Blakeslee and Granville

[2016] FamCA 422

FAMILY COURT OF AUSTRALIA

BLAKESLEE & GRANVILLE [2016] FamCA 422

FAMILY LAW –  Where there were disputes about the time children would spend with each parent – where it was appropriate that generally the interim orders which had applied for some time should continue – where there was a dispute about contributions to the acquisition conservation and maintenance of property including a dispute as to the categorisation of a gift from a parent of one of the parties – the possible application of the Rule in Jones v Dunkell – whether the court has jurisdiction if superannuation funds are not valued in accordance with the regulations but the parties agree on the valuations – superannuation funds in the UK excluded.

Family Law Act 1975 (Cth) s 60CC, s 60CC(3)(f) & (l), s 75(2), s 79(2), s 79(4)(e), s 90MT(4), s 92MT(2 ) & s 92MT(2)(a) and (b), s 95(2)

Stanford v Stanford [2012] HCA 52

APPLICANT: Ms Blakeslee

RESPONDENT: Mr Granville

FILE NUMBER: CAC 751 of 2013

DATE DELIVERED: 19 May 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 9, 10 and 11 July 2014 and 9 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

Children

1. That the parents have equal shared parental responsibility for the children B born … 2008, C born … 2007 and D born … 2011 ("the children"), save that the mother have sole parental responsibility for medical and educational decisions relating to the children.

2. The children shall live with the father:

   (a)From 8 am Wednesday to 6 pm Friday and continuing each alternate week thereafter.

   (b)From 8 am Thursday to 6 pm Sunday and continuing each alternate week thereafter (continuing the pattern of the interim orders).

3. The children will otherwise except in accordance with these orders, live with the mother.

4. Each party may leave the children in the care of the children’s grandparents or in after school care provided they notify the other parent as soon as is practicable of the location of the children when they are not in the parent’s care.

5. During school holidays the children will spend time with the parents as follows:

   (a)With the mother for the first half of all school holiday periods in years ending in an odd number and with the father for the first half of all school holiday periods commencing in years ending in an even number (including years ending in  zero);

   (b)With the mother for the second half of all school holidays periods in years ending in an even number (including years ending in zero) and with the father for the second half of all school holiday periods in years ending in an odd number; and

   (c)Such further or other times as the parties may agree.

6. That for the purposes of defining school holidays, in the absence of any written agreement between the parties to the contrary, the following apply:

   (a)The first half of school holidays is deemed to commence at the end of classes on the last day of school;

   (b)The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;

   (c)The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or at 5pm on the middle Wednesday of the school holidays if the relevant school holiday period is for an odd number of weeks; and

   (d)One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2.  If the number of days are not even, the father is to have the extra day in years ending in an even number including years ending in zero) and the mother is to have the extra day in years ending in an odd number.

Property

1. Within 60 days of the operative date of these orders or such further time as may be agreed between the parties, the wife will pay to the husband (or as he may direct in writing) the sum of $300,000 by way of property settlement.

2. Contemporaneously with such payment the husband will transfer to the wife, at her expense, all his right title and interest, both at law and in equity, in the property known as E Street, Suburb F in the Australian Capital Territory being the residue unexpired of a Crown Lease for ninety-nine years being in respect of the piece and parcel of land known as Block … Section … contained in Certificate of Title Volume … folio … in the Land Titles Registry in Canberra ACT.

3. The wife shall at, or prior to, such transfer either obtain the discharge of mortgage (registration number …) from the parties to the Commonwealth Bank of Australia or secure the release of the husband from the personal covenants created by the said mortgage.

4. As and from the operative date of these orders, the wife will indemnify the husband and keep the husband indemnified from any liability for mortgage repayments or outgoings in respect of the said property.

5. Otherwise each or the parties will as against the other be the beneficial owner of all property whether real or personal in the possession or control of that party.

6. If the wife should fail to make the payment referred to in Order 7 above or by such further time as the parties may agree in writing, the parties and each of shall do all such things as may be necessary to effect the sale of the said Suburb F property and there is liberty in such circumstances to apply about the terms of the sale if the parties cannot reach agreement about them.

7. Upon settlement of such sale the net proceeds will be divided by payment to the husband of $300,000 and the payment to the wife of the balance.

Superannuation

1. That in accordance with s 90MT(4) of the Family Law Act 1975, a base amount of $48,983 is allocated to Mr Granville out of Ms Blakeslee’s interest in the PSSap Superannuation Fund.

2. That, in accordance with s 90MT(1)(a) of the Family Law Act 1975:

   (a)Mr Granville (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

   (b)The entitlement of Ms Blakeslee in the PSSap Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of Ms Blakeslee’s superannuation interest) is correspondingly reduced by force of this Order; and

   (c)That this Order has effect from the operative time and the operative time is 17 June 2016, or such earlier time when the trustee signifies to the parties or the lawyer for the parties that the trustee is satisfied that procedural fairness has been afforded to the trustee.  The lawyers for the husband shall notify the trustee of these Orders by email this day and send a hard copy to the trustee as soon as practicable thereafter.

   (d)The trustee has liberty to apply on or before 4pm on 16 June 2016

3. That the trustee of the PSSap Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to Mr Granville in the immediately preceding clause of this Order; and

   (b)Pay the entitlement whenever the trustee makes a splittable payment from Ms Blakeslee’s interest in the PSSap Superannuation Fund. 

4. That these Orders shall bind the Trustee of PSSap.

5. Otherwise each party will retain as against the other any interest in any other superannuation fund whether in Australia or otherwise.

6. Within seven days of the date of these Orders the husband and wife do all acts and things and sign all necessary documents to cause the sum of $15,800 (contributed to equally by each of them) to be placed in trust with the husband and wife as trustees to be held by them in trust for the three children of the parties.

7. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

8. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

9. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

10. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blakeslee & Granville 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 CANBERRA

FILE NUMBER: CAC 751 of 2013

Ms Blakeslee

Applicant

And

Mr Granville

Respondent

REASONS FOR JUDGMENT

Background

1. The disputes in this matter were between two very involved parents who had over the time of their relationship been very supportive of each other and who continued to be supportive of each other in many respects as parents.  The hearing occupied some three days of trial and many pages of affidavits[1].  But in the end the issues between the parties were relatively small in compass. 

   [1] The parties (at my invitation) sought to reopen the case and further evidence was filed before and accepted in Court on 9 May 2016. 

2. There was some dispute about when the parties began to live together but that seemed to have been settled by the time of trial as being in about October 2003, in the United Kingdom (the UK).  They married in 2006 and separated in May 2013. 

3. There were three children of the union, C, born in 2007, B, born in 2008 and D, born in 2011. 

4. At the time of their separation the parties were living in Suburb F in a house that they had substantially renovated.  The wife left the relationship.  Issues ensued about the time that she might spend with the children and this led to her filing an Initiating Application on 28 May 2013. 

5. On 26 July 2013 Judge Henderson (Federal Circuit Court) made interim children’s orders and so far as I am aware, those orders have applied ever since. 

6. Those orders provided that the parents would have equal shared parental responsibility for the children.  That order is still sought by each of the parents in this matter. 

7. The orders also prescribed that the children would spend from 8am on Wednesdays to 6pm on Fridays in one week and in the alternate week from 8am Thursday to 6pm Sunday.  The children were to live with their mother at other times and it was provided that each party may leave the children in the care of the children’s grandparents or in after school care provided they notified the other parent as soon as possible of the location of the children when not in the parents’ care. 

