and liabilities contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
That all applications be removed from the pending list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF3452 of 2002

MR BENTO

Husband

And

MRS BENTO

Wife

REASONS FOR JUDGMENT

The Application

I have before me for determination competing applications of the wife and husband relating to the parties’ two children and property settlement.
There are two children of the marriage between the parties, namely twins a son (“Son”) and a daughter (“Daughter”), both born on … April 2002. Currently they are both 5 years of age. They commenced school in Term 2, 2007.
Each party seeks Orders that the twins (“the children”) live with them and spend time with the other party.

Background

The husband is currently 51 years of age and the wife 39, born on … October 1955 and … September 1967 respectively. They commenced cohabitating in about June/July 2000, although this was disrupted by frequent periods of separation before the parties married on … March 2002. The children were born a month later.
The marriage was of relatively short duration, characterised by a cycle of separation and reconciliation before the final separation in July 2004. A Decree Absolute was granted on … February 2006. During each separation, the children remained in the wife’s care, with the husband having contact with them as agreed between the parties.
The parties each have children from previous relationships. The husband’s two children C, now aged 10 and S now 14 years old, both live with the husband’s former wife and spend time with the husband. The wife’s son, L, who is nearly 19 years of age, lives with the maternal grandmother in Adelaide and is studying year 12. Throughout the parties’ relationship, the wife’s daughter A now aged 13, lived with her father and had contact with her mother, but following the parties’ final separation, A moved to reside with the wife and spends regular time with her father.
During cohabitation, both parties received a property settlement from their former marriages. In November 2000, pursuant to consent orders, the wife received total assets in the sum of $43,700.00. This was comprised of $15,000.00, a motor vehicle valued at $12,000.00, superannuation of $7,000.00, shares of $6,200.00 and furniture and effects to the tune of $3,500.00.
The wife purchased a property at O for $92,500.00 during a period of separation from the husband in November 2000. She paid $15,000.00 from her property settlement proceeds with the balance borrowed from the National Australia Bank (“NAB”). The house was later sold on … April 2002 with net proceeds of $40,465.98.
The husband’s property settlement in December 2000 included property at S, valued at $130,000.00 with a mortgage of $90,000.00, superannuation of $146,023.00, two motor vehicles with an aggregate value of $10,000.00 and shares, resulting in a total value of assets at $197,023.00. The S property was later sold in October 2001 with the proceeds of sale being applied to the purchase of R.
Throughout the parties’ relationship, they purchased and sold a number of properties in addition to the S and R properties.
In May 2001, the parties purchased property in their joint names at U, Queensland for $92,500.00 plus costs of $5,000.00 borrowed in entirety from NAB using the S and R properties as security. The Queensland property was later sold in June 2003 with net proceeds of $19,928.85 transferred to the wife.
The R property purchased with the proceeds of S was sold in October 2001. Following the discharge of the mortgage, $18,000.00 was applied to the Queensland mortgage and the balance of $90,000.00 deposited into the wife’s bank account before being used towards the purchase of the current former matrimonial home at C on 5 July 2003. The C property was purchased for $138,173.25, the purchase being funded by a $40,000.00 mortgage, and a deposit of $98,173.25 paid from the wife’s NAB account. Approximately $25,000.00 was further spent on renovations.
At the commencement of the relationship, the husband was employed full-time as a public servant earning $42,000.00 per annum and remained in that position until January 2004 when he resigned. At that stage the husband’s yearly income from his employment as a public servant was $58,000.00. Since then he has been briefly self-employed, operating a lawn mowing business. Currently the husband is in receipt of Centrelink benefits. In addition he undertakes some volunteer work at B.
The wife initially worked on a part-time basis as an administrator for F Company, increasing to full-time hours in March 2001 before taking maternity leave in November of that year. Following the birth of the children she has had intermittent part-time employment and is presently working three days per week at H School where her daughter A presently attends. At present she lives with her partner, Mr M, A and the children on a farm outside of B.
Immediately prior to the children being born, the wife’s father, with whom she had just reconciled and recommenced a relationship, was diagnosed with a terminal illness. Following the birth of the children, the wife attended hospital frequently before he died on … May 2002. In March 2003 the wife received $40,051.70 and a further sum of $5,328.16 on 8 April 2004 by way of inheritance from her deceased father.
At this point, it is important to note that the parties continue to maintain an angry and distrustful relationship that was evident throughout much of their time together. Both parties have made allegations of abuse or neglect against the other and have behaved in many respects in ways that are contrary to the best interests of their children, particularly causing the son to exhibit behavioural problems in the form of tantrums, anger and aggression.
During the marriage the wife alleged the husband physically assaulted her, and a Domestic Violence Restraining Order was issued on … February 2003 in favour of the wife. Further orders pertaining to the residence of the children were made in favour of the wife on … February 2003 and allowing the husband contact to be agreed. The parties reconciled 2-3 weeks later before separating again in October 2003 for 3 months.
Following the final separation, the husband removed the children from kindergarten, returning them only after an Order was made by the Court on … August 2004 that the children be returned to the wife’s care with the husband to have contact each weekend.
Further orders were made on … October 2004 by this Court that the children continue to reside with the wife, but have contact with the husband for 4 nights per fortnight from Wednesday to Sunday each alternate week. On … April 2005, orders changed the days of the husband’s contact to overnight contact on Friday to Sunday each alternate week and then Wednesday to Friday during the intervening week. Now, since orders made on … June 2006, the husband has an additional night with the children.

