Boxall & Boxall

FAMILY COURT OF AUSTRALIA

BOXALL & BOXALL

[2008] FamCA 325

FAMILY LAW –CHILDREN - Living with and spending time with – Wife lives in New South Wales and husband lives in Western Australia – Wife is the primary caregiver and parties agree that the children should live with the wife – How much time children should spend with the husband

FAMILY LAW – CHILDREN – Whether the parties should have equal shared parental responsibility for the long term care, welfare and development of the children – Parties’ relationship is appalling and equal shared parental responsibility would be unworkable and such an order would be contrary to the best interests of the children – Wife to have sole parental responsibility

FAMILY LAW – PROPERTY – Contribution by the parties – Husband’s initial contribution is much greater than the wife’s – Wife’s parenting and home-making contributions have been significantly greater than the husband’s

FAMILY LAW – PROPERTY – Superannuation – splitting order

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Boxall

RESPONDENT:	Mr Boxall
FILE NUMBER:	NCC	625	of		2007

DATE DELIVERED:

7 May 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Newcastle

JUDGMENT OF:

JUSTICE MULLANE

HEARING DATE:

29 & 30 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Boyd

SOLICITOR FOR THE APPLICANT:

Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT:

Ms D Burns

SOLICITOR FOR THE RESPONDENT:

Mandy Hull & Associates

Orders

All prior parenting orders regarding the parties’ children H born … June 1999 and R born … May 2001 are discharged.
By consent the children are to live with the wife.
By consent the children are to spend time with the husband:
3.1from 9am on the first Saturday until 5pm on the second Saturday of each of the NSW public school holidays at the end of Terms 1, 2 and 3;
3.2from 21 December to 21 January in each summer school vacation commencing in an odd numbered year and from 2 January to 22 January in each summer school vacation commencing in an even numbered year;
3.3the husband to give the wife 28 days notice of inability to spend time with the children for one of the periods under 3.1, the children would then spend additional time with him during the next such vacation until 5pm on the last Friday of that vacation;
3.4by telephone as agreed by the parties, or failing agreement on any day between the hours of 6pm and 7pm (where the children are located) and to be implemented by the (husband) telephoning the children.
3.5such other times as the parties agree.
By consent the husband must give the wife at least 28 days written notice of the flight numbers and times before implementation of each period of time or additional time under 3.1, 3.2 and 3.3 and subject to that notice the period will be implemented by:
4.1the wife delivering the children to the forward flight at the Qantas terminal at Sydney Airport at the commencement of the period and collecting them from the same place from the return flight at the end of the period; and
4.2the husband collecting the children from the forward flight at the Qantas terminal at the end of the forward journey and delivering the children to the return flight at the same place for the return journey.
The husband must:
5.1pay the children’s fares for flights from Sydney and Perth and return to implement paragraphs 3.1 and 3.2 and additional time under 3.3;
5.2ensure the flights are direct flights;
5.3until the 2008/09 summer school vacation ensure a responsible adult known to the children accompanies the children on each flight;
5.4thereafter ensure that for each flight he completes and lodges with the airline a notification and request for the child to travel as an unaccompanied minor; and
5.5ensure that he does not undertake paid work on more than 2 days if any 7 days period either child is spending time with him under paragraphs 3.1, 3.2 or 3.3.
The husband may elect by 28 days notice to the wife by letter or e-mail that a period the children are to spend with him pursuant to paragraphs 3.1, 3.2 or 3.3 is to occur in the following basis:
6.1the husband to collect the children from their home at the start of the period and return them there at the end of the period;
6.2the husband to provide the wife before the period with details in writing of where he plans to take the children during the period, and where he plans they will stay during the period;
6.3the husband to undertake no paid work in the period; and
6.4the husband to ensure the children telephone the wife at least once in each 3 days.
If the husband gives notice under Order 6 the parties must implement that period of time to be spent by the children with him in accordance with 6.1 to 6.4.
In addition to the times in Order 3 the children are to spend time with the husband on one or more occasions for a total of up to 7 days in any school term to be implemented on each occasion by the husband collecting the children from their residence at the start of the period and returning them there at the end of the period and each such period is subject to the following conditions:
8.1other than the use of before school care for up to 1.5 hours and after school care for up to 1.5 hours, the husband must personally care for the children when they are not attending school; and
8.2the husband must give the wife at least 28 days notice by letter or e-mail of the period proposed.
The husband has parental responsibility for decisions as to the day to day care of the children when they are spending time with him.
Otherwise the wife has sole parental responsibility for the children.
Each party must keep the other informed of his or her:
11.1landline telephone number;
11.2mobile telephone number; and
11.3e-mail address.
Each party must promptly inform the other of either child:
12.1 being hospitalised; or
12.2 suffering any serious illness or injury.
The wife must:
13.1keep the husband informed of the school each child attends;
13.2authorise the school each child attends to provide the husband with copies of all reports and documents regarding the progress of the child;
13.3not use any surname other than Boxall for the children;
13.4not use any other Christian names for the children;
13.5ensure each child uses only Boxall as her surname;
13.6ensure each child does not use a different Christian name; and
13.7not apply for a passport for either child except with the written consent of the husband or permission of a court.
By consent each parent is authorised by this Order to obtain from any school, treating health professional, or organising body for any sporting body, any information he or she reasonably requests regarding the health, education or sporting activities of either child.
By 9 October 2008 each party must attend and complete a course in parenting after separation approved or nominated by the Manager of the Child Dispute Service of this Registry of the Court and must:
15.1telephone the Manager within 10 days and obtain the necessary approval or nomination;
15.2 attend each session of the course;
15.3 pay the reasonable fees for the course;
15.4upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
15.5promptly provide the other party with a copy of the letter.
On or before 9 June 2008 the parties must do all acts and execute all documents prepared by the wife to cause the funds held on their behalf with Macquarie Bank by the solicitors “Lees Family Law” to be paid to the wife.
Whenever a splittable payment is payable in respect of the superannuation interest of the husband in the Military Superannuation and Benefits Scheme:
17.1The wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations, 2001, using a base amount in the sum of $48,506 at the operative time of 21 November 2007; and
17.2there is a corresponding reduction in the entitlement of the person to whom the splittab1e payment would have been made but for this order.
The above order binds the trustee of the superannuation fund and the trustee must implement the order.
The obligations of the husband to comply with interim property orders of the Local Court made on 16 January 2004 requiring him to return the wife’s engagement ring to her continue.
Except as otherwise provided in these orders, any outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC625 of 2007

MRS BOXALL

Applicant Mother

And

MR BOXALL

Respondent Father

REASONS FOR JUDGMENT

INTRODUCTION

This was a contested hearing regarding the parties’ 2 young girls. The girls live with the wife in New South Wales. The husband lives in Perth and the girls travel to Perth to visit him. The husband has accompanied them on such flights.
The parties have a very poor relationship but they agree that the girls should continue to live with the wife and visit the husband in Perth in school holidays. They agree on other matters about the children.
The parenting issues are:

Should there be equal shared parental responsibility?
Should there be provision for the husband to spend time with the girls if he travels to where they live?;
Should the wife contribute to the air fares when the girls go to Perth?
Should the husband be restrained from attending paid work when the girls spend time with him?
Can the girls travel unaccompanied?