8. The parties attended on Ms G, a Family Consultant in the Family Court of Australia and a Family Report was prepared, which became Exhibit J1.  In the report Ms G congratulated the parties on their attitude to each other (at least in part) and substantially endorsed the arrangements set out as they were at the time of that report (February 2014) with the possibility there might be an additional day of time for the children with their father.   

9. The parties were also in dispute about property; but there were few complications about the composition of the property to be divided.  Notwithstanding negotiations, they were unable to the date of the trial to reach agreement about the division of property or for that matter the precise arrangements about the time the children would spend with each of them. 

10. The matter was transferred from the Federal Circuit Court to the Family Court on 5 November 2013 and after a number of interlocutory and procedural matters in December 2013, February 2014 and May 2014 the matter was heard between 9 and 11 July 2014.  Judgment was then reserved. 

11. The time that it has taken for me to deliver my Reasons for Judgment in this matter and the final orders is, by any measure, unacceptable and I apologise unreservedly to the parties for the delay. 

12. As a consequence of that delay the parties were invited to reopen the proceedings as the time drew near for the delivery of the judgment. 

13. Each of the parties filed an affidavit and in addition, the real estate valuer, Mr H, was invited to update his valuation of the Suburb F property.  As the wife confirmed in Court the result was uncontroversial.  The revised valuation of the property is $1,225,000.  Each of the parties provided further information about his or her current financial circumstances.  The wife complained, with some justification, that the material provided by her former husband was lacking detail or documentary evidence to support it.  It is fair to say that on the evidence looked at in any common sense sort of a way, how the husband survives financially on a week to week basis is difficult to comprehend - if all the relevant information is before the Court.  I will return to that situation later.  I should perhaps add for the sake of completeness that Mr Millar, on behalf of the husband, complained that the wife had failed to update her income from time to time with the husband until cross-examined about it.  This criticism, in my opinion, was and is unjustified.  The parties have been engaged in a continuing battle about child support and it seems difficult to imagine that there has not been information available to the husband about the wife’s income given the review process undertaken before the Child Support Agency.  Nevertheless, little turns upon this asserted non-disclosure on either side.  While the lack of detail from the husband arouses suspicion about his credibility, no substantive evidence was adduced which would contradict his broad assertions about the veracity of his financial resources or capacity. 

14. The parties were invited to examine the orders that had been operating for some time (recognising that each in effect, sought a mirror image of the other’s orders in substance) with a view to fine-tuning the pick-up and delivery arrangements or timing.  This invitation did not produce any consensus for change.  At the re-opened hearing the wife suggested that it would be preferable for the children to be dropped off at the husband’s home (now in Suburb I) at 8am and for the children be collected by him from school.  The husband, notwithstanding an invitation to reconsider the matter, persisted with seeking the orders as set out in Appendix A to these Reasons for Judgment with the hand-over at 6pm. 

15. The other matter which occupied a little time in the re-opening was the issue of superannuation.  It is fair to say that the earlier part of the trial was conducted on the basis that there was agreement about the value of superannuation.  Those values have to some extent been revised.  The most substantial part of the superannuation which is situated in the UK was that of the wife.  That is not a fund about which I can make a splitting order.  Indeed the husband’s revised Minute of Orders handed upon in Court on 9 May 2016 did not seek any order in relation to the English superannuation except, implicitly, in that it was to be taken into account in the total of superannuation value to be divided. 

16. The provisions of s 90MT(2) of the Family Law Act 1975 (the Act) in my opinion remove jurisdiction from this Court (or any Court exercising jurisdiction under the Act) to make a splitting order in relation to a superannuation fund which can be valued under the Regulations unless that value has been so ascertained.

17. Prior to the reopened hearing, neither party had sought to put before the Court evidence about the nature of the fund or to obtain on this reopening a revised calculation by an appropriate expert if the Regulations were applicable. I acknowledge that Mrs Northcote, on behalf of the husband, had raised this issue at the directions hearing in relation to the reopening and I further acknowledge that at that point I did not draw to her attention the provisions of s 90MT(2)(a) and it is common ground that there was no valuation of any of the superannuation before the Court in accordance with the Regulations. Notwithstanding the submission of Mr Millar that the common practice of the Court was in effect to accept that the parties agreement about valuation of superannuation, even if s 90MT(2) applied, in my opinion if the superannuation is capable of calculation under the Regulations the establishment of that valuation is necessary to provide jurisdiction to make a splitting order.

18. Mr Millar subsequently, on instructions from Mrs Northcote, asserted that none of the funds was capable of valuation under the Regulations.  He asserted that all were accumulation funds. 

19. In the course of her additional evidence the wife appeared to corroborate that proposition on the basis that the fund had a value which was identified but of course, fluctuating. On balance, I accept that I am not precluded from making a splitting order by reference to s 90MT(2)(a) and I further accept that in accordance with s 90MT(2)(b) the value of the various superannuation interests is as set out in the Updated Joint Table of Assets and Liabilities handed up in Court on 9 May 2016.

20. In the body of her affidavit the wife sought to adduce evidence about various tax penalties that would accrue if she sought to realise her UK superannuation and to transfer it to Australia in effect to satisfy any order that might be made about superannuation.  This information, which could not properly satisfy the requirements of the Evidence Act, was objected to by Mr Millar.  I could not, on the basis of paragraph 19 of the wife’s affidavit, make a determination about the state of the law (and neither party made any submissions about that to me on 9 May 2016) but it does raise at least inferentially, a doubt as to the net value of the funds in the UK so far as the wife is concerned.  However, neither she nor anyone else explored the possibility that she might, in due course when the option became available to her, utilise the funds in the UK - potentially without the risks which she asserted, but did not prove.  It was accepted by both parties that I had no power to make any order in rem about the UK fund.  It remains a question whether it would be just and equitable for me to make any order in relation to that fund except perhaps taking it into account as a financial resource of uncertain value.  I will return to this issue later.

The children

1. The orders each of the parties was seeking in the proceedings are annexed to this judgment at Appendix B and an examination of the orders sought reveals that the parties are in dispute (so far as the children are concerned) substantially on whether the children should spend nine (or eight) nights a fortnight with the father and the balance with their mother or that the children should spend nine (or eight) nights a fortnight with the mother and the balance with their father.  It is acknowledged by both parties that the time that the children spend with their mother is likely to involve at least, in part, supervision of them by their grandmother.  This is principally because the mother works long hours. 

2. The father is a qualified health professional.  He acquired that qualification during the time of the relationship with the assistance and support of the mother.  However, he seemed to me at least, not to be very interested in working and had at the time of the trial effectively given up full time work so that he could spend more time with the children.  He had also worked in the hospitality industry where he earned more money than he did from his profession.  The father’s argument at trial was that the children were better off spending time with a parent rather than with a grandparent and that accordingly they should spend most of their time with him. 

1. When the matter reopened the husband gave evidence that he had changed his residence from Suburb J (which it was at the time of the trial) to another residence in Suburb J after a year and then to rented property in Suburb I, Australian Capital Territory.  The rent for these last-mentioned premises was $800 per week. 

2. He gave evidence that he was conducting his business from one room in the new premises in Suburb I together with what is apparently a new business (for which he receives a Government grant) of personal training.  He maintained both in his affidavit and orally in cross-examination that he earns about $800 a week gross from these activities.  He also gave evidence that about a half of that sum goes in over-heads.  What he did not give evidence about was the amount of time that his employment required him to undertake.  He did give evidence that during the course of what apparently proved to be a relatively brief romantic relationship with a woman who was identified in the evidence only as “Ms K”, she did spend time with and look after the children on occasions when the children were spending time with him.  Whether this was at odds with his declared rational for the children spending more time with him then with their mother (as set out above) was not explored in cross-examination.  However, the absence of any evidence about any extra time he might have to spend with the children and his obvious willingness to use his partner as a child-carer would not lead me to put a great deal of faith in the genuineness of his rationale for the children’s spending more time with him. 