The Evidence

Each of the parties gave evidence in support of their respective applications. The husband called evidence from Ms S. The wife also called evidence from her partner Mr M, Ms K, Ms P and Ms B. She also relied on the affidavit of Dr N filed 1 May 2006 whom the husband did not require for cross-examination. The Independent Children’s Lawyer called Ms H as a witness and relied upon the affidavit of Dr B filed 30 March 2006 who was not required by either party for cross-examination.
The evidence of the parties, the wife’s mother and Ms P was not credible in many respects.

Relevant Law

Significant amendments were made to the Family Law Act with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I set out and deal with the relevant provisions below:
Section 60B
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.

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 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).

One matter of critical importance was not altered by the amending legislation. Section 60CA still requires the Court to “regard the best interests of the child as the paramount consideration” in deciding what, if any, parenting order to make. In making that determination as to what would represent the best interests of the child, the Court is guided by the provisions of Section 60CC which is divided into primary and additional considerations. I will deal with those matters now.

Section 60CC

Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1) states one of the objects as:-
(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.

As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-
(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 share duties and responsibilities concerning the care, welfare and development of their children;
Each of the parties is significant to their children, the twins. Each of them enjoys a significantly meaningful relationship with their children and their children with them. Any orders I make will recognise the need for the maintenance of the children’s relationships with both of their parents.
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
The overwhelming preponderance of the husband’s case was directed towards his belief that the wife had excessively physically abused the children and subjected them to violence. I will deal with these issues more comprehensively later in these Reasons.
However, what is clear is that the children have witnessed some unpleasant incidents between their parents and have suffered unnecessarily in a psychological and emotional sense from the highly conflictual relationship between their parents.
These issues emerge for more detailed consideration when I deal with other relevant provisions of the legislation.

Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;

I can place little weight on the views of the children. They are very young. They are only some 5 years of age. However, what they have said is insightful. Despite a number of specific concerns expressed by each of the parents as to the treatment and general level of care the children were receiving when with the other parent, the children reported highly favourably on both of their parents. Clinical psychologist, Ms H prepared three reports in this matter, the first being dated 28 February 2005, the second 29 March 2006, and the third 24 November 2006.
In each of her reports, Ms H reports very favourably upon the relationship the children enjoy with each of their parents. She records that neither child expressed any wish in relation to any preference for either parent. She confirmed that position in her oral evidence.

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);