This was also a hearing of competing applications for alteration of property interests.

CREDIT OF THE APPLICANT WIFE

The husband relied upon documentary evidence by way of a letter dated 20 September 2004 from the Military superannuation and Benefits Scheme, regarding the wife’s withdrawal of $8,401 of her superannuation entitlements. The wife resigned from the Defence Forces in December 1999, well before separation. She testified that the amount in question was received by her at about the time of the resignation; not at about the time of the letter. She alleged that the letter had been written in 2004 to certify what she had received in 1999.
However, that explanation is not consistent with the present tense used by the letter, particularly in relation to when the money would be credited to her account.
Exhibit H1 shows that the total employer benefit she held with the fund at 30 June 2003 was $32,133.76 and the member benefit was $1,212.84, giving a total of $33,346.60. The valuation of the wife’s superannuation entitlements by Mr G as at October 2004 was $21,533. The submission for the husband was that these figures are consistent with a withdrawal of more than $8,000 between 30 June 2003 and 18 October 2004.
But that submission and the cross-examination of the wife about this issue was misconceived by confusing valuation figures in accordance with the Regulations with benefit figures stated in Member Statements. They are not comparable. Indeed Appendix B to Mr G’s valuation shows that at 18 October 2004 the employer benefit had grown to $33,693.20 and the member benefit had grown to $1,422.89. That is inconsistent with a withdrawal of more than $8,000 since 30 June 2003. The wife’s evidence is accepted.
In cross-examination and from Exhibit H2, it became obvious that the wife in her affidavit had failed to disclose a significant debt of hers at the time of commencing cohabitation. It appears she had a debt of about $4,000 by way of a car loan from the Australian Defence Credit union.
She said in her affidavit that at the time they commenced cohabitation she had $4,000 in savings, which was used to pay out debts of the husband. The husband did not deny the allegation that the wife had savings of $4,000 at the time cohabitation commenced and that those savings “were used (principally)” to pay out some debts of his and for expenses incurred on their wedding and honeymoon. In the circumstances the Court finds that the wife did have savings of $4,000, but she also had a car loan debt of about $4,000.
In her affidavit sworn 25 August 2006 the wife testified in paragraph 5 that they separated on 27 November 2003. In paragraph 26 she said they separated on 1 December 2003. In cross-examination, she appeared to adopt the date of 1 December 2003.
In cross-examination, the wife testified that the mortgage payments on the former matrimonial home were paid out of the husband’s pay. But later, she conceded that she had agreed with the husband that rent collected by the agent would be paid to the mortgagee in reduction of the mortgage and this had generally been implemented.
At various stages of her cross-examination, the wife was evasive. She also volunteered unresponsive material in answer to questions that she avoided.
In paragraph 5 of the wife’s affidavit sworn 25 September 2007, she swore, “I worked from 7.30am to 3pm most school days”, and, “I generally worked 4 or 5 days per week during school terms”. But in cross-examination, she alleged that in August she had worked “at least 1 day per week”, and, “Sometimes 2 to 3 days”. When asked the average, she was evasive. When “4 or 5 days” was suggested to her, she said, “Maybe once per month”. Eventually she said that it averaged 3-4 days per week. When it was put to her that the evidence in her affidavit of 4-5 days per week during school terms was incorrect, she was again evasive and became irritated at the questioner when the question was pursued. Eventually she conceded that at the time she swore the affidavit she was working 4-5 days per week. It was then put to her that her earlier evidence in cross-examination was incorrect, and she then became evasive and unresponsive and rambled. She was again evasive when it was put to her that she had averaged 4-5 days work per school week in the period 1 July 2007 to 25 September 2007 and she eventually conceded the proposition.
The wife presented as generally honest and frank, but not entirely reliable.

CREDIT OF THE RESPONDENT HUSBAND

In cross-examination it was revealed that the husband consented to orders in 2004 in a Local Court requiring him to return an engagement ring and other items to the wife. He testified that at the time he consented to the Order he did not have the ring and did not know where it was. He was particularly evasive when cross-examined about the orders and his failure to deliver the ring to the wife. He claimed that he just does not know where the ring and other items he was required to return are. It was suggested to him that his failure to produce the ring and other items might have caused distrust in the relationship between the parties. He avoided the question. It was put to him that when he signed the consent order he had no intention of delivering the ring to the wife. He avoided the question.
On the day the parties separated, the husband assaulted the wife. He was prosecuted for assault and the offence was found proved beyond reasonable doubt, but it appears no penalty was imposed and he was dealt with as a first offender. He conceded in cross-examination that he has never apologised to the wife for the assault.
In his affidavit the husband gave sworn evidence that he had repaid a loan of $47,000 from his parents before he met the wife. But in cross-examination he conceded that that proposition was untrue.
From time to time in cross-examination the husband avoided questions asked of him.
He at first denied that in April he was aware that he could not be at Court for the original hearing date. But later he conceded that he did know in April.
It was put to the husband that he told the Court at Wollongong that he would not attend any further mediation sessions with the wife. He avoided the question. He was then shown a document, being a letter from his solicitors to the Court to that effect (Exhibit W2) and only then agreed that he had instructed his solicitor to tell the Court that he would not attend any further mediation sessions.
In cross-examination the husband conceded that he has long service leave entitlements and said that he will use those before he leaves the Defence Force next year in order to support himself while he does a Nursing course in Western Australia. He plans to become a nurse. He said he does not know how much his long service leave entitlements are. The husband had not disclosed any long service leave entitlements in his affidavits or in his Financial Statements. At the end of the hearing he had not disclosed the details of his entitlements.
The husband was generally less credible than the wife.

BACKGROUND - CHILDREN

The parties commenced cohabitation in about February 1997. At the time they were both employed by the Australian Defence Force and living in Perth.
Their first child, H, was born in June 1999. The wife took maternity leave in May 1999 and subsequently resigned from the Defence Force in December 1999.
In about March 2000 the parties moved to Sydney as the husband was posted there. Later in the year the wife commenced working 4 days per week in the Defence Reserve. H was in day care while the wife worked.
From January to May 2001 the husband was training in Melbourne and the wife and H remained living in Sydney. The parties’ second child, R, was born in May 2001. The wife ceased paid work not long before R’s birth.
That year the parties moved to the south coast of New South Wales as the husband was posted there. They lived in defence housing. The wife resumed working for the Defence Reserve on a part time basis after R turned 2 in May 2003. R attended day care when the wife was at work. In October 2003 the wife transferred to another branch of the Reserve and worked part time.
The parties separated on 1 December 2003. The children thereafter have resided with the wife.
Interim parenting orders were made in the Local Court in the south coast of New South Wales on 16 January 2004 by consent. Those orders provide for the children to reside with the wife, for the parties to have joint responsibility for the long term care, welfare and development of the children, and for the children to have contact with the father every second weekend from 9am Saturday until 5pm Sunday. The wife apparently moved to the Newcastle area after separation. The husband exercised that contact with the girls.
In July 2004 the husband was posted to Sydney.
Final parenting orders were made by consent in the Family Court of Australia at Wollongong on 27 October 2004. The orders provided that the children continue to reside with the wife and that the parents continue to have joint responsibility for decisions as to the long term care, welfare and development of the children. The orders provided for the children to have contact with the husband:
a)in school terms every second weekend from 9am Saturday to 4pm Sunday;
b) on Father’s Day from 9am to 5pm;
c)Telephone contact 3 times a week;
d)for 10 days in each summer school vacation;
e)half of each other school vacation; and
f)as otherwise agreed between the parents.
There were also various other provisions.
The husband implemented that contact with the girls, although he was living in Sydney, until in April 2005 he was posted to Perth in Western Australia. Then he spent time with the girls only occasionally in School vacations and implemented it by travelling to their home to collect them, flying them to Perth, afterwards flying them back to NSW, driving them home, and then returning to Perth. He has paid all the expenses of such travel. The husband has since resided in Perth and the wife and the children have since resided in the Newcastle area.