3. As might be observed, the detailed arrangements about the children are substantially agreed with the exception of the additional day (or days) that they might spend with one parent rather than the other. 

4. For example, the parents are agreed that the children should spend half their school holidays with each parent and there is agreement substantially about special days.  During the course of the reopening it became clear that both parents were agreed that one half of the holidays should be spent with either parent.  This would be (seemingly) an advantage to both parents as neither would appear to have substantial leave entitlements, although the mother is able to buy additional leave if necessary.  The half and half holiday arrangements do not appear to have been utilised by the husband to date – at least not regularly.  The parties both clarified in the course of the reopening that a week and week about arrangement should occur during the long or summer vacation although the wife expressed some willingness to be flexible about affording further time to the husband, if a similar concession might be made for her from time to time.  The default position should be as agreed between the parties, that is one half of the school holidays with the long holidays involving the children spending week about with each parent. 

5. Each of the parents acknowledges that the children love the other parent.  Each of the parents acknowledges (with far less reservation that is normally the case in matters before this Court) that the other parent is a good and competent parent. 

6. There were issues between the parents about the medical care of the children and their dietary requirements.  The resolution of those matters will not be forthcoming from a decision in favour of one or the other about an extra day or days with one parent rather than the other.  Neither parent offered any satisfactory way of resolving that conflict (although the mother seeks in her orders what amounts to a casting vote about medical and educational issues). Ascribing specific parental responsibility in relation to matters of health and education to one parent rather than the other seems a practical resolution of that issue.  It is to be noted that each of the parents sought that there should be equal shared parental responsibility.  I will accede to that request from each of them but qualify that as the mother suggests as she will on my orders have slightly more time with the children.  I am satisfied also that her approach to diet is likely to be consistent with the wishes of the children however those wishes may have come about and unlikely to impose any risk to the children’s health.  In education issues, it is probable that the mother will be the primary financial support for the children’s education and in my opinion should therefore have more say in how that expenditure is made.

7. Ms G, the Family Consultant, commented the children were apparently coping quite well, all things considered, with the arrangements between their parents including the involvement of their maternal grandmother.  Each of the children expressed their love for each of their parents and the two older children expressed a preference for their father’s house.  Ms G commented upon their age and maturity and did not ascribe any particular force to be given to that expression of opinion so far as it might be considered to be a view of a child about where he or she might live.  So far as I am aware since the end of the trial neither parent has sought to vary the existing interim orders. 

8. The Family Law Act 1975 requires that I should apply a presumption that the parents should have equal shared parental responsibility. That is a matter of substantial agreement in this matter. If I am to make such an order then it is necessary for me to consider whether the children should spend equal shared time with the parents and, if that would not be in the children’s best interests or would be impracticable, to consider whether the children should spend substantial and significant time with each parent as those terms are defined in the Act.[2]

   [2] Section 65DAA (2)

9. In this case, on the basis of either of the parents’ proposals, the children will be spending substantial and significant time with the other parent. 

10. The Act requires that in making any order about the children I should regard as my paramount consideration what would be in the best interests of the children. 

11. The determination of those best interests is guided by the terms of s 60CC of the Act which provides that there are two primary considerations (one of which is to have precedence over the other) and a number of additional considerations.

12. All of these matters were considered by the Family Consultant in her straightforward, effective and helpful report. 

13. Greater weight is to be given to the need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.  This was not an issue in this matter and it has not been suggested that it should, in any way, affect my decision.  There was some suggestion on behalf of the mother that the father’s disciplinary methods were harsher then she approved of, but she sought no particular orders about this nor raised it primarily as an issue before me.  I could not make a finding on the evidence before me that the father had exposed or subjected, the children to any degree of family violence or to psychological harm. 

14. The second of the primary considerations is the benefit to the children in having a meaningful relationship with both of the children’s parents.  Again this was not an issue before me.  Each parent praised the other (admittedly with some qualifications).  Neither parent wanted to suggest that the children should not derive benefit from a relationship with the other parent.  The arrangements prescribed by each of them (and as affirmed by the Family Consultant) will ensure the continuation of the relationship between the children and each of their parents and for that matter with each of the extended families on either side. 

15. There would have been certain symmetry in the parents having equal time or perhaps more precisely that the children should spend week and week about with each of the parents.  This was not a suggestion that either parent wished to adopt, although the suggestion was made by me during the course of the proceedings.  Sadly, notwithstanding the regard in which each of the parents apparently held the other they had still managed to be in dispute about many things and a higher degree of cooperation would be required for the children to spend equal time with each parent.  That having been said, it is difficult to see how the arrangements either proposes would in any way alleviate that situation particularly in circumstances where each of them has equal shared parental responsibility with the other. 

16. Among the additional considerations I draw attention to the following matters. 

17. I have already discussed the views that the children have expressed.  I believe that the father has persuaded himself (but not necessarily me) that the children want to spend more time with him.  This appears to be in part corroborated by his mother.  For the reasons expressed by the Family Consultant I do not accept that those reasons should carry the day.  The children would like to spend time with each of their parents, would benefit from spending time with each of their parents and will spend time with each of their parents. 

18. Each of the parents reports, and the Family Consultant confirms, that the children have a good relationship with each of the parents and with each of their relevant grandparents.  Nothing more in the circumstances needs to be added to that.

19. Each of the parents has done what was required at different points in the relationship between them and the children to take the opportunity to participate in making decisions about the children; to spend time with them; and to communicate with the children.  There is some dispute between them as to the predominance of the father’s involvement with the children at, and preceding, the time of separation.  To the extent that it might be said, as the father asserts, that he was the primary parent at the time of separation, this was because the arrangements between the parents permitted this to be so.  It is a matter of commendation of the parties that they were able to reach arrangements which ensured that the children had the benefit both of a primary earning parent and a particular caring parent at varying times.  I note that the mother had the view the father was not as engaged as he should have been on behalf of the children.  In my opinion it is likely that each of the parents was looking back on that time with a degree of partiality which affects his or her judgment of the other.  

20. This is not a case where either parent has in any way shirked his or her responsibility for the children even when this has involved considerable personal effort. 

21. The maternal grandmother has been a significantly helpful part of the arrangements about the children and it is commendable that her role is acknowledged and will continue in some respects. 

22. The primary financial care of the children has always been the responsibility of the mother.  It was reflected in the Family Report that she was paying $960[3] a month in child support.  It appeared to be part of her complaint that the husband was not applying himself towards his work and to the generation of funds to contribute for the support of the children as well.  It would be fair to say, that I formed the impression that the husband was not overwhelmingly enthusiastic about pursuing remunerated employment of one sort or another.   

    [3] At present $308 per fortnight

23. It is likely, in my opinion, that the mother will continue to be the primary financial resource and support for the children.  I do note in passing (and will deal with in more detail in the property section of this judgment) that the children have been the beneficiaries of some contributions from the father’s family. 

24. The Family Consultant was of the opinion, and I concur, that whichever sets of orders might be adopted the changes in the children’s circumstances would be unlikely to have any significant effect upon them.