Ms H’s three reports consistently remark upon the close bond and relationship that each of the children enjoys with each of their parents. They effectively do not differentiate one parent from the other in that regard.
In her third report at page 6 (para 3), Ms Hrecords that the daughter:-
“…rated her closest emotional attachments to be her mother and father, [twin brother] and [Mr M] followed by [A], [S] and [C]. On rating her feelings in a range of situations, she rated herself as very happy 10 out of 10 with [A], [S] and [C], 9 out of 10 with her mother and at kindergarten, 8 out of 10 with her father and 7 out of 10 with [her twin brother].”
“[The daughter[ reported that she often felt happy at kindergarten, her mother’s and father’s homes. She perceived both parents thought she was a good girl.”
A little later in the same report, at the same page and in the same paragraph, Ms H reports:-
“On the Family Relations Test [the daughter] assigned dependency and positive items in approximately equal numbers to both parents.”
Ms H records almost identical outcomes for the son. At page 7 (para 3) of her third report, she notes:-
“On the Heart Strings Activity Test, [the son] rated his closest emotional attachment to be with his mother, father, [A], followed by [Mr M] and his school friends. He did not want [his twin sister] to be in his family because she made him cross. In the Family Relationships Test, [the son] also assigned dependency items and positive items in approximately equal numbers to both parents.”
A little later Ms H then records:-
“On rating his feelings in a range of situations, [the son] rated himself as very happy, equivalent to 10 out of 10 with his friends in the kindergarten, 9 out of 10 with his mother and father, 8 out of 10 with [A], 7 out of 10 with [C] and [S], and 5 out of 10 with [his twin sister] because she made him cross. He felt happy when he came out of his bedroom, at kindergarten and with his mother and father.”
Despite what the son perceives as a difficult relationship he has with his sister, all of Ms H’s reports reflect the fact that the children not only enjoy close and loving relationships with each of their parents, but with all of their extended family members, particularly siblings and the wife’s new partner Mr M. Thus it will be essential that the children maintain regular and frequent meaningful relationships with each of their parents, their siblings and other significant adults in their lives.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
and
(f) the capacity of:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These issues loomed large for the husband over an extended period of time continuing throughout the proceedings. He remained utterly convinced that the wife was abusing the children and neglecting them in a variety of ways.
The husband presented some very compelling evidence to suggest that on a number of occasions in the past, the wife was not child-focussed in her conduct, attitudes, language and behaviour. On 24 November 2003, the husband recorded a series of telephone messages left for him by the wife. That recording is Exhibit 1 and the transcript of same is “MB22” to the husband’s Rule 15 Affidavit filed on 1 May 2006. It is a tape of a woman, who at that time, has quite clearly lost all emotional control. Her language is vicious, foul, frightening and contains a number of very serious, concerning and alarming threats. A concerning component is the sound of the two very distressed and crying children in the background. I am satisfied that the husband had every right to be extremely worried upon receipt of those messages. He was entitled to be extremely worried about the wife’s mental health and her intentions in relation to her own life and the lives of the two children. I am satisfied that he would have been “beside himself” with worry and panic. A disturbing feature too was the wife’s refusal to acknowledge her conduct in that regard until faced with the stark reality of it when the tape (Exhibit 1) was played in Court. It suggests that she was not remorseful, just regretful she had been caught.
Whilst I am satisfied that this incident was the most extreme example of such conduct by the wife, I am nonetheless satisfied that there were a large number of other events and incidents of concern stemming from the wife’s behaviour and language. She acknowledged as much to Ms H, as recorded in Ms H’s first report (at para 7 on page 6):-
“… but acknowledged that she could be very vicious with her tongue. She described herself as becoming a ‘super-bitch with children’s issues’”
Her treatment of the husband’s children C and S was at times atrocious and cruel. It was the husband’s obligation to protect his vulnerable children in those situations but in doing so he was brought into even greater conflict with his ill-behaved and selfish wife. I am satisfied that on many occasions the husband would have been “at his wit’s end” at the hands of the wife.
She further acknowledged in her evidence that she was guilty on a number of occasions of throwing things and smashing things. Her actions on many occasions were vindictive.
For his part, the husband was also guilty of violent, intimidatory and threatening behaviour on a number of occasions. He was guilty of some appalling behaviour and gross errors of judgment which included:-
41.1 Dragging the wife into the kitchen and holding a knife to her throat and wrist;
41.2 Threatening to kill the wife and/or himself;
41.3 Spitting on the wife;
41.4 Kicking in a door; and
41.5 Pushing her hard backwards into a buffet.
I am satisfied, though, that the conduct of both the parties was within the context of an extraordinarily volatile, inflammatory and passionate relationship. The situation was exacerbated by their regular and frequent separations and reconciliations. They were clearly unsuited to one another in so many respects and I am satisfied that it was for the benefit of the children that they ultimately parted and went their separate ways. The husband remains concerned that when he is not there to protect the children, the wife is still capable of using unreasonable force and inappropriate discipline in relation to the children. I am satisfied that for a period time, subsequent to the final separation between the parties, the wife continued to use improper physical discipline in respect of her two children. The children reported as much to Ms H on a number of occasions. The wife acknowledged that she had continued to use physical discipline for a considerable period after the separation. The husband was concerned that a number of bruises on the children could only be explained by the children having been hit by their wife. I cannot be satisfied though on the evidence that the bruising observed by the husband was caused by anything other than normal play by the children or by accidental contact with hard objects.
I am further satisfied that the wife has largely changed her attitude and conduct in that regard. I am satisfied that, with Ms H’s assistance and with the assistance of others, she has understood the importance of finding other methods of disciplining her children and she has in large part adopted those methods. I am satisfied that any physical discipline of the children by the wife is now a rare event indeed and not of a serious nature.
I am impressed by the wife’s new partner Mr M and impressed by the beneficial consequences that relationship has brought for the wife and, as a consequence, for the children. I am more than satisfied that the wife and Mr M enjoy a loving relationship. Mr M has clearly brought to the relationship and hence to the development of the wife’s character a new demeanour, considerable calm and restraint. He is an exceptionally positive influence upon the wife and the children. He was truthful in his evidence to the Court, whereas in many instances the wife was not.
I am satisfied though that the wife is now not the person she was during her relationship with the husband and for a period of time subsequent thereto. I am satisfied that in the vernacular, the wife has “moved on”. She is a different person. She treats the children differently. She responds to the children’s needs differently. She is able to deal with the irritations of her relationship with the husband in a more appropriate and mature manner. She is able to shield the children, to a large degree, from the extreme bitterness which still exists between the parties. Her own personal life seems now to be so content that she has been able to make many positive adjustments and will continue to be able to do so in the future. She has reconciled with her previously estranged mother. She has A back in her care and she enjoys a happy relationship with her son L.
In all other respects, I have no concerns about the wife’s parenting capacity. I am satisfied that she properly cares for the children. All reports from the children’s kindergarten are to the effect that they are doing well. The son has overcome some early difficulties and is now progressing well in his educational life.
The witnesses called by the wife all spoke highly of her parenting capacity. I accept their evidence in that regard.
For his part, regrettably, the husband appears locked in the past. He still perceives the wife to be the woman she was. He is unable to accept, apart from in a minor way, that she has changed her ways. He is unable to acknowledge that she does not present any physical or emotional threat to the children. He is reluctant to accept the reports of many, including consistent reports from Ms H, that the children enjoy a warm, loving and closely bonded relationship with their mother.
Having said that, save for that one area, all indicators are otherwise that the husband exhibits excellent parenting skills and demonstrates a sound parenting capacity in relation to the children. The children would not have reported so favourably, warmly and lovingly about their father to Ms H, if that were not the case.
It is essential that each of the parties acknowledge the importance of the other to their children. It is particularly important that the husband abandon his notion that the children are at risk in their mother’s care. His feelings in that regard have clearly been conveyed to the children. They have been influenced and affected by it to a degree, but fortunately for the husband, not to the detriment of their relationship with their mother. If it had been otherwise, then it may have been appropriate to limit the husband’s time with his children in order that his negative views of the wife did not emotionally impact upon the children and act as a negative influence in their relationship with their mother.
It is clear that I need to construct a parenting regime which closely involves both parents in the lives of their children. Whether each of the parents continues to enjoy the close relationship they presently do with their children, is entirely within their own hands. If they are unable to set aside the intensity of their differences and the antagonism which they feel towards each other, or at least shield the children from those feelings and issues, the children will be the ones to suffer. Ultimately it could impact upon the relationships that each of them enjoys with their parents. It is essential for the well-being of the children that the parties manufacture as positive a relationship as is possible, given their history, or certainly affect such a relationship in the presence of and to the knowledge of the children.
The impact of the parties’ poor relationship with each other upon the children has been remarked upon to Ms H by the children themselves. In Ms H’s third report, she reports the daughter as saying (page 6, para 3):-
“[The daughter] volunteered that her father and mother were still cross with each other.”
As Ms H said in her oral evidence the parents have forgotten the children within the intensity of their dispute with each other.
What is encouraging though is that, despite the significant differences and antagonism between the parties over many years, they have still managed to sustain the relationships between the children and the other parent. They have abided the Court’s orders in both letter and spirit. I am satisfied that they will continue to do so and that the children will be the beneficiaries.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The husband asks that the children reside predominantly with him. In the event that I do not accede to his request in that regard, he asks that I make orders in the nature of a shared parenting arrangement represented by equal time with each of the parents. Neither proposal of the husband is supported by the evidence. In her third report at page 10 (para 3) Ms H notes:-
“Given that the children have continued to manage well in their lives, maintenance of the current arrangement is recommended, unless there is further evidence at trial regarding the parties’ parenting capacities, ie evidence that the children’s physical safety or emotional well being had been placed at risk in either parents’ care. Continued residence with their mother with substantial visitation with their father, maintains stability and allows the children to share a relatively equal relationship with both parents, such that they both can be involved in a range of areas of the children’s daily lives.”
A little later on the same page (para 5), Ms H has this to say:-
“Given that the attempt at counselling was unsuccessful and there is limited evidence that the parties will be able to negotiate agreements around the children’s future needs, the option of shared care on a week about basis does not present as a viable option at this time. If in the future the parents were to demonstrate more tolerance/respect and trust in each others parenting capacity, such that they are able to discuss and negotiate issues related to the children’s needs, this might be considered when the children are older.”
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
No real issues of concern arise from my consideration pursuant to this subsection. Both parties remain living within relatively close proximity. That will remain the case even if the husband moves from B to M or W. Those distances will not hinder the children’s development. Those distances will still mean that the husband is able to take an active role in the children’s lives, including their school lives.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
and
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
There are no issues of relevance for my consideration pursuant to these subsections.
(j)any family violence involving the child or a member of the child’s family;
I have previously canvassed the issues of violence between the parties in the context of how it impacted upon their parenting capacities. No additional matters of relevance emerged for my consideration pursuant to this subsection.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is difficult to estimate whether any order I make is likely to reduce litigation between the parties. It will require an acceptance by each of them of the significant role of the other in their children’s lives. It will require the husband to accept that the children are safe in the care of their mother. Whilst each of the parties needs to remain alert to the welfare of their children, the excessive nervousness and hypervigilence about the children’s safety in the care of the other parent, particularly as exhibited by the husband, needs to subside or there is a risk that the children’s relationship with the husband in particular, will suffer.
(m) any other fact or circumstance that the court thinks is relevant.