R commenced school in early 2006 and the wife then started working as a Reservist. On 14 March 2006 the parties agreed to vary the time the children spend with the husband and this was done by consent orders in the Federal Magistrates Court defining the time as to:
·17 days in every second summer vacation and about 3 weeks in every other summer vacation; and
·half the other school vacations.
(There was no provision for time in school terms.)
In May 2006 the husband was posted to Western Australia.
From June 2006 the wife has cohabited with Mr P. They purchased a house in the Newcastle area in 2007 in their joint names. They married in February 2007.
In June 2007 the husband was deployed overseas. The hearing had already been fixed for October in the Federal Magistrates Court. Because the husband was unavailable, the hearing was vacated. The proceedings were subsequently transferred to this Court. He returned from overseas in December 2007 in time for the hearing on 29-30 January 2008. At the hearing Judgment was reserved.

PARENTING ISSUES

The parties are agreed on the following matters:
1)The children are to reside with the wife.
2)They are to spend time with the husband.
3)That time is to include:
3.1from 9am on the first Saturday until 5pm on the second Saturday of each of the NSW public school holidays at the end of Terms 1, 2 and 3;
3.2from 21 December to 21 January in each summer school vacation commencing in an odd numbered year and from 2 January to 22 January in each summer school vacation commencing in an even numbered year;
3.3the husband to give the wife 28 days notice of inability to spend time with the children for one of the periods under 3.1, the children would then spend additional time with him during the next such vacation until 5pm on the last Friday of that vacation;
3.4by telephone as agreed by the parties, or failing agreement on any day between the hours of 6pm and 7pm (where the children are located) and to be implemented by the (husband) telephoning the children.
4)The (husband) must give the (wife) at least 28 days written notice of the flight numbers and times before implementation of each period under 3.1, 3.2 and 3.3 and subject to that notice the period will be implemented by:
4.1the (wife) delivering the children to the forward flight at the Qantas terminal at Sydney Airport at the commencement of the period and collecting them from the same place from the return flight at the end of the period; and
4.2the (husband) collecting the children from the forward flight at the Qantas terminal at the end of the forward journey and delivering the children to the return flight at the same place for the return journey.
5)Each party is to keep the other informed of his or her postal address, landline telephone number, mobile telephone number, and e-mail address and is to give the other as much notice as practicable (preferably in advance) of any change.
6)Each party is to immediately notify the other if either of the children has a “medical emergency”.
The parties agree to an order whereby each is authorised to obtain from any school, health professional or organising body for any sporting activity, any information he or she reasonably requires regarding the children’s health, education or sporting activities.
The parenting issues in dispute in the proceedings are as follows:
1) Parental responsibility
2)Newcastle contact
3)Unaccompanied travel
4)The husband’s leave
5)Air fares

THE GIRLS

It needs to be said that there was very limited evidence provided by the parties about the children themselves. The parties seemed to be more focussed on their conflict and the issues between them. There was no Welfare Report in the proceedings.
Both the girls are minded by a girlfriend of the wife on school days from 7.30am to 9am if the wife is attending paid work.
Since 2005 the girls have travelled to Western Australia to spend part of their summer school vacation with the husband and also on some other occasions. The mother testified that they have “done the trip at least 9 times”. These trips have been facilitated by the husband flying to Sydney, hiring a car, driving to the Newcastle area, collecting the children, driving back to Sydney airport, flying with the children to Western Australia, and then on the return journey, repeating a similar process. He has met the cost of all of the transport and it appears that that cost is about $3,300 each way plus any expenses for accommodation if he has to stay in the Newcastle district overnight.
The husband has often had telephone contact with the girls since the separation. He telephones frequently, although he was unable to do so when he was overseas. Since his return his telephone contact with the girls was described by the wife as “almost daily”.
The wife’s evidence is that since 2005 the time the children have spent with their father has been in school holidays and has occurred only once or twice per annum. Because of the husband’s work commitments, there have been other periods apart from his service overseas, that he has not been able to have telephone contact with them for weeks at a time. During such periods, the paternal grandmother, who resides with the husband in Perth, usually telephones the girls every couple of days.
Since the separation, the wife has been primarily responsible for all decisions regarding the girls’ welfare. She has made decisions about what school they attend, and what medical treatments they have had. She has generally not consulted the husband about such issues.
H and R both attend W Public School in the Newcastle area. They are both making satisfactory progress. H is doing an extra-curricular course in reading, comprehension and study. H will turn 9 in June 2008 and R turned 7 in March 2008.