25. I am unable, on the basis of the evidence I have at the moment to determine whether there are at present any difficulties or particular expenses associated with the time the children were spending with each of their parents.  I am comforted by the fact that neither parent has made any application to vary the interim orders which have now been applicable for some time.  That would suggest that there has been at least toleration, if not a comfort, with the orders as they presently exist. 

26. I suspect each of the parents, if asked, would indicate that he or she thought that he or she had a better capacity to provide for the needs of the children “including emotional and intellectual needs”.[4]  For the purposes of any order I might make in these proceedings each of them has that capacity.  However, I was impressed that the mother had both given thought to and had done everything within the more restricted opportunities that she had, to provide for those needs of the children.  This is not to say that the father does not care for the children.  I am sure that he does.  I however, formed the impression that the mother was a better organised person and a better organiser. 

    [4] Section 60CC(3)(f)

27. There were no cultural issues which either parent raised as being important or significant in making any determination about the children.  It would appear that each of the parents comes from a European background but neither has sought any order specifically directed to those sorts of cultural or traditional issues. 

28. Each of the parents has demonstrated in my opinion a responsible attitude to parenting.  Each has criticisms of the other.  Each would suggest that he or she has superior qualities in this regard.  However, none of the concerns or reservations that each has, bears substantially on the decision that I am obliged to make. 

29. I have already commented about the fact that this is a matter happily free from family violence. 

30. I am also obliged to consider whether it would be “preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the child”[5] I am hopeful that the parents will in the future, have reached a point where they feel that they are able to be more flexible in their dealings with each other about the children. Such an arrangement would unquestionably be for the benefit of the children. I have noted that the parents have not been able to agree (mainly through a lack of communication particularly by the father - apparently because he says his solicitors instructed him not to do so) to agree about some of the extra-curricular activities. It will be for the benefit of the children if their parents are able to cooperate about these matters in the future. Given the fairly prescriptive form of the orders that each is seeking, it would seem unlikely that those orders or arrangements would continue without variation until the children turn 18. That however, might be said about almost any orders made in relation to children under the Act. Providing less prescriptive orders at this point would in my opinion be more likely to lead to further litigation than otherwise. I would hope that the parents would arrive at the conclusion that less prescription and more flexibility will be the order of the day in the future.

    [5] Section 60CC(3)(l)

31. Taking account of all those factors I can find no reason to significantly vary the existing arrangements for the children.  I am sure that when the parents’ circumstances change in the future, they will find a need to adjust the arrangements in ways that enable the children to have the maximum benefit of each of the parents.  I cannot make those predictions on the basis of the evidence before me at the trial.  

32. I considered making orders that the children spend week and week about with each parent.  While the symmetry of such orders is appealing, there is little to commend it on the basis of the considerations set out above.  Moreover, neither parent wanted that. 

33. I note that the arrangements for the children during the holidays, which were not the subject of the orders of Judge Henderson, are substantially agreed.  The mother accepted the definition set out in Order 3 of the respondent’s Minutes of Orders Sought.  Accordingly I will incorporate those matters into the orders.  I have effected a minor amendment to provide that years ending in an even number include years ending in the number 0.

34. I have also considered the recommendation from the Family Consultant that perhaps “the situation could remain as it stands with possibly an extra day for the father”.[6]  With great respect to Ms G I cannot find any reasonable basis for that recommendation given the terms of the report.  I suspect it reflects her desire to acknowledge what the children had said to her about the time that they spend with their father.  However the provision of the extra day does not seem to me to affect in any significant way the relationship the children will have with each of their parents and in my opinion the benefit of the continuity of the existing orders particularly in circumstances when no one has sought to change them and where each of the parents seeks but little variation in any event is not apparent. 

    [6] [19] Family Report dated 18 February 2014

35. I should make it clear that I do not suggest that simply because there has been a lengthy period since the trial before this judgment that either parent should have been coming back to Court regularly seeking alternative orders.  They were entitled to believe that judgment would be handed down sooner than this in which case such an application would have been an unnecessary expenditure of funds.  However, given the nature of the orders sought (as I said above) and the absence of any expressed disagreement about the sorts of orders that were in place (saving of course the involvement of the maternal grandmother) I believe that I am justified in expressing the opinion I have above. 

36. Nothing however, can or should prevent the parents from reaching other arrangements if as a result of an improvement in their personal relationships, they believe they can now accommodate. 

Property

1. Turning to the question of property again there is little difference in the form of the orders sought by each of the parties.  Each of them acknowledges that the house in Suburb F, which was the former family home, should remain with the mother.  Each is agreed that there should be a financial adjustment in favour of the father.  Each is agreed that there should be a division of chattels.  A dinner set was a contentious item which I do not know has yet been resolved. 

2. There was some initial contention about the delay in the father’s moving out of the property which resulted in an interlocutory application made shortly after the trial but before the delivery of judgment.  My understanding is that he has vacated the property and that the mother has been living there primarily with the children since.  It is fair to say that neither parent at the time of the trial (and since on invitation to reopen) provided detailed financial information about what either he or she would be able to raise by way of capital for accommodation or to refinance the mortgage or to pay out the other party. 

3. The husband’s argument was that he should receive 70 per cent of the property of the parties and the wife suggested she should receive 60 per cent and the husband 40 per cent.  In the circumstances I have come to a different conclusion from either of the parties about the quantum of the adjusting amount (at least in percentage terms) for reasons that I will set out hereafter.  I have no specific information about whether the mother is able to raise the money necessary to pay out what would be required under such orders to the father. 

4. I propose however in the orders to provide that if the mother is unable to pay the father the nominated amount within sixty days, that the parties will then cooperate in the sale of the Suburb F property with liberty to apply about the terms of the sale.  I have a degree of confidence however that the mother will be able to buy out the father therefore the details associated with such a sale and in particular the division of the proceeds will be obviated. 

The assets and liabilities of the parties

1. The table attached at Appendix C reflects the substantial agreement of the parties about their assets at the time of the trial (revised statement Appendix D).  It is to be noted that part of the assets of the husband is his loan account with the Granville Family Trust Fund.  It appears that sum has not increased or decreased since that time.  Whatever may have become of those funds, nothing that the wife has done has either contributed to or detracted from the husband’s entitlements. 

2. The mortgage has also been reduced since separation from $496,108 to $473,749.  The wife has asserted[7] that of the 36 months since separation the husband occupied the house for a period of 15 months and further two months involved the house being vacant owing to the husband’s assertion that he could come and go as he pleased.  That suggests that each of the parties has had approximately the same time of benefit of occupation of the house.  Accordingly, I make no adjustment for the benefit the wife has derived from her recent occupation of the premises. 

   [7] [14] affidavit filed 6 May 2016

3. Nevertheless, the whole of the repayments in respect of the house had been made since separation by the wife.  She asserted without contradiction[8] that she has paid $73,253.14 in interest payments alone.  The loan has reduced in value (that is principal) by $22,359.  The effect of those figures is that the wife has made a substantial contribution to maintain the asset of the parties which has increased in value by some $125,000 since trial and the mortgage since separation has decreased by $22,359.  That is, the wife’s financial contribution during this period (not counter-balanced by her occupation in line with what I have suggested above) has been in excess of $73,000 to increase the asset by approximately $147,000.  That of course does not take account of the rates.

   [8] [13] affidavit filed 6 May 2016

4. There were a number of matters in dispute which need to be addressed specifically.  One is the debt owed to Company L.  At the time of addresses (submissions) in this matter it appears that the debt was $11,113.[9]  I agree with Mr Millar’s submissions on behalf of the husband in this matter that this is a joint debt and that the money in relation to work perhaps unsatisfactorily carried out has enured for the benefit of the wife who retains the house. 