Counsel for the Independent Children’s Lawyer urged me to make orders that the parties attend counselling with Ms B, that they attend anger management programmes and that the husband be restrained from photographing any injuries or bruising to the children. I agree that the evidence supports such orders being made and that such orders would represent the best interests of the children. If the children suffer concerning injury they should be taken for treatment, if appropriate, not photographed.
Section 60CC(4)
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Matters relevant to this section have been canvassed in full earlier in these reasons. I am satisfied that despite the antagonism between the parties, they have continued to recognise the importance of the children’s relationship with the other parent. Whilst there have been a number of very concerning elements about their conduct towards each other and the manner in which it has impacted upon their children, they have nonetheless abided all orders of the Court and maintained the regular connection and strong relationship of the children with both parents. The presentation of the children to Ms H is indicative of the fact that the children are not yet harmed permanently by the appalling relationship between the parties. However, the day may come when there is an obvious and demonstrated detrimental consequence for, or impact upon, the children.
I am nonetheless satisfied though, that each parent will continue to recognise the significance of the other parent to their children and will encourage and support the relationship within the structure of the orders I intend to make.
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable ground to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Neither the wife in her Further Amended Application for Final Orders filed on 1 May 2006, nor the husband in his Amended Response filed on 8 May 2006, seek orders for sole parental responsibility for the children. However, in their final addresses, both Counsel for the mother and the Independent Children’s Lawyer, argued that maintenance of the presumption could not be sustained on the evidence. The family violence and the poor relationship between the parties constitutes evidence that rebuts the presumption as not representing in all respects the best interests of the children. The orders that I intend to make will mean that each of the parents will play a significant role in the lives of their children. However, on the evidence it will not be accompanied by a capacity to communicate effectively on decisions impacting upon their children in relation to schooling and non urgent medical issues.
In my view the parties should enjoy equal shared parental responsibility save as to the aforementioned issues, the decisions in respect of which should rest with the wife. The children will be spending the majority of their time with her.