THE WIFE

The presentation and evidence of both parties established that they have a serious conflict. They bear considerable distrust and disrespect for each other. They cannot communicate on any reasonable basis. They each have serious issues with the other that have not been discussed between them or resolved. They each are disrespectful to the other as a parent of the children by failing to properly consult the other or properly communicate with the other about parenting matters. They do not recognise or implement the most basic obligation of a parent to the other parent to keep the other parent informed and to discuss issues concerning the children. They are incapable of parenting cooperatively and together. Their present parenting approaches will prevent them negotiating and agreeing on standards, routines and expectations that will be consistent in both households. That will deny the children clear standards and routines and predictability in their parenting
In the courtroom it appeared that neither of the parents recognises that their success as parents depends upon them being able to communicate well, demonstrate to the children and each other respect and trust for each other, and negotiate and agree upon consistent standards and routines for their children.
Neither of the parents has recognised their personal inadequacy or responsibility in this regard, and, so far as the evidence discloses, neither of them has sought out any professional assistance to change the situation. Neither parent has attended a Parenting After Separation course, although both indicated their willingness to do so. The children’s interests demand that they be ordered to do so.
In her affidavits, the wife detailed (and the husband did not deny) abusive behaviour by the husband towards her before separation, including a physical assault. He also took her credit cards and refused to return them. He took money from her wallet without her permission.
When she left the home she had the children and little else apart from clothing and personal effects. She was forced to live with her family and to borrow funds from her parents to support herself and the children.
There were then interim proceedings and Court Orders made on 16 January 2004 including orders for the husband to deliver up to the wife the engagement ring and other specified items. Understandably the wife is resentful that the husband did not comply with the consent orders. He provided only some of the items. His arrogant attitude to the obligations that the orders he consented to imposed upon him was quite remarkable. He was extremely arrogant about the issue. His attitude and behaviour has predictably caused the wife to be distrustful of him.
When she went to the home on 22 January 2004 to collect items of personalty for herself and the children pursuant to the Court Orders, the husband refused to release some of the items to her. The Police were called. There was correspondence between solicitors. But the husband did not relent.
In addition, Exhibit W2 shows that on his instructions his solicitors wrote to the Registrar of the Family Court at Wollongong on 16 December indicating his refusal to attend further mediation between the parties to resolve issues between them. It is reasonable and predictable that because of this behaviour the wife would be distrustful of him and doubt that he has any bona fide intention to resolve issues between them and establish co-operative parenting.
There is also evidence that when the husband failed to comply with the Court Orders he had consented to for the provision of the engagement ring and other items of personalty to be returned to the wife, his then solicitors responded in a letter: “The writer will not engage in correspondence when tea towels and bath towels are the subject of complaint. It is considered that matters of substance should be addressed and it is of no purpose whatsoever to debate such things.” Presumably, the husband was aware of that response. He did not dissent from it. Such behaviour could only aggravate the existing negative attitudes the wife had towards the husband.
The wife said that the husband says that he is not prepared to talk with her about the girls and when he phones the girls, she said she is unable to talk to him about any major issue concerning the children because, “He won’t talk to me. He says, ‘Go through your solicitor’.” She said that when the husband calls on the telephone, “If I try to talk to him, he says, ‘I’m not here to talk to you. I want to talk to the girls’.” She also said, “I try to reason with him – talk and sort things out. He doesn’t want to talk to me. I can’t reason with him.” But it appeared that there was nothing to prevent her writing or, if she had his e-mail address, from forwarding an e-mail, to inform him of matters concerning the girls.
She conceded in cross-examination that the difficulties the parents have in discussing matters regarding the children is not just the husband’s fault. She said, “We both have problems”. She said her husband has occasionally assisted as an intermediary.
In cross-examination the wife said that her income from paid work for the Reserves is generated from work during school terms only. There is no work available in school vacations. She prefers to not work in school vacations, in any event, because she wants to be available to supervise the girls (and the 2 sons of her husband) at such times. She can earn up to $30,000 per annum for this employment tax free. (That is equivalent to 1200 hours of full time work per annum.
She acknowledged that the girls have a close relationship with their paternal grandparents in Perth and that she has no knowledge of any risk to the children when in the care of their paternal grandparents. She also conceded that it is important for the girls to enjoy time with them and have phone contact with them. She said that when the girls go to Perth, “They generally have a good time”.
She acknowledged that if the husband is required to work when he is on duty, it is not detrimental for the girls to spend a day or 2 being cared for by their paternal grandmother. Nevertheless she said that the time the children have in Western Australia is “time with their father”, and “the purpose is to spend time with the father and get to know him”. She said, “If they can’t spend the time with their father, I’d like to spend the time with them”.
She conceded that even if the father was required to work, he would be able to spend time with them before and after work. Later she said, “I feel it is detrimental to them (to be with the paternal grandmother) because they want to see their father. I think they’d be very upset.”
She later conceded that it would not be detrimental if the girls were in Perth and were cared for by their grandmother for 2 days while the husband was attending his work.
She conceded that the husband’s leave was about only 30 days per annum, so that if he were to spend 44 days per annum with the girls, there would be 14 days when he would have to attend work for part of the day.
The wife could recall only 1 specific occasion when the husband had been in the Newcastle area and requested to see the girls. That was prior to the hearing. He made the request on the first day of the 3 day Australia Day weekend. She at first asked him to call back later. When he did, she refused his request. It appears that this was partly because he made the request through H. He spoke to H and asked her to convey the request. She said, “I had already made arrangements. We were just home from camping. We went out on Saturday night and had my father over. We spent time with my parents.” She also said the children had to go back to school after the vacation.
When it was put to her that there was nothing to stop the girls spending an hour with their father that weekend, she replied, “Nothing but trust”. She denied that she was suggesting that he might abduct them. She did not give any elaboration as to why she refused him time with the girls. It appears that she did not give proper recognition to the girls’ interests and their need to spend time with, and have a close relationship with, their father.
The wife’s evidence is that the husband’s role in the parenting of the children prior to separation was significantly less than he alleges. She denied he regularly bathed or fed the girls when they were small, and denied that he regularly looked after them at night time. She denied that he “regularly” looked after the girls to give her “time out”.

THE HUSBAND

When it was put to the husband that he had never apologised to the wife for his behaviour when he assaulted her on the day of the separation, he responded, “And she didn’t”.
He claimed that when he consented to the Court Order in January 2004 for him to return the engagement ring to the wife, he did not have it. He said he has no idea where the rings referred to in the Orders are. He said, “Virtually all my belongings” were sent back to Western Australia after the separation”. He conceded in cross-examination that some of his belongings are still packed in boxes and have not been unpacked since they were shipped to

Western Australia
, and he conceded that since the orders of January 2004 there had been repeated requests by the wife’s solicitor for him to comply with the orders. When he was asked whether he thought failure to produce the rings as ordered might cause distrust in the relationship, he replied, “Distrust was already in the relationship”.
He reluctantly conceded that he did not tell the wife on occasions when the girls were flying via Melbourne to Perth instead of flying direct from Sydney to Perth.
He conceded that when he was deployed overseas, he did not tell the wife.
In cross-examination he conceded that he has not notified the Child Support Agency of a promotion he received before he went overseas leading to an increase in his income. Nor did he inform the Agency of his income overseas being tax free. When this was put to him he said, “No I didn’t, because I was already paying significant Child Support”. He testified that he has twice applied (unsuccessfully) to reduce his Child Support liability
The husband is in a romantic relationship with a lady and the girls have met her and stayed at her place with their father. But the husband has never informed the wife about his relationship. He said, “I didn’t believe it is her business”. He was asked whether he does not think that the wife is entitled to know who the girls are spending time with, but avoided the question.
At the hearing he provided his e-mail address for the wife, but had not previously supplied it. When he was asked why he had not given it to her before, he answered, “I don’t know her address”. But he conceded that he had never asked her for her address.
He said that there is “mutual distrust” between him and the wife and they don’t tell each other “what is going on in our lives”.
At times in his cross-examination the husband was quite assertive and aggressive and he appeared to be very hostile to the wife. He appeared to not acknowledge or recognise any responsibility for the parents’ poor relationship or any damage his conduct did to their relationship and their parenting prospects.
The husband conceded that since his move to Perth he could have arranged to spend time with the children in the Newcastle area by him travelling to the Newcastle area and staying in the area. But he said he has never offered to do so.
He denied that he gets on “pretty well” with the wife’s new husband. He said, “I don’t normally talk to him”.

RELEVANT LAW

The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) of the Family Law Act provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) of the Family Law Act provides:
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)      to develop a positive appreciation of that culture.

Section 60CA of the Family Law Act provides:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC of the Family Law Act provides:
Determining child’s best interests
(1)      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
(2)      The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)      Additional considerations are:
(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 views;
(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);
(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;
(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;
(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;
(f)       the capacity of:
(i)       each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.