   [9] See transcript 11 July 2014 p 286 ll 40-41

5. However, when this matter was reopened it was agreed by both sides that the debt should now be disregarded.  There is no agreement about the fact that the heating system works.  Both parties are agreed that it appears that the creditor has abandoned the claim and that if the company should return to its claim within the limitation period there would be a substantial dispute about whether or not the product had been correctly supplied.  It is therefore eliminated from the list of assets and liabilities.    

6. It is also common ground that the husband’s parents provided funds of $15,800 for the children and that this money was effectively applied by the parties to reduce the mortgage.  It was a sensible financial decision but the appropriate way of reflecting the nature of the funds (as appeared during the exchanges between me and Counsel during submissions) is that a separate trust fund should be created for the children.  As the amount of the mortgage has been reduced by this amount it would be fair that each of the parties provides one half of the sum necessary for the creation of the trust fund.  Both parents are agreed that they should each be the trustee of the trust fund and each, for reasons beyond my comprehension, has declined to accept from me an invitation to construct a trust deed which could be incorporated into these orders which would permit the application of those funds for educational purposes.  That is a matter ultimately, for them.  I will make an order in accordance with Order 25 in the Minutes of Orders Sought by the Husband. 

7. As might be expected, and as was commented previously there have been some changes to the figures provided by the husband but not disputed by the wife as to the various sums standing to the credit of each of the parties in different superannuation funds.  For the sake of convenience I set out those values hereafter at Appendix E.

8. Here again the parties were substantially agreed about what should happen.  Somewhat curiously the husband sought that the superannuation entitlements of the parties should be adjusted so that the wife had 55 per cent and he had 45 per cent. 

9. Neither party alluded in their calculations or concessions to the complications arising about the UK fund.  The husband somewhat simplistically suggests that the amount should simply be added into the pool and adjustments made accordingly.  The wife failed to provide adequate evidence about the tax or other discounting implications that would occur from the repatriation of those funds to Australia.  Neither party gave consideration to whether the sum might be utilised in some way in the future in the UK.  Each party agrees that I cannot make an order specifically directed to that fund. 

10. In my opinion, the most appropriate way of dealing with these matters is to set to one side, for the purposes of my dealing with the parties’ superannuation, the fund in the UK, recognising that this removes a very substantial sum from the total pool of superannuation as set out in the list of assets and liabilities annexed to these reasons.  I note in passing that the fund in England has apparently increased substantially in value since trial, although that may have been because of some discount for the purposes of agreement at the time of trial.  I have no information or evidence that would enable me to reach any conclusion about that.  It does seem unlikely however that in the relatively short period since trial and the reopening that the fund has almost doubled in value. 

11. Of the funds remaining in Australia the wife asserts, without cross-examination or contradiction that the funds contributed to the AMP were contributed pre-relationship and any increase in the value of those funds (some $3,000) is attributable to natural growth rather than any further contribution from her.  Even if I were to assume that the balance of funds in Australia were contributed during the course of the relationship and therefore might properly have an indirect contribution from the husband, there is no doubt that the wife contributed more financially to her two superannuation funds and certainly should be given additional credit for the AMP funds because it was pre-relationship. 

12. The husband’s relatively small fund has been generated through his family but is properly to be regarded as being contributed to by contributions made by him or on his behalf.  In my opinion, the appropriate resolution of the superannuation issue is for the existing Australian funds to be treated on the submissions of counsel as accumulation funds and divided as to 45 per cent to the husband and 55 per cent to the wife.  This means that there should be an adjustment in favour of the husband from the wife of $66,730.95 less his own superannuation of $17,748 – a sum therefor of $48,983.  That sum should be achieved by a split of the PSS funds. 

13. The UK funds, to the extent they exist, should be treated as a resource in the wife’s hands and taken into account generally under s 75(2) of the Family Law Act 1975 in relation to the division of the other property. 

General Principles

1. Taking account of those matters I am conscious of the fact that under the Family Law Act 1975 the requirement for the division of property is that

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.[10] 

   [10] Section 79(2)

2. This section was the subject of considerable attention by the Full Court of the High Court of Australia in Stanford v Stanford.[11]  In this matter each of the parties is seeking that the property of the parties should be adjusted in some way.  That in itself, in accordance with their Honours’ opinions in Stanford, would make it just and equitable for me to make an order.

   [11] [2012] HCA 52

3. Notwithstanding that determination however, the nature of the adjustment I propose to make is relatively minor.  In some cases, I would take the view, justice and equity would not require any particular adjustment.  Nevertheless, the amounts are important to the parties.  Each of them seeks a change and in my opinion, it is just and equitable for me to make orders changing the entitlements of the parties to property. 

4. I have already indicated that I accept that superannuation in Australia should be divided as to 45 per cent to the husband and 55 per cent to the wife. 

Contributions

1. So far as the non-superannuation property is concerned I must look first at the contributions each of the parties made. 

2. It is uncontroversial that at the time that the parties began their relationship the mother owned a house in Suburb M in the Australian Capital Territory in which the parties subsequently lived when they returned from the UK.  That property was substantially renovated and improved with the effort of both parties and the money primarily from the mother.  It increased in value significantly and was the spring-board for the parties’ ability to acquire the Suburb F property, which is the substantial asset of the parties. 

3. It was equally uncontroversial that at the time of the parties’ relationship the mother had some savings.  Where they went to is not entirely clear on the evidence but there is no suggestion that it was in any way the subject of waste on the part of the mother or frittered away in some insignificant form.  I accept that was a contribution on her part.  I further accept that the mother’s contributions to superannuation at the beginning of their relationship did exist.  For all practical purposes the father had very little indeed.  He had about $5,000 in superannuation and some further shares that eventually were sold and invested back into the family.  There is some argument about money that the father paid into his brother’s building firm but I am unable on the evidence to make any determination about the nature of those contributions and in particular I accept the submissions made by Mr Millar that it is not reasonable to expect parties to identify relatively small sums over quite long periods of expenditure before the parties separated.  I accept that that cannot be a universal requirement or rule but in this case it seems on the evidence it is a reasonable submission to make.[12] 

   [12] Outline of submission (by counsel for the father) [11]

4. Possibly the largest area of contention related to money paid by the husband’s parents between 2005 and 2012.  In her spreadsheet in annexure C to her affidavit the wife described contributions from the husband’s parents as being $155,270.  The husband claims that the amount was $257,000 between 4 October 2005 and 26 June 2012.[13]  Counsel for the husband was highly critical of the mother’s not conceding that these were contributions.  It is quite difficult to determine precisely how much money was involved in the transfer from the husband’s parents to the parties or to the husband.  It is common ground that cheques were made out to the husband but paid into an account that was substantially operated on by the wife.  The husband claimed initially in his affidavit that they were gifts to him.  However in his oral evidence he unequivocally maintained they were gifts to both parties. 

   [13] See submissions referred to above [12]

5. The situation would appear to be that the wife concedes that a substantial amount was in fact given to the husband.  The husband maintained in his affidavit that the more substantial amount was given to him.  The husband maintained in his oral evidence unequivocally and unambiguously that the money was given to both of them. 