Section 65DAA

Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Even if this section did apply (which it does not) as I indicated earlier, it was the clear evidence of Ms H that it was not appropriate that the children spend equal time with each of their parents. I am satisfied on all of the evidence that such an arrangement would not accommodate their best interests.
As will be obvious from my reasons, my major concern is that the parents would find it extremely difficult if not impossible, given the antagonistic and conflictual nature of their relationship, to implement and give proper effect to an equal time or substantial and significant time arrangement. I am though, particularly concerned that they would not ever acquire the capacity to communicate with each other sufficiently to resolve difficulties which might arise in the parenting of their children on an equal shared care basis. I am further concerned as to the potentially negative consequences and impact such an arrangement would have upon the children, in effect, highlighted by Ms H in her reports and her evidence.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Despite my determination that the wife should have sole parental responsibility for the children in most respects, for all of the reasons outlined by me above, it is indeed appropriate that the children spend a substantial and significant time with each parent. It is my intention to order that the existing arrangement continue, that is, an arrangement whereby the children spend 5 nights in 14 with the husband and the balance with the wife. Such an arrangement was supported by Ms H. The structure though will be a little different, in that the period of time the children spend with their husband will be in one block of time and span alternate weeks in order that the parties may be fully involved in the children’s curricular and extracurricular activities spanning both week days and weekends. So too should they spend significant and substantial time with the children during school holidays. I believe that would be represented by the children spending equal holiday time with each of their parents, but on a week and week about basis whilst the children are young.
The husband has urged me to make an order that the travelling to effect handovers be shared if and when he moves to M or W. However, given the appallingly minor amounts he pays to the wife for child support, I believe that the husband should bear the responsibility for and costs of such travel.