PARENTAL RESPONSIBILITY
The husband proposes that the parties “shall have equal shared parental responsibility for the long term care, welfare and development of the children”.
The mother proposes an order:
11)     That the mother have sole parental responsibility to the children provided that she shall:
a)        contact the father forthwith in the event of any medical emergency concerning either of the children;
b)        advise the father forthwith of any school attended by the children and shall provide the school with such authorities as may be required to ensure the father is able to receive all reports and notices issued by the school concerning the progress of either of the children;
c)        be restrained from taking any action to alter the names of either of the children or to apply for a passport for either of the children without the father’s written consent or Court Order.
Section 61DA of the Act provides:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)      The presumption does not apply if there are reasonable grounds 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.
The parties’ relationship is appalling. They are presently incapable of the level of respect, trust, communications, negotiations, compromise and co-operative parenting the children need. The parents’ relationship is a curse on their children and themselves and each of the parents has demonstrated little insight into the problem, acknowledged little responsibility for it, and accepted no responsibility to instigate professional help or other steps to address the problem.
They are presently incapable of co-operative parenting. If they had equal shared parental responsibility it would not work. On the contrary it would provide numerous opportunities for them to pursue their conflict about issues about the children and at the children’s expense. An order for equal shared parental responsibility would be contrary to the children’s interests.
The wife provides the large majority of the children’s care and always has. They are primarily dependent upon her and she is their main attachment figure. She should have sole parental responsibility. The evidence does not establish that the children’s interests require that the conditions she proposes be conditions of sole parental responsibility. But the children’s interests do require, because of her poor attitude to the husband, that there be orders that separately impose the same obligations.

NEWCASTLE CONTACT
The wife proposes an order:
9 That upon the father giving the mother at least 28 days written notice, the father shall spend further time with the children during school term times to a maximum of 4 days duration, and provided the children continue to attend school at their scheduled times.
The husband proposes that the period during school terms be to a maximum of 14 days, instead of 4.
The wife has demonstrated that she cannot be relied upon to put the children’s interests first if an opportunity arose for them to spend time with their father in the Newcastle area in school terms arises.
The children on all the evidence do have a positive and enjoyable relationship with the husband. Complaints they have made to the wife about their previous trips to Western Australia have mainly been about the travel times, especially time spent at Melbourne Airport between flights. The husband has addressed this and testified that in future the flights will be direct between Sydney and Perth.
If the children can only spend time with the husband in school holidays the frequency of those times will be so limited and the time between occasions so long, that they will not have:
·    Opportunities to spend time with him in school terms and share with him the more mundane times and routines;
·    Opportunities for him to participate with them in after school activities, weekend sporting and social commitments in their area, and school functions;
·    Opportunities to mix with and get to know their friends, school teachers etc;
·    Opportunities to be much more involved in their lives; and
·    Opportunities to develop and strengthen their relationships with their father beyond him being a “school holidays dad”.

With the very high cost of the travel arrangements for the children to go to Western Australia, it is likely that at times the father will not be able to afford to implement the arrangements in some vacations. The opportunity to spend time with the children in the Newcastle area could provide a cheaper option, even if he has to pay for accommodation for him and the girls.
The wife’s proposal is to limit such opportunities to 4 days. Given the infrequency of the periods the girls spend with the husband that would be too short a period. The husband seeks that it be up to 14 days. That would be too long. It would be too disruptive to their schooling and other activities. It is likely to make too many more demands on the parents’ limited ability to cooperatively parent and be much more likely to result in the girls being exposed to parental conflict. On balance, the children’s interests are best served if the maximum is 7 days in any one school term, but the 7 days can be comprised of more than one period.
However, it would also be in the children’s interests that the husband be able to choose to exercise any of the school vacation periods in the Newcastle area as, at times he may be unable to afford the fares for the girls to travel to Western Australia, but able to afford the expenses of implementing the period in the Newcastle area.
UNACCOMPANIED TRAVEL
The wife proposes that there be an order that the husband ensure that the children are accompanied by an adult during plane flights until such time as H is 12 years of age. The husband opposes such an order.
The flight times for the travel between Sydney and Perth are 4.5 hours on the forward journey and 3.5 hours on the return journey. The documents from Qantas in the wife’s case, (which the husband does not dispute) establishes that children from 5 years upwards are permitted to travel unaccompanied for domestic flights. For children 5 to 12 years, an Unaccompanied Minor Form needs to be completed and airline staff will supervise the child. Children 12 -15 can travel unaccompanied, but the airline will not make special arrangements for them unless such a form is lodged.
The children have travelled by plane on numerous occasions. Until now they have always been accompanied. They will be travelling together, which is likely to be easier for each of them than travelling without the other.
It appears H attended day care from 2000 and has attended school since early 2004 or 2005, and R attended day care from about May 2003 and has been attending school since early 2006. They have both coped with being minded by the mother’s friend in the mornings before school on the mother’s work days. They have also apparently coped with being minded by the paternal grandmother at times when they are in Western Australia and the husband has had to attend to other commitments.
On the balance of probabilities both girls will cope travelling unaccompanied (with supervision from airline staff) by the next summer vacation.

THE HUSBAND’S SHORE LEAVE
The wife proposes an order that: “The father ensure that he has Leave during all periods when he is expected to have the care of the children under the Orders”. The husband opposes such an order, but is willing to consent to an order that for “most of the period” he would have leave.
The husband is entitled to about 30 days of leave per annum when he could be available to spend the day with the girls. He is also entitled to public holidays that fall on days on which he would otherwise work. The periods he would spend with the girls in school vacations under the agreed arrangement would comprise the following leave days after allowing for public holidays and weekends:
Summer Vacation average about 15 days
Other vacations average about         13 days
Total  about 28 days
It is likely that he will not always be able to obtain permission to have leave for the whole of a period scheduled in a school holiday. No doubt many Defence staff seek to take leave in school holidays so they can spend the time with their children.
If the children are in Western Australia, they will be cared for by the paternal grandparents if the husband is not available. The children have positive relationships with the grandparents, particularly the grandmother. They enjoy their time with them. Being cared for by the grandparents does not involve any real risk.
If the father is required to work during any period the children are to spend time with him in a school vacation, it would still be in the children’s interests to attend, so long as the husband is not required to work on more than 2 days in any period of 7 days and for the periods he works, the children are cared for by one of the grandparents. There should be orders accordingly.
With regard to periods the husband elects to spend time with the children in the Newcastle area in School terms, he anticipates he may be in the area in connection with his employment. These should be conditional upon him being available to care for them outside school hours except that he should be able to rely on up to 1.5 hours of before school care and 1.5 hours of after school care on each day of any such period.
For school holiday periods the husband elects to spend with the children in the Newcastle area he should not undertake paid work as it would be contrary to the interests of the girls for him to have others care for them.
AIR FARES
The husband proposes each of the parties pay half the air fares. The wife proposes that the husband pay them all. The wife works only in school terms and she says in those weeks she generally averages 3 days per week over a year.
The full extent of the husband’s taxable and non taxable income for the period he was deployed overseas was not disclosed to the Child Support Agency, the wife or this Court. The Court does not have details of the 2007/2008 year to date taxable and non taxable incomes of the parties. The court is not able to predict what the husband’s expenses for spending time with the girls will be, particularly because of the uncertainty as to how often the periods will be and whether the girls will travel to Western Australia or he will travel to the Newcastle area.
In the circumstances it is not appropriate that this Court decide what the wife should contribute to the costs of the children spending time with the husband. The proper remedy for the husband, if he has a case for the wife to contribute, is to make an application to the Child Support Agency for a departure order reducing the rate of child support payable for the girls because of the “high costs involved in enabling a parent to spend time with or communicate with” the children (Child Support (Assessment) Act, s117).
PARENTING AFTER SEPARATION COURSE
For reasons already set out, the children’s interests require that the parties be ordered to attend a Parenting After Separation Course.