6. The complication from an evidentiary point of view is that ordinarily the money would be presumed that a gift which emanated from the family of one of the parties to a marriage was a gift made by or on behalf of that party.  I have said “ordinarily” because there are a number of potential variations to that arrangement.  If a parent in-law makes it clear that the beneficiary of a gift is his or her daughter-in-law or son-in-law then it would be wrong to apply the presumption.  If on the other hand, there is no explanation or specificity as to whom the gift is directed, it is reasonable to see that the gift is made to the child not to the child-in-law.  In this case it would have been a lot easier if the father’s father had given evidence about the arrangements involved.  He did not file an affidavit and was not called to give evidence even when the issue became apparent.  No attempt was made to lead any additional evidence from him in the reopening although this issue was explored at some length with counsel for the father during the course of prior submissions.  Accordingly, it would be reasonable to conclude that the decision not to call Mr Granville senior was deliberate.  The inference that might ordinarily be drawn from such a decision is that his evidence would not have assisted the husband.  The interesting question, of course, in this matter, is “assisted the husband” in which way?  Would it assist his evidence by way of affidavit or his (contradictory) evidence orally or was it something else altogether?

7. If I were to accept that this was a contribution made by or on behalf of the father, in straight dollar amounts the initial contributions of the mother as developed and exemplified and realised through the Suburb M house (with acknowledged contributions physically and otherwise from the husband) and the contributions made by or on behalf of the father from his family would be relatively similar.  If on the other hand I were to accept that the gifts were made to both parties then the wife’s contribution would obviously be substantially greater. 

8. There is no doubt that generally the wife has been the principal financial contributor to the relationship and to the acquisition of the assets of the parties.  I have commented on the husband’s lack of application to this matter earlier in this judgment.  There is some dispute about the contributions that each of the parties made to the marriage or the welfare of the family in the capacity of home-maker or parent.  I do not accept the submissions on behalf of the father that he was the primary home-maker and parent.  I accept that he did a lot.  I accept that the mother also did a lot - as well as working.  I do however accept substantially, the submissions made by Mr Millar, on behalf of the father, that it is not for this Court necessarily to inject a subjective comparison of the quality of contributions during the course of the marriage when the parties themselves have arrived at arrangement as to how the various tasks associated with the marriage and the family are to be divided. 

9. I accept also that the parties had the benefit of some accommodation from the father’s parents for a period during the course of their relationship. 

10. However, the analysis of these matters by Mr Millar does not have my support.  Because of the confused and to some extent confusing evidence of the husband about the contributions from his family, while I note that they were of benefit to both the parties, I am not prepared to give them the weight that Mr Millar suggests that they should have.  Nor for that matter, am I prepared to accept the mother’s submissions that her contributions during the relationship so clearly outweighed the husband’s that she should be regarded as having made a substantially greater contribution then he did. 

11. There is also the matter of contributions made by the mother post separation to the maintenance of the family home.  I have already indicated that I regard the wife’s maintaining of this, the most significant asset of the parties, since separation as being a substantial contribution.  The amount involved is quite substantial.  The increase in the value of the asset as a consequence of her maintaining it has been significant.  The husband derives benefit from that increase in value.  To the extent that she has effected improvements to the property since separation, these do not appear to have been taken into account in the valuation and are probably best regarded as enhancing the wife’s quality of life and she will retain the benefit of these improvements in any event as it appears likely that she will keep the property. 

12. I am very conscious of the fact that in comparing initial contributions or pre-relationship contributions with contributions made during the marriage in various forms both financial and physical and as home-maker and parent, it is difficult, if not impossible, to compare like with like. 

13. Taking all of those matters into account and analysing the situation as best I might, I determine that the contributions made by the parties in total should be ascribed as being 55 per cent by the wife and 45 per cent by the father. 

14. Where there are substantial numbers of properties in one name or the other it is sometimes highly artificial to reflect on the contributions of the parties in percentage terms.  It has been the habit of this Court to do so for many years, and in this case, I think it is probably a reasonable reflection of the way in which the division of property should be considered. 

Section 75(2) factors

1. The Act requires that I should take account of other financial circumstances of the parties in accordance with s 79(4)(e) which incorporates matters referred to in s 75(2) so far as they are relevant.

2. In this matter the parties are agreed that the children will spend significant time with each of the parents.  The children will spend slightly more time as a result of my orders with the mother than with the father.  This however is not of such significance that it could be said that there must be an added burden on the mother by comparison with the father about the care of the children for the next ten years or thereabouts. 

3. I acknowledge that the form of the orders means that the mother will have more responsibility than the father and that this should be reflected in some way although not significantly in factors to be taken into account under s 75(2).

4. It is acknowledged on both sides that the mother earns more than the father and will continue to do so.  The father was not deceptively but significantly vague about his future and what he might or might not earn and what sort of time would be involved in his doing so.

5. The assumption is that the mother will go from strength to strength and will earn a reasonable, if not substantial, income into the future.  It was suggested by counsel for the father that his client would struggle to find appropriate accommodation for himself and for the children when they are with him.  I have little enthusiasm for this submission if for no other reason than, at no point was any further evidence suggested as being available to provide an insight into the father’s future plans. 

6. Equally vague is the assistance he might receive by way of the Granville Family Trust Fund.  It is significant that the parties agreed that there was an asset which was at that point the father’s loan account.  That was appropriately an acknowledgment of a legal entitlement or perhaps a vested entitlement.  It was not made clear, nor were submissions made about, the potential benefit the husband may receive from that trust in the future.  It was common ground that the Company N was a substantial enterprise and it is not clear whether or if the husband will have any benefit from the family business or the family trust in the future.  I draw no inference one way or the other except to note that when his entitlement to funds in the trust are declared and acknowledged and agreed it is reasonable for me to take into account at least in the broadest sense the fact that he has an existing entitlement and may and probably will continue to have an entitlement in the future. 

1. I also take account under s 75(2)(na) the substantial child support paid by the mother notwithstanding the shared arrangement of the care of the children between the parties.

2. As suggested above, I also take into account the wife’s entitlement to superannuation funds in the UK. 

3. If I take all of those matters into account and again acknowledging that it is difficult to make comparisons where the various elements are not directly comparable it seems to me that I should make no adjustment in favour of either party by reference to s 75(2).

4. It seems to me that the financial contribution by child support that the mother makes towards the children substantially neutralises the difference in income between the parties and when I take account of their shared responsibility for the children it is difficult to see what reasonable adjustment might be made in favour of the father under these provisions (or for that matter for the mother).

5. Accordingly, in my opinion the property of the parties as agreed between them and set out in the schedule at Appendix C should be divided between them on the basis of 55 per cent to the mother and 45 per cent to the father.  This will involve her payment to him of a sum of $300,000.

6. This comes about as follows:

   The net value of the pool ((excluding equal funds taken [$7,000 each] = $1,296,040-4$73,749 = $822,291

   45 per cent of that is $370,030.95

   less Granville Trust ($52890), less his car ($18,150 = $298,990.05

   (Which I round up to $300,000). 

7. Orders will also be made for the division of their superannuation to reflect that the husband has 45 per cent of the total superannuation entitlements of the parties in Australia.  That will involve a splitting order in his favour of the wife’s PSSap for an amount of $48,983 (45 per cent = $66,730 less his superannuation $17,748 = $48,983).  It was agreed that the trustee of the fund had not been given procedural fairness about this order and it was suggested that I should cause the orders to come into effect 28 days after the date on which judgment is delivered or such earlier time as the relevant trustee agreed that they should. I accept that submission.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 19 May 2016.

Associate: 

Date:  19 May 2016

APPENDIX A

Orders made 26 July 2013 by Judge Henderson
…

7.  The parents shall have equal shared parental responsibility for the children [B] born … 2008; [C] born … 2007; and [D] born … 2011.