Summary

The parties have vented a great deal of anger, vitriol and bitterness towards each other over a number of years now. They have been engaged in extended and extensive litigation. Within the context of that litigation they have had every opportunity to express every concern and complaint that they have about the other parent. Some of those concerns have indeed been alarming, but I am satisfied that they are now largely historical.
Each of the parents is significant to their children. The children love them dearly. The parents love their children dearly. The only thing which is preventing their children from enjoying a fulfilling happy life, is the relationship between the husband and the wife. The parties need to find ways and means of improving their relationship, or at the very least, completely disguising the intensity of their ill-feeling toward each other from their children. The fractious relationship between the parties and these proceedings must have taken a considerable toll upon them. They are, though, adults. It is the impact upon the children which is of most concern. It was a matter remarked upon in many ways and on many occasions by Ms H. The parties need to listen.

Property Settlement

Assets and Liabilities

The parties were able to agree on the identity and value of essentially all of the assets and liabilities relevant to my determination, and they are:-
1.    Former matrimonial home property
at C  $195,000.00
2.    Husband’s furniture and tools  $2,597.00
3.    Wife’s furniture  $2,613.00
4.    Husband’s business  NIL
5.    Husband’s NAB account  $500.00
6.    Wife’s NAB account  NIL
7.    Wife’s B shares  $6000.00
8.    Husband’s P shares  NIL
9.    Husband’s motor vehicle  $1000.00
10.    Wife’s motor vehicle  $1000.00
$208,710.00
The wife owns a vacant allotment at T. The parties were not able to agree on its value. However, the husband tendered evidence that the Council valuation of that property was $4000.00. The wife did not provide any evidence to the contrary. Thus I find that it’s value is $4000.00.
The husband owns 9 A shares. The parties agreed that I would look to the current listed price for those shares and simply add that value to the parties’ pool of assets. The share price for A is currently in the order of $10.70 and thus the total value is $96.00.
The wife has 2 small accumulation funds with R superannuation and A superannuation totalling $2,372.00. That is an agreed figure between the parties. In addition, the wife acknowledged that she accessed some of her superannuation benefits and entitlements to meet expenses and pay legal costs. She says that figure was between $6000.00 and $8000.00. Thus it is appropriate to notionally add back a mean figure of $7000.00.
Thus the total of the gross asset pool is $222,178.00.

Liabilities

The parties were also able to agree their liabilities, as follows:-
1.        Mortgage registered on the former
  matrimonial home property  $39,100.00
2.        Husband’s VISA card debt        $3,500.00
3.        Wife’s VISA card debt   $8,100.00
  Total              $50,700.00

The wife has incurred total legal costs as at the date I reserve this judgment, of $140,433.00, of which an amount of $80,000.00 was still unpaid. However, apart from the acknowledged approximate amount of $7000.00 drawn down against her superannuation entitlements, there is no amount of those costs which is appropriate be notionally added back into the parties’ pool of assets. The wife has not used or expended any asset of the parties in order to meet those costs.
Thus the total of the liabilities relevant to my determination is $50,700.00.

Husband’s Q Superannuation Benefits

In my view it is appropriate to treat the husband’s superannuation benefits and entitlements as a discrete and separate issue, a discretion I have been afforded by the Full Court in Coghlan and Coghlan (2005) FLC 93-220.
The parties agreed that as at the commencement of their cohabitation the husband had accumulated superannuation benefits and entitlements with Q in the sum of $146,023.00. They now have an agreed value of $279,585.00, an increase of some $133,000.00 in a 6-7 year period. The wife seeks a splittable payment pursuant to Section 90MT, with an amount of $70,000.00 fixed at the base amount. That figure approximates one half of the increase in the value of the husband’s superannuation entitlements with Q between the date of commencement of their cohabitation and the present date.
I do not though agree that that is the proper approach. The parties were together for only some 4 years and even that 4 year period was characterised by a number of separations and reconciliations. I am satisfied that the parties actually cohabitated for only a period of a little in excess of 2 years.
On a pure mathematical calculation the parties actually cohabited for 2 years of the 7 year period in which the husband’s superannuation increased by an amount of $133,000.00, and the fractional calculation would produce a figure of $38,000.00 and one half of that amount would be $19,000.00.
Pure mathematical calculations should though be avoided. That calculation does not recognise the fact that the increase in value referred to above was only as a consequence of the considerable value the husband’s fund had achieved at the date the parties commenced cohabitation. Neither of them was required to undertake any further contribution in order to achieve that increase. The husband resigned from the Public Service some 4 years after the parties met and cohabited. Thus, in my view, an allocation of some $19,000.00 to the wife would represent an unjust and inequitable manner in which to deal with the husband’s superannuation. If I was to set a base amount, in my view, based on the evidence, the appropriate figure would be more in the order of $10,000.00. Given that that represents a relatively modest figure, in my view it would not be of any value to either of the parties if I set a base amount at that figure. In my view the better manner in which to deal with the issue of the husband’s superannuation would be to add a figure of $10,000.00 to the amount the wife is otherwise to receive by way of property settlement. The husband would then retain the entirety of his superannuation benefits.