BACKGROUND - FINANCIAL

When the parties commenced cohabitation in February 1997, the wife had a motor vehicle worth about $2,000, savings of about $4,000 and a car loan of about $4,000 owing.
The husband had an interest in a property at L in Western Australia. The property was worth $97,000 and he owed his parents about $30,000 in respect of the funds for the purchase. His equity in the property was therefore about $67,000. The husband also owned some bonds with National Australia Bank worth about $5,000. The L property was rented out and the rentals applied towards mortgage repayments.
In November 1998 the parties purchased a property at W in Western Australia for $130,000. They borrowed $140,000 from Home Building society which was secured by mortgages over the L property and the W property.
When the wife resigned from the Defence Force in December 1999 she was paid $8,401 ($8,213 after tax) being part payment of her superannuation entitlements. The money was used for the purchase of a family car and fittings for the home at W. When the parties moved to Sydney in December 1999 they leased the home at W and used the rental income to pay the mortgage payments.
The husband completed the sale of the L property in March 2000 and the net proceeds were used to pay his parents the balance of the loan for the L property ($29,500) and reduce the mortgage debt on the W property.
When the parties separated in December 2003 they had the following property and liabilities: the W property (subject to the mortgage), the husband’s National Australia Bank bonds, the wife’s superannuation worth about $32,000, the husband’s superannuation worth about $104,000, the wife’s Toyota Camry station wagon worth about $7,000, the husband’s Suzuki Vitara worth about $3,000, some unquantified savings in the husband’s name and furniture and furnishings which the husband says were worth about $15,000.
When the W property was sold in March 2005 the net proceeds after discharge of the mortgage and sale expenses were approximately $158,800. These funds were invested in a controlled moneys account in the name of the husband’s solicitors in trust for both parties. In early 2006 the husband purchased his Celica car for $16,000. He traded in the Suzuki and received a trade in allowance of $2,000.
At about the time the wife commenced cohabiting with her present husband (June 2006), he purchased a Nissan vehicle in the joint names of the wife and himself. He paid $32,000 for the vehicle. The wife did not contribute to the purchase of the vehicle.
By way of interim distribution, in December 2006, the wife received an interim payment of $120,000 from the funds held by the solicitors from the sale of the home and the husband received an amount of $30,000. In 2007 the wife and her new husband purchased a house in the Newcastle area for $380,000. They also spent significant money on improvements to the property.

PROPERTY & LIABILITIES

The property of the parties comprises the following:
Wife’s interest in Newcastle area home – agreed value      $215,000
Wife’s savings per her admission in Financial Statement $1,000
Wife’s half interest in Camry motor vehicle per admission
against interest in Financial Statement    $2,000
Wife’s half interest in 1998 Nissan per admission in wife’s
Financial Statement $12,000
Wife’s household contents per admission in Financial
Statement$5,000
Wife’ssuperannuation entitlement with Military Super as
Per valuation by Ms D as at 30/6/06             $25,362
Husband’s superannuation with Military Superannuation and
Benefits Scheme per valuation Exhibit W3 as at 21/11/07          $199,542
Husband’s savings per his Financial Statement    $6,000
Husband’s 1994 Celica motor vehicle per admission against interest
in Financial Statement    $8,600
Husband’s household contents per admission against interest in
Financial Statement    $3,000
Husband’s National Australia Bank Bonds – per admission
Against interest in Financial Statement    $5,000
Joint funds held by Lees Lawyers – agreed    $23,031
Total property  $505,535

Although the wife in a document in January 2004 valued belongings she was to receive from the parties’ home at about $20,000, the court has preferred the figure of $5,000 in her financial statement of 19 September 2007 as the value of her share of the contents of her home. The latter figure is an admission against interest made on oath with the benefit of legal representation. The document was prepared by her solicitor and witnessed by him.
The other figure was made in a list which she wrote in January 2004. It is attached to a statutory declaration the husband made. Four years have passed since she wrote the document. The evidence does not establish whether she received all of the items. It does not establish which of them are in her possession. Nor does it establish whether the values shown for the items are replacement items or their actual market values. In these proceedings she was not shown to have any qualifications, experience or expertise in valuing second hand goods. Also, in his affidavit of 21 December 2002, the husband alleged the household goods of the parties at separation were worth only $15,000. Accordingly the figure of $5,000 in the wife’s financial statement has been preferred.
The liabilities of the parties at the time of the hearing comprised:
The wife’s share of the mortgage debt secured on the Newcastle area home –
Agreed$190,000
The wife’s debt for legal costs per her Financial Statement $3,500
The husband’s credit card debt per his financial Statement $1,215
Husband’s debt for legal costs $8,195
Total liabilities $202,910
It should be noted that all of the liabilities are post separation debts.
The difference between the property and the liabilities is $302,625.

PAID WORK

During the nearly 7 years of cohabitation the husband contributed his after-tax income from full time employment with the Defence Force and also the contributions made on his behalf by his employer to his superannuation. His employment during that period was as a non-commissioned officer.
During the cohabitation the wife contributed her income from paid work, including contributions to her superannuation made on her behalf by her employer. The wife’s periods of employment were as follows:
·February 1997 to June 1999 – full time employment with the Defence Force;
·from about March 2000 until about April 2001 4 days per week with the Reserve;
·about November 2002 to about October 2003 about half time with the Reserve; and
·about October 2003 to December 2003 about half time with another branch of the Reserve.
The wife’s employment during cohabitation was the equivalent of about 4 to 4½ years of full time work. Her taxable income for the period 1 July 1997 to 30 June 2003 was $91,826. In 1996/97 her taxable income was $33,557, so that it appears her income from the commencement of cohabitation to 1 July 1997 was about $9,520. Her taxable income for 2003/04 was $6,627, so it appears that her taxable income for the period 1 July 2003 to 1 December 2003 was approximately $6,630.
Accordingly, the best estimate on the evidence available as to her taxable income for the period of cohabitation is about $108,000.

PARENTING

The husband during the cohabitation was continuously in full time employment, whereas the wife at times gave up work to care for the child or children. She also at other times was in paid work, but only on a part time basis.
After H’s birth for about 5 months in addition to being away from the home about 9.5 hours per day 4 days per week and 6 hours on Fridays to attend his usual work duties, he performed occasional duties as a driver over night or on weekends for about 1 day every 4 weeks. For 4 months in 2001 the husband attended training in Melbourne while the wife remained in Sydney and cared for H. Later when the family was living in the south coast of New South Wales, he was posted for several weeks to Sydney. During that period he was in Sydney during each week and returned home to the wife and children at weekends.
From H’s birth in June 1999 for 4.5 years until the separation on 1 December 2003 the wife provided most of the parenting of the children, although the husband, if available, was an involved parent. However, in the more than 4 years since then, the wife has had almost all of the responsibility for the parenting of the children as the husband has had, particularly since he moved to Western Australia in May 2006, very limited time with the children.