8.  The children shall live with the father:

a.Commencing 31 July 2013 from 8am Wednesday to 6pm Friday and continuing each alternate week thereafter.

b.Commencing 8 August 2013 from 8am Thursday to 6pm Sunday and continuing each alternate week thereafter.

9.  The children shall live with the mother at all other times.

10.Each party may leave the children in the care of their grandparents or in after school care provided they notify the other parent as soon as possible of the location of the children when not in the parent’s care.

…

APPENDIX B

MINUTE OF ORDERS SOUGHT BY APPLICANT WIFE

Children

1. That the parents have equal shared parental responsibility for the children [B] born … 2008, [C] born … 2007 and [D] born … 2011 ("the children"), save that the mother have sole parental responsibility for medical and educational decisions relating to the children.

2. That the children live with their mother

3. That the children spend time with their father as follows:

a.In week one, from 8am Wednesday to 6pm Friday and continuing each alternate week thereafter;

b.In week two, from 8am Thursday to 6pm Sunday and continuing each alternate week thereafter;

c.For one half of each school term holiday period being the first half in odd-numbered years, the second half in even-numbered years;

d.During the 2014/15 Christmas school holiday period on a week-about basis commencing with the first week with the mother and alternating thereafter;

e.During the 2015/16 Christmas school holiday period on a two week/two week/one week/one week basis commencing with the father; and

f.Thereafter, for one half of Christmas school holiday periods commencing with the father in 2016/17 and alternating thereafter.

1. That notwithstanding the above, the children will spend from 9am to 5pm on Mother's Day with their mother and Father's Day with their father.

2. That the children attend the O School until the end of Year 2 and from Year 3 to Year 6 the [Suburb I] Primary School.

Property

1. That within 42 days of the date of these Orders the wife pay to the husband the sum of $194,000 ("the Payment").

2. That at the time of the Payment:

a.The parties do all acts and things and sign all documents necessary for the husband to transfer to the wife at the wife's expense all his right, title and interest in the property at [E Street, Suburb F] in the Australian Capital Territory, more particularly described as Block … Section … in the Division of [Suburb F] ("the [Suburb F] property");

b.The parties do all acts and things and sign all documents necessary for the wife to discharge at her expense the joint mortgage to the Commonwealth Bank secured over the [Suburb F] property, being dealing number …;

c.The wife indemnify the husband and forever thereafter keep the husband indemnified against all liability in relation to the [Suburb F] property including but not limited to mortgage repayments, taxes and outgoings of whatsoever nature and kind; and

d.The husband vacate the [Suburb F] property.

1. That superannuation entitlements accumulated over the period of the relationship be equalised.

2. That unless otherwise specified in these Orders:

a.Each party be solely entitled to the exclusion of the other to all property in their possession as at the date of these Orders;

b.Money standing to the credit of the parties in any bank account is to be the property of the party in whose name such bank account is held;

c.Each party hereby foregoes any claim they have to any other superannuation benefit to or owned by the other;

d.Insurance policies remain the sole property of the beneficiary named therein; and

e.Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders, or otherwise. 

MINUTE OF ORDERS SOUGHT BY RESPONDENT HUSBAND

Children’s Orders:

1. That the parents have equal shared parental responsibility for the children:

a.[C], born … 2007;

b.[B], born …; and

c.[D], born … 2011.

1. That the children spend time with their parents as follows:

a.Pending the child [D] commencing primary school, during school terms as follows:

i.With the mother from 6pm Wednesday to 6pm Friday and every alternate week thereafter;

ii.With the mother from 6pm Thursday until commencement of school Monday and every alternate week thereafter (the mother to deliver [D] to the father after delivering the older children to school);

iii.With the father at all other times.

b.During school holidays as follows:

i.With the mother for the first half of all school holiday periods commencing in years ending in an odd number and with the father for the first half of all school holiday periods commencing in years ending in an even number; and

ii.With the mother for the second half of all school holidays periods commencing in years ending in an even number and with the father for the second half of all school holiday periods ending in an odd number;

save that for the Christmas school holidays the parties shall share the children on a week about basis; and

c.From the time the child [D] commences primary school, during school terms as follows:

i.With the mother from 6pm Wednesday to 6pm Friday and every alternate week thereafter;

ii.With the mother from 6pm Thursday until commencement of school Monday and every alternate week thereafter (the mother to deliver [D] to the father after delivering the older children to school);

iii.With the father at all other times.

d.During school holidays as follows:

i.With the mother for the first half of all school holiday periods commencing in years ending in an odd number and with the father for the first half of all school holiday periods commencing in years ending in an even number; and

ii.With the mother for the second half of all school holidays periods commencing in years ending in an even number and with the father for the second half of all school holiday periods ending in an odd number.

e.Such further or other times as the parties may agree.

1. That for the purposes of defining school holidays, in the absence of any written agreement between the parties to the contrary, the following Orders apply:

a.The first half of school holidays is deemed to commence at the end of classes on the last day of school;

b.The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year; and

c.The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or at 5pm on the middle Wednesday of the school holidays if the relevant school holiday period is for an odd number of weeks;

d.One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2.  If the number of days are not even, the Father is to have the extra day in even years and the Mother is to have the extra day in odd years.

1. Each of the parents do all things necessary to facilitate the children having unrestricted telephone communication with the non-resident parent.

2. That notwithstanding these Orders the children live with their mother from 9am until 5pm each Mother’s Day and with their father from 9am until 5pm each Father’s day.

3. That notwithstanding these Orders, if the mother’s birthday or the father’s birthday falls on a day when the children would otherwise be living with the other parent, the following Orders apply:

a.That if the mother’s or father’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;

b.That if the mother’s birthday or father’s birthday falls on a weekend each of the parties take all reasonable steps to ensure that the children spend time with the parent having the birthday from 9am until 5pm on the birthday.

1. That notwithstanding these Orders and unless otherwise agreed, on the children’s birthdays each year the parent with whom the children are living make them available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5pm until 7pm.

2. That notwithstanding these Orders and unless otherwise agreed and in the event Easter does not fall during school holidays, the children spend time with their Father from after school on Holy Thursday (before Easter) until before school on the following Tuesday in years ending in an even number.

3. That notwithstanding these Orders and unless otherwise agreed and in the event Easter does not fall during school holidays, the children spend time with their Mother from after school on Holy Thursday (before Easter) until before school on the following Tuesday in years ending in an odd number.

4. That notwithstanding these Orders and unless otherwise agreed, the children spend time with their parents over Christmas as follows:

a.With their Father from midday on Christmas Eve until midday on Christmas Day and with the Mother from midday on Christmas Day until midday on Boxing Day in years ending in an odd number; and

b.With their Mother from midday on Christmas Eve until midday on Christmas Day and with the Father from midday on Christmas Day until midday on Boxing Day in years ending in an even number; and

1. For the purposes of changeover during the school holidays, the parent about to have the children shall collect from the other parent.

2. That [C] attend [P] School from the commencement of the 2015 school year.

Property Orders:

1. That the Wife pay to the Husband the sum of $395,252 (“the Payment”) within 42 days from the date of these Orders, (“the Due Date”).

2. That at the time of Payment:

a.The Husband do all things necessary to transfer to the Wife at the expense of the Wife all of his interest in the property contained in Certificate of Title Volume … Folio … Block … Section … Division of [Suburb F] known as [E Street, Suburb F] (“the Property”).

b.The Wife Husband [sic] do all things necessary to repay to Commonwealth Bank the amount outstanding on the Due Date for loan account number … in the names of the Husband and the Wife to discharge mortgage registration number … securing the Property (“the Mortgage”).

1. That from the date of the Payment the Wife indemnify the Husband against all rates and land tax (if any) with respect to the Property.

2. That if the whole of the Payment has not been made by the Due Date, the Wife, in addition to the Payment, pay to the Husband interest on the Payment or the amount outstanding from time to time at the rate prescribed by the Family Law Rules to be calculated from the Due Date to the date of Payment.

3. That up to the date of the Payment or completion of the sale in Order 18 as the case may be:

a.The Husband have the sole right to occupy the Property;

b.The Wife pay the loan repayments for the debts secured by the Mortgage, house insurance, rates and land tax (if any) with respect to the Property; and

c.Neither party shall mortgage or otherwise offer the Property for security other than for the purposes of compliance with Order 13.

1. That in the event that payment is not made by the due date then the Husband and Wife do all things necessary to effect the sale of the Property.

2. That the Husband and Wife do all things necessary to cause the proceeds of the sale of the Property to be distributed as follows:

a.To pay all costs, commissions and expenses of the sale.

b.To pay the usual rates adjustments.

c.To pay the amount required to repay the loans secured by the Mortgage and to discharge the Mortgage.

d.To pay:

i.$395,252 to the Husband together with interest pursuant to Order 16;

ii.the balance to the Wife.

1. That liberty be reserved to either party to apply to the Court on seven days’ notice to the other with respect to the terms and conditions of the sale.

2. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.

3. That save for the following items which are agreed to be fixtures on in the Property, the Wife transfers to the Husband all of her right title and interest in the goods, chattels, furniture, fittings and effects located in or around the Property:

a.All light fittings;

b.All plumbing fittings;

c.Ceiling fans in all rooms;

d.Built in music system;

e.Curtains in main bedroom;

f.Stove in kitchen;

g.Dishwasher;

h.All garden plants and trees;

1. Brass house numbers;

j.Lion water sprout for fixed water feature;

k.Water feature at front door;

l.Water tanks;

m.Security system;

n.Garden shed; and

o.Water tank.

1. That from the date of these Orders the Husband be solely liable for and indemnify the Wife against all payments and liability with respect to the debt to [Company L] (noting that the debt is currently $7,000).

2. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders. 

3. That within seven (7) days of the date of these Orders, the Husband and Wife do all acts and things and sign all necessary documents to cause the sum of $15,800 to be withdrawn from the home loan account number … to be held by the Husband on trust for the three children of the parties and the Husband be restrained from dealing with that sum in any way without the written consent of the Wife. 

Superannuation Orders:
PSSap

1. That in accordance with Section 90MT(4) of the Family Law Act 1975, a base amount of $59,000 is allocated to [Mr Granville] out of [Ms Blakeslee’s] interest in the PSSap Superannuation Fund.

2. That, in accordance with Section 90MT(1)(a) of the Family Law Act 1975:

a.[Mr Granville] (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

b.The entitlement of [Ms Blakeslee] in the PSSap Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of [Ms Blakeslee’s] superannuation interest) is correspondingly reduced by force of this Order; and

c.That this Order has effect from the operative time and the operative time is 1 January 2014.

1. That the trustee of the PSSap Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

a.Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to [Mr Granville] in the immediately preceding clause of this Order; and

b.Pay the entitlement whenever the trustee makes a splittable payment from [Ms Blakeslee’s] interest in the PSSap Superannuation Fund. 

1. That these Orders shall bind the Trustee of PSSap.

2. That the Court notes:

a.That in accordance with Section 90MZD of the Family Law Act 1975, the Trustee has been accorded procedural fairness in relation to the making of this Order and has been provided with a copy of the proposed Order;

b.The value of the non-member spouse interest is calculated in accordance with the Superannuation Industry (Supervision) Regulations 1994; and

c.Any payments from the [Ms Blakeslee’s] superannuation interest in the PSSap Superannuation Fund made after the trustee has created a new interest in the [sic] [Mr Granville’s] name in the PSSap Superannuation Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001.

OnePath Masterfund

1. That in accordance with Section 90MT(4) of the Family Law Act 1975, a base amount of $16,235 is allocated to [Mr Granville] out of [Ms Blakeslee’s] interest in the OnePath Masterfund, member number ...

2. That, in accordance with Section 90MT(1)(a) of the Family Law Act 1975:

a.[Mr Granville] (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

b.The entitlement of [Ms Blakeslee] in the OnePath Masterfund, member number … (or the entitlement of such other person who becomes entitled to receive a payment out of [Ms Blakeslee’s] superannuation interest) is correspondingly reduced by force of this Order; and

c.That this Order has effect from the operative time and the operative time is (4) business days after the day on which the final sealed, signed Orders are served on the Trustee.

1. That the trustee of the OnePath Masterfund, (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

a.Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to [Mr Granville] in the immediately preceding clause of this Order; and

b.Pay the entitlement whenever the trustee makes a splittable payment from [Ms Blakeslee’s] interest in OnePath Masterfund, member number …. 

1. That these Orders shall bind the Trustee of the OnePath Masterfund.

2. That the Court notes:

a.That in accordance with Section 90MZD of the Family Law Act 1975, the Trustee has been accorded procedural fairness in relation to the making of this Order and has been provided with a copy of the proposed Order;

b.The Trustee has indicated by correspondence that it does not object to the proposed Orders being made and it does not wish to be heard in this matter.

c.The value of the non-member spouse interest is calculated in accordance with the Superannuation Industry (Supervision) Regulations 1994; and

d.Any payments from the [Ms Blakeslee’s] superannuation interest in the OnePath Masterfund, member number … made after the trustee has created a new interest in [Mr Granville’s] name in the OnePath Masterfund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation ) Regulations 2001.

1. Except as otherwise provided in these Orders the Husband and Wife be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, shares, superannuation entitlements and personal effects currently in the possession or control of each of them respectively. 

APPENDIX C

Joint Table of Assets and Liabilities

ASSETS
Property	Ownership	Husband’s Figure	Wife’s Figure	Agreed/Disputed
E Street, Suburb F	Joint	$1,100,000	$1,100,000	Agreed
Motor vehicle	Husband	$18,150	$18,150	Agreed
Granville Family Trust Fund	Husband	$52,890	$52,890	Agreed
Funds taken at separation by Husband	Equal	$7,000	$7,000	Agreed
Funds taken at separation by Wife	Equal	$7,000	$7,000	Agreed
Household furniture and effects	Divided by agreement	Divided by agreement	Agreed
Total Assets	$1,185,040	$1,185,040
LIABILITIES
Mortgage over Suburb F property	Joint	$496,108	$496,108	Agreed
Debt to Company L	Joint	$7,000	Disputed by wife
Total Liabilities	$503,108	$496,108

APPENDIX D

Updated Joint Table of Assets and Liabilities

Assets
Property	Ownership	Value
E Street, Suburb F	Joint	$1,225,000
Motor Vehicle	Husband	$18,150
Granville Family Trust Fund	Husband	$52,890
Funds taken at separation by Husband	Equal	$7,000
Funds taken at separation by Wife	Equal	$7,000
Household furniture and effects	Divided by agreement
Total Assets	$1,310,040
Liabilities
Mortgage over Suburb F property	Joint	$473,749
Total Liabilities	$473,749

APPENDIX E

Superannuation

Ownership	Value
AMP	Wife	$29,071
ANZ	Wife	$32,884
PSSAP	Wife	$68,588
*UK Superannuation Standard Life £70,430 @ 1.95963 AUS	Wife	$138,017
Granville Investment Scheme (as at 30 June 2015)	Husband	$17,748
Total Superannuation	$286,308