Husband’s A Superannuation Benefits

The husband also has an accumulation fund with A. No direct evidence was provided as to its value. The husband said he thought it was worth about $10,000.00. In the absence of any other evidence I find its value to be $10,000.00 thereby increasing the value of the gross asset pool to $232,178.00.
Thus the total net asset pool for division between the parties is represented by a figure of $181,478.00.

Contributions

The parties agreed that, aside from the husband’s superannuation with Q, the contributions at the commencement of their cohabitation were approximately equal. The detail of same is contained within the background set out earlier in these reasons.
During an acknowledged period of separation in late 2000, the wife purchased a property at O for $92,500.00. She used the $15,000.00 she secured from the property settlement with her former husband, as the deposit and borrowed the balance from NAB. When the property was sold in April 2002, she netted proceeds of $40,465.98. She eventually contributed those proceeds to the purchase of the former matrimonial home property at C on … July 2003.
Having already taking into account the $15,000.00 deposit on the O property as part of a contribution she made at the commencement of cohabitation then the balance of $25,000.00 of the total $40,000.00 profit on O property, should be considered as an additional contribution by the wife. The contribution by the wife of the said sum of $25,000.00 is acknowledged by the husband at page 6 of his Chronology of Relevant Events annexed to an affidavit filed by him on 25 May 2006. The other property purchases made by the parties during their relationship, ought appropriately be dealt with on the basis that they contributed equally to the purchase of same.
The husband further acknowledged that the wife made an additional contribution not matched by him. She contributed an inheritance from the estate of her late father in the sum of $40,000.00 to $45,000.00 (Exhibit 4) for the purchase of the former matrimonial home property at C. That contribution was made in mid 2003.
Discounting the husband’s superannuation which I dealt with separately, from the position where the parties contributed equally at the commencement of their relationship, the wife made a contribution of some $65,000.00 to $70,000.00 subsequent to the cohabitation, which was not matched by the husband.
The husband contended that the wife was guilty of wasting a significant sum of money on gambling on poker machines. It was a matter which troubled him to the extent that he cross examined the wife on the topic (particularly Exhibit 4) for something like 3 days. In the end result I am satisfied that the parties used to engage in that activity together for a period prior to the birth of the children. All that the husband was able to prove in the end result, on balance, was that for the 2003 year the total amount spent on poker machines by the wife was some $1200.00 to $1500.00. It is not a significant issue.
I am further satisfied that each of the parties contributed their labour and effort to some renovations on the S property which the husband received pursuant his property settlement with his former wife, although I accept that the majority were undertaken by the husband.
Each of the parties undertook a significant role in caring for their children during the times that they cohabited. I am further satisfied that domestic undertakings were shared to a large degree. However, during the parties’ periods of separation prior to the final separation, the wife’s role and responsibility in relation to the care of the children and undertaking various domestic tasks, was greater than that of the husband.
As urged by Counsel for the wife, the wife’s significantly greater contributions during a very short period of cohabitation would appropriately be recognised by a division of 60/40 in favour of the wife.

Section 75(2) Factors

I turn now, as I am obliged to do by Section 72(1) to the factors enumerated in Section 75(2).
(a)the age and state of health of each of the parties;
Age and health are not issues for the parties. The husband and the wife are 51 years and 39 years of age respectively. I was not made aware of any health issues that would impact on my findings.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

My finding after consideration of contributions will mean that the wife receives a greater share of the net property pool than does the husband. The husband though will enjoy superannuation benefits significantly greater than that of the wife. The wife has secured employment at the school that the children attend for 3 days per week. The husband is a social security recipient. The wife is younger and so has a lengthier working life ahead of her than does the husband. Thus her physical capacity for appropriate gainful employment is greater than that of the husband.
(c ) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The orders which I intend to make in relation to the children’s issues mean that the wife will shoulder the greater responsibility for the care of the children. They are still very young children and so that responsibility stands ahead of both parties for many years yet.
(d) commitments of each of the parties that are necessary to enable the party to support:-
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
No issues of relevance emerge for my consideration pursuant to these subsections.
(f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –
(i) any law of the Commonwealth, of a State or Territory or of another country;
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside of Australia, and the rate of any such pension, allowance or benefit being paid to either party.
The husband is in receipt of Social Security payments. In addition he will, upon eligibility, draw upon a South Australian Public Service pension which has a present agreed lump sum value of some $280,000.00. The wife has only a very modest superannuation benefit of some $2,400.00. Thus the husband is far better catered for in retirement than the wife is presently or could expect to be.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under considerations;
(l) the need to protect a party who wishes to continue that party’s role as a parent;
No additional matters of relevance emerge from my consideration pursuant to these subsections.
(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
The wife cohabits with Mr M. I accept his evidence and the evidence of the wife that he provides financial support to the wife and the children.
(n) the terms of any order made or proposed to be made under section 79 in relation to:-
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
As indicated earlier, the terms of the property order I propose to make, favour the wife.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage;

The husband pays by way of Child Support only the minimum amount required of a Social Security recipient, namely some $5.00 per week in total.
(o) any fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties;
These sub paragraphs do not give rise to any additional matters of relevance for my consideration.

Summary

After considering Section 75(2) factors, in my view the wife’s greater capacity for gainful employment into the future and the husband’s superior superannuation entitlements, effectively balance each other. That leaves the single most significant issue pursuant to Section 75(2) as being the care of the parties’ 5 year old twin children. Pursuant to the orders that I will make in these proceedings the wife will have the predominant care of those children for some 9 days in every 14. That will amount to a significant responsibility over the many years ahead that the children will remain dependent.
In my view the analysis of the Section 75(2) factors requires an additional adjustment of 10% in favour of the wife resulting in a 70/30 adjustment of the net asset pool in her favour.

Just and equitable

From the agreed pool of assets and as a consequence of my earlier findings, the wife is to receive;
1.Wife’s furniture  $2613.00
2.Wife’s vacant allotment at T  $4000.00
3.Wife’s B shares  $6000.00
4.Wife’s motor vehicle  $1000.00
5.Wife’s superannuation  $2372.00
6.Notional add back of drawn down superannuation  $7,000.00
Total        $22,985.00
The wife though will bear responsibility for her NAB Visa card which has an agreed liability of $8,100.00. Thus the net she will receive from those assets is $14,885.00.
However, ignoring for now the value of the former matrimonial property and the mortgage thereon, pursuant to my findings the wife is entitled to receive 70% of the total net assets. Those net assets, aside from the B property, total $25,578.00 calculated as follows:
1.        Husband’s furniture and tools   $2,597.00
2.        Wife’s furniture   $2,613.00
3.        Husband’s business   NIL
4.        Husband’s NAB account  $500.00
5.        Wife’s NAB account   NIL
6.        Wife’s B shares   $6000.00
7.        Husband’s P shares       NIL
8.        Husband’s motor vehicle   $1000.00
9.        Wife’s motor vehicle   $1000.00
10.      Wife’s T property   $4,000.00
11.      Husband’s A shares      $96.00
12.      Wife’s superannuation   $2,372.00
13.      Notional add back of Wife’s draw down
   of superannuation   $7,000.00
14.      Husband’s Q superannuation    $10,000.00
  Total                 $37,178.00
Less liabilities (apart from the mortgage)
15.Husband’s visa card debt   $3,500.00
16.Wife’s visa care debt                $8,100.00
Total $11,600.00
The total net is therefore $25,578.00
An amount of 70% of same is $17,905.00. Deducting the net value of the assets to be retained by the wife of $14,885.00 there is therefore a further sum of $3,020.00 due to the wife.
The wife also has a significant liability for legal fees in the order of $140,433.00. Apart from the aforesaid $7,000.00, none of those fees has been paid from any of the party’s asset pool. Counsel for the wife agreed that it was more appropriately a matter dealt with in a separate application for costs than within the context of these property settlement proceedings.
Counsel for the wife urged me to make a monetary order for a lump sum amount that the husband was to pay to the wife, irrespective of the price that was secured upon the sale of the former matrimonial home property. It was the husband’s clear case, and it certainly seems to be a reality on the figures, that the former matrimonial home property at B needs to be sold. Thus, in my view, justice and equity would not be served by fixing a monetary amount. Instead each of the parties should receive their appropriate percentages of the net proceeds of sale.
To the wife’s entitlement must be added the sum of $10,000.00 which I deemed to be the appropriate amount that she should receive on account of the husband’s Q superannuation benefits and entitlements.
As well as 70% of the net proceeds of sale of the former matrimonial home, the wife is therefore entitled to a further payment of $13,020.00.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate:

Date:

[2007] FamCA 498

30 May 2007

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