SUPERANNUATION

The husband has served in the Australian Defence Force since September 1992 and it appears, therefore, that his superannuation entitlements have accumulated from contributions made by him or on his behalf from his work in more than 16 years since then. The cohabitation comprised only about 6 years and 10 months of that.
The wife joined the Defence Force in January 1995 and accordingly it appears that her superannuation entitlements have accumulated from contributions made by her or on her behalf in the 13 years since then from the Defence Force, and the Reserve. It is noted that her employment was full time for more than 4 years up to June 1999. There has also been a period of nearly 2 years where she has worked about half time for the Reserve since separation.
The wife’s superannuation contributions since January 1995 have been from the equivalent of about 7 to 7.5 years of full time employment, of which the equivalent of about 4 to 4.5 years of full time employment occurred during the cohabitation.

HOMEMAKING

The wife did not give evidence about homemaking contributions. The Court accepts the husband’s evidence that when he was not away at the training course in Melbourne for 4 months, during cohabitation if the parties were living at home and the husband was at home, he would attend to outside duties such as lawn moving, weeding and gardening. His evidence is that the wife did the cooking, cleaning and washing. They shared washing dishes. They shared the vacuuming and bathroom cleaning. General maintenance of the home, once they moved from Western Australia, was done by the Defence Housing Authority.

FINANCIAL SUPPORT OF THE CHILDREN SINCE SEPARATION

The husband has since January 2004 paid monthly payments of assessed child support towards the financial support of the children. However, there is little evidence to quantify what he has paid. The first payment was $534.80, but there is no evidence of the period of the assessment at that rate, except that the husband in his affidavit of 21 December 2007 says after referring to that payment swore, “I have paid child support at the assessed rate since that time”.
However, in his Financial Statement of the same date he says he is paying child support of $212.95 per week. But in his affidavit of that date he says the current rate is $851.83 per month, and that translates to only $196.04 per week.
However, the wife concedes he is paying $200 per week in her financial statement sworn 19 September 2007 and in her affidavit of 25 September 2007 concedes he is paying $204 per week. This evidence by the wife involves admissions against interest.
The payments of child support by the husband is a contribution by him to the welfare of the children. If he leaves gaps in the evidence as to what he has paid, the court should adopt from the available interpretations of the evidence the one least favourable to him. (See J v J (1955) All E R 85 at 93 per Sachs J, as he then was.)
Accordingly the finding on the balance of probabilities is that the child support he has paid is as follows:
January 2004 to August 2007 @ $534.80 per month       $23,421.20
September to November 2007 @$884 per month
($204 per week)  $ 2,652.00
December 2007 to May 2008 @ $851.83 per month     $ 5,110.98
Total  $31,184.18
The wife does not give direct evidence of the cost of keeping the children or quantifying her expenditure attributable to them. I have referred to the figures for the costs of keeping Australian children by each of Lovering and Lee updated by CPI increases to December 2006 and the expenses that are not included in the Lovering figures.
On the balance of probabilities the costs of keeping each of the children (including their share of housing costs, transport costs (other than for spending time with the husband), child minding, medical and dental expenses, and holidays) for a family with one parent in full time employment earning about $1300 per week and the other working about 2 to 3 days per week has not since the parties’ separation been less than $120 per week.
Accordingly, doing the best one can on the evidence, the approximate contribution of the wife to the financial support of the children since separation is calculated as follows:
Cost of keeping the 2 children at least $1,040 per month ($120 each per week).
January 2004 to August 2007 @ $501.60 per month       $22,070.40
September to November 2007 @$156 per month $     468.00
December 2007 to May 2008 @ $188.12 per month     $ 1,129.02
Total  $23,667.42

CONTRIBUTIONS TO PROPERTY AND THE WELFARE OF THE FAMILY (Paragraphs (a), (b) and (c) of Subsection 79(4) of the Family Law Act)

The parties made the following joint and equal contributions:
· As joint owners of the W property for more than 6 years and as borrowers and mortgagors for the building society loan of $140,000; and
· Selecting and purchasing floor coverings for the home.
The applicant wife made the following additional contributions:
·    She brought into the relationship a motor vehicle worth about $2,000;
·    A contribution on the wife’s behalf by her new husband by way of her interest in the Nissan Patrol vehicle;
·    Contributions by her and by her employers on her behalf to her superannuation to establish her present entitlements and also the $8,213 after tax she received in 1999;
·    She assisted the husband to do landscaping work on the home; her after tax income from paid work during cohabitation;
·    Her homemaking contributions during nearly 7 years of cohabitation and her homemaking contributions for the children for nearly 4.6 years since separation;
·    The large majority of the parenting for nearly 9 years;
·    Financial support of the children since separation of at least $23,667.42.
The respondent husband made the following additional contributions:
·    He brought into the relationship his interest in the L property worth about $67,000 and some bank bonds worth about $3,100; a total of about $70,100. (The wife alleged he had some debts, but these were not quantified.);
·    A contribution on his behalf by his parents, who allowed the parties free board in their home for about 21 months to assist them to save for a home;
·    A contribution on his behalf by his parents in forgoing interest on the loan to him of $30,000 owing at the time cohabitation commenced for 3 years until it was repaid;
·    As owner of the L property for 3 years and as mortgagor of the property to provide additional security for the building society loan of $140,000 to the parties;
·    With some assistance from the wife he did work improving the home comprising laying some new lawn, installing some watering pipes in the garden, and watering and fertilising the lawns regularly;
·    A contribution of $355 in 2003 by his parents by way of paying for a security door for the home;
·    His parenting contribution over nearly 9 years , which is significantly less than the wife’s;
·    His homemaking contributions during nearly 7 years of cohabitation;
·    Contributions by him and by the Defence Force on his behalf to his superannuation to establish his present entitlements;
·    His after tax income from full time work for the whole of the cohabitation;
·    Mortgage repayments of about $1,549.46 paid by him after separation;
·    Child support payments of about $31,184.18 paid by him since separation;
·
His substantial expenditure on spending time with the children since separation, including particularly the costs since he moved to

Western Australia
;
Their contributions listed above as joint and equal are not substantial in the overall picture. The husband’s initial contributions were substantial and many times those of the wife. His superannuation contributions have been much greater than hers. His after tax earnings during the cohabitation were much more than hers. His contribution since separation by way of meeting the costs of implementing the time the children spend with him has been substantial. His payments of child support since separation have been greater than the wife’s contribution to their financial support over that period. The contribution by his parents of waiving interest on $30,000 for 3 years, paying for the security door and waiving payment of board are substantial. His payment of about $1,550 in mortgage payments since separation is significant too. His work on improvements to the home, although not a major item, was greater than the wife’s. He also made his contributions as owner, mortgagor and borrower in respect of the L property.
On the other hand the wife’s parenting contributions over nearly 9 years have been far greater than the husband’s. Her homemaking contributions have also been significantly greater than his.
Overall the husband’s contributions are significantly greater than the wife’s and the finding is that a just and equitable result based upon contributions would be ignore the contribution on her behalf in respect of the Nissan vehicle acquired after separation and to calculate their entitlements by applying a ratio of 60: 40 in the husband’s favour to the pool of property and liabilities, subject to the following adjustments:
·Adding back the amounts already paid to the parties from the proceeds of sale of the home ($150,000);
·Adding back all of the debts, as they have been incurred since separation ($202,910);
·Adjusting the value of the Toyota Camry to its value at separation ($7,000);
·Adding back the motor vehicle the husband retained at separation at its then value (Suzuki Vitara worth $3,0000);
·Deducting from the pool the assets acquired by each of them since separation, namely: interest in Newcastle area property $215,000, wife’s savings $1,000, wife’s interest in Nissan $12,000, husband’s savings $6,000, and husband’s Celica $8,600. (Total deduction $242,600.)
The notional pool would them be calculated as:
Present property and liabilities  $302,625
Add funds already distributed  $150,000
Add back post separation debts  $202,910
Adjust value of Camry to value when retained                   $    5,000
Add back Suzuki Vitara retained by husband  $    3,000
Subtotal$663,535
Less deductions  $242,600
Notional pool  $420,935
Applying the ratio of 60: 40 in the husband’s favour to the notional pool, the division of the notional pool would be $252,561: $168,374 in the husband’s favour and would be implemented as follows:
The husband would receive or have received:
Suzuki Vitara  $    3,000
Interim payment  $ 30,000
Superannuation   $199,542
Household contents  $    3,000
Bank bonds  $    5,000
Less amount from funds held by solicitors  $ 12,019
Net  $252,561
The wife would receive or have already received:
Toyota Camry  $   7,000
Interim distribution  $120,000
Superannuation  $ 25,362
Household contents  $    5,000
Balance of funds held by solicitors  $   11,012
Total  $168,374
The husband would have the following property and liabilities:
Husband’s superannuation   $199,542
Husband’s savings   $    6,000
Husband’s 1994 Celica motor vehicle     $     8,600
Husband’s household contents       $     3,000
Husband’s National Australia Bank Bonds     $     5,000
From joint funds held by Lees Lawyers $ 12,019
Total property   $234,161
Less post separation debts $   9,410
Net total $224,751
The wife would have the following property and liabilities:
Wife’s interest in Newcastle are home  $215,000
Wife’s savings   $    1,000
Wife’s half interest in Camry motor vehicle       $     2,000
Wife’s half interest in 1998 Nissan $ 12,000
Wife’s household contents $    5,000
Wife’ssuperannuation entitlement with Military Super              $    25,362
From joint funds held by Lees Lawyers           $   11,012
Total property  $ 271,374
Less post separation liabilities  $ 193,500
Net total$   77,874
(It should be noted that although the wife received an interim payment of $120,000 and used most of it on the purchase and improvement of the Newcastle area home, her equity in the property is only $25,000.)

MATTERS UNDER SUBSECTION 75(2) OF THE FAMILY LAW ACT

The relevant matters under the subsection are set out below.
The wife is 33 and the husband is nearly 40. They both have reasonable health.
A division of their property and liabilities based upon the findings as to contributions would see the husband with $224,751 and the wife with $77,874. Most of the husband’s property would be his superannuation entitlements. The wife’s superannuation would comprise about a third of hers.
The wife has no financial resource. The husband has accrued long service leave, entitlements, apparently from 16 years of service. It is not quantified, but is a substantial resource and he is planning to take it as paid leave and/or termination payment this year or next.
The husband’s weekly income would comprise $1,284 from his employment and interest on his bonds and savings. He has the capacity to continue his present employment. The wife’s weekly income appears to comprise on average $300 per week tax free from her employment, $5 interest on savings, $66 in social welfare benefits and child support of $196, which totals $567. The wife has the capacity to work full time in similar work to her present employment. Full time employment is not available in her present work.
The wife has the care and control of the 2 children under 18. In H’s case this can be expected to continue for more than 9 years and in R’s case 11 years. This is a significant responsibility, quite apart from their financial support.
The husband has commitments necessary to support himself amount to $705 per week. His superannuation contributions of $63 were not shown to be compulsory. He also pays child support of $196 for the girls and the expenses of them spending time with him, which he estimates at averaging about $200 per week over a year, but which, given the circumstances and the parenting orders proposed, are uncertain. His income exceeds his commitments for himself and child support by about $386 per week.
The wife’s commitments necessary to support herself and the children are about $768 per week. That includes about $330 in mortgage payments, which presumably is partly repayment of principal and not strictly a necessary commitment. Her commitments do not include any superannuation contribution. Her commitments of $768 exceed her income by $201 per week. She manages because the mortgage payments are paid from her new husband’s income.
Neither party has any responsibility to support any person other than the girls.
The wife is entitled to the social welfare support she receives.
Given the financial circumstances of the parties, it is reasonable that the wife be able to enjoy a standard of living that involves her working only part time in order to be more available for the children at other times.
The wife, by the roles she adopted in parenting and homemaking during the cohabitation and since, has indirectly contributed to the husband’s income and earning capacity by assisting him to maintain continuous employment, undertake overseas and war service, maintain and improve his work skills, and achieve promotion.
It was a marriage of more than 6 years and a cohabitation of 6 years and 9 months. The effect of the marriage on the wife’s career, earning capacity and income has been adverse. Because of her parenting role and the family moves for the husband’s postings, she has not been able to continue her employment with the Defence Force, has for periods been a full time parent and homemaker, and has generally since the birth of H, been available for part time work only.

There is a need to protect the wife in her need to undertake only part time work in school terms in order to maintain her parenting role.
The wife is living with her new husband and he provides financial support for her and the children.
The husband has an ongoing liability to contribute to the financial support of the children by payment of child support, presently assessed at about $196 per week. Under paragraph 75(2) (o) of the Act the court also takes into account that the wife has the responsibility to provide the balance of the children’s financial support.

SUBSECTION 79(2) OF THE FAMILY LAW ACT

Subsection 79(2) of the Family Law Act provides:
(2) 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.
The matters under subsection 75(2) that favour the wife are substantial and comprise:
·the much stronger position of the husband as to property and liabilities if orders were made based upon contributions alone;
·the husband’s substantial long leave entitlements;
·the husband’s much greater income and earning capacity;
·the wife has the future care and control of the 2 children under 18;
·the wife’s need to continue to work only part time in order to be available for the girls;
·the wife’s indirect contribution to the husband’s earning capacity and income; and
·the adverse effect of the marriage on the wife’s earning capacity and income.
The matters under the subsection that favour the husband are:
·    The husband meets all the costs of the girls spending time with him, including travel;
·    The husband provides more of the other financial support of the girls than the wife
·    The wife has remarried and her husband can provide some financial support for her; and
·    The wife’s entitlement to social welfare payments.
The matters that favour the wife far outweigh the matters favouring the husband. They support a substantial adjustment in the wife’s favour, which should be 20% of the present pool ($60,525). The just and equitable result is a division of the present property and liabilities in the ratio of $164,226: $138,399 in the husband’s favour.
The just and equitable way to implement this is for the wife to have in addition to the property and liabilities listed earlier and totalling $77,874, the balance of the funds from the sale of the home and a superannuation split from the husband’s superannuation for a base amount of $48,506.

______________________

Justice Mullane

Date: 7 May 2008

[2008] FamCA 325

7 May 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent