CASBOULT & CLOSE

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASBOULT & CLOSE

[2015] FCCA 1877

Catchwords:
FAMILY LAW – Final orders in respect of children and property – high conflict – children aged 16 & 13 – allegations children have been exposed to family violence – father alleges children alienated from him by mother – relevance of children’s views – allocation of parental responsibility – best interests – assessment of contributions – weight to be given to initial contribution of capital – assessment of other contributions – assessment of section 75(2) factors – just and equitable.

Legislation:

Family Law Act 1975, ss.4(1); 60B; 60CA; 60CC; 61DA; 64B; 65DAA; 65DAC; 65DAE; 68LA; 79; 75(2)

Evidence Act 1995 (Cth), s.140

Federal Circuit Court Rules, r.24.03

Casboult & Close [2013] FMCAfam 130
Casboult & Close (No.4) [2013] FCCA 943
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
Bartel & Schmucker (No.3) [2012] FamCA 1094
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
Watson & Ling [2013] FamCA 57
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
In re: Watson: ex parte Armstrong (1976) FLC 90-059
Mallett & Mallett (1984) FLC 91-507
Fox v Percy (2003) 214 CLR 118
Briginshaw v Briginshaw (1938) 60CLR 336
Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Luciano & Luciano [2000] FamCA 401
Rosati v Rosati (1998) FLC 92-804
NHC & RCH (2004) FLC 93-204
Ferraro & Ferraro (1992) 16 FamLR 1
Mallett & Mallett (1984) 156 CLR 605
Pierce v Pierce (1999) FLC 92-844
MH & MZ (2005) FLC 93-226
In the Marriage ofSpiteri (2005) 33 FamLR 109
Kane & Kane [2013] FamCAFC 205
Steinbrenner & Steinbrenner [2008] Fam CAFC 193
Ferguson & Ferguson (1978) FLC 90-500
Clauson & Clauson (1995) FLC 92-595

Applicant:

MS CASBOULT

Respondent:

MR CLOSE

File Number:

ADC 2567 of 2010

Judgment of:

Judge Brown

Hearing dates:

15, 16 & 17 January 2014; 7 March 2014; 11 & 12 December 2014 and 1 May 2015

Date of Last Submission:

14 April 2015

Delivered at:

Adelaide

Delivered on:

9 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Nelson & Co

Counsel for the Respondents:

Mr Jordan

Solicitors for the Respondents:

Diane Myers Pty Ltd

Counsel for the Independent Children's Lawyer:

Mr Boehm

Solicitors for the Independent Children's Lawyer:

J Richard Croft

ORDERS

The wife have sole parental responsibility for the children X born (omitted) 1999 and Y born (omitted) 2002.
The children live with the wife.
The children spend time with and communicate with their father at times to be agreed between the parties but subject to the wishes of the children concerned.
The wife advise the husband, as soon as is reasonably possible, in the event that either child suffers a serious accident or is subject to a serious medical emergency or illness requiring hospitalization.
The husband is authorized by these orders to forward to the wife for delivery onto the children, cards and appropriate presents for the children on the occasion of Christmas and their respective birthdays.
The wife is directed to forward copies of each of the children’s school reports and school photographs to the husband as soon as such items are available to her.
The appointment of the independent children’s lawyer is hereby discharged.

In full and final settlement of all claims for settlement of matrimonial property:

The proceeds of sale of the real properties formally owned by the parties located at Property D1 & D2, together with all interest generated on such proceedings, be divided as follows, after the deduction of the sum of $9,976.00 from the husband’s portion, which is to be added to the wife’s portion:
(i)Fifty-three percent (53%) to the husband;
(ii)Forty-seven percent (47%) to the wife.
Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)the furniture and furnishings in his possession, power and control;
(b)the superannuation entitlements standing in his own name;
(c)his personal effects.
Including but without limiting the effect hereof, the wife shall retain for his sole use and benefit absolutely free from any further claim or demand of the husband:
(a)the furniture and furnishings in her possession, power and control;
(b)any motor vehicle in her possession;
(c)the superannuation entitlements, long service leave, annual leave and any other work related benefits standing in her own name;
(d)her personal effects.
All applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2567 of 2010

MS CASBOULT

Applicant

And

MR CLOSE

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Casboult “the wife” and Mr Close “the husband” are the parents of Z born (omitted) 1995; X born (omitted) 1999 and Y born (omitted) 2002.
The wife commenced these proceedings on 8 July 2010. That they have been on foot for a period of around five years is attributable to delays relating to the husband’s poor health and other unforeseen exigencies, but primarily to the intransigence of each of the parties and the intensity of the animosity between them.
The proceedings relate to parenting issues in respect of X and Y and the division of matrimonial property. These children have been independently represented in the case by Mr Croft, an experienced Adelaide solicitor.
Mr Croft briefed Mr Boehm, a barrister, to appear at the final hearing of the matter in January and December of 2014. Both Mr Croft and Mr Boehm have a statutory responsibility to consider the evidence available to them and then form a view as to the outcome, which they believe will best serve the interests of the children concerned. They are then required to advocate that view to the court.[1]
[1] See Family Law Act 1975 at section 68LA(2)
At trial, it was clear to Mr Boehm that X and Y are currently estranged from their father and spend no time with him whatsoever. Regrettably, a process of therapeutic counselling was not useful. Ms K, formerly a family consultant with the court, wrote in October of 2013 as follows:
“It is not likely that making the boys spend time with Mr Close against their wishes is in their best interests and may serve to ruin any chance of them developing a better relationship with them once the court matter has been concluded and the acrimony has hopefully subsided.”[2]
[2] See family report dated 14 October 2013 of Ms K at [41]
It is the husband’s view that the wife has engineered this situation out of spite for him. Ms K believed that the children had certainly taken their mother’s side in the post-separation battle, with either their mother’s tacit or active support. I have little doubt that the extreme and protracted conflict between the parties has had extremely deleterious emotional consequences for all the children, including Z, who of course is a child no longer.
On the other hand, it is the wife’s position that X and Y, as Z did before them, have formed their own view of their father and found him wanting as a parent, particularly because they view him as a violent and volatile person, who has utter contempt for their mother, whom they love. In all these circumstances, it is the wife’s position that Mr Close is a poor male role model, for the children, whose views should be respected in relation to their disinclination to spend time with their father.
In all these circumstances, Mr Boehm submits that the court should make orders for the children to live with their mother; that she (the wife) should have sole parental responsibility for them; and that X and Y should spend time with their father, as they wish to do so. At present, that would be no time at all. Following the failure of the therapeutic counselling, Mr Boehm has no proposals or strategies to change this situation.
The wife agrees with these orders. The husband seeks orders that the court should make at least some form of order, which would allow some interaction between him and the children, at some stage in the future. He does not advocate what this should be, but in effect, seeks a ray of hope from the court, in any orders made in respect of X and Y. He also seeks some sense of involvement in the children’s lives and proposes that he and Ms Casboult should share parental responsibility for the children.
This is a sad and confronting case. Any case involving the estrangement of a child from one of his parents is necessarily sad. I do not doubt Mr Close’s love for his children. On any view, all concerned, including the children, have paid a heavy price, as a consequence of these difficult, bitter and protracted proceedings.
The children’s issues are not the only troubling and calamitous aspect of the case. The parties are not wealthy people. Neither is in the regular paid workforce and both face significant health issues in the future. To put it bluntly, neither party can afford these proceedings, which are patently not in their objective interests. However, the parties; their legal advisors; and indeed the court; have been powerless to prevent or mitigate the financial and emotional catastrophe unfolding.
The parties’ major asset is the proceeds of sale of two adjoining properties, located at Property D1 & D2, which were controversially sold as a consequence of an order made by me, on 19 February 2013. The sum realised, after payment of monies secured against them, was $628,636.82.
I provided lengthy reasons as to why it was appropriate and fair for these properties to be sold.[3] The orders were subject to appeal in the Family Court, but the sale nonetheless proceeded, being finalised on 28 November 2013.
[3] See Casboult & Close [2013] FMCAfam 130
The realisation of the monies, represented by the properties concerned, did not assist the parties to reach any agreement. Rather, it seems to have intensified the dispute between them. The monies concerned, after some disputation, have been invested, in an interest bearing account, which generates modest income. Both parties need to access the funds, to plan their respective futures and possibly acquire other accommodation.
The wife seeks that the parties’ assets should be divided 60/40 percent in her favour. The husband seeks a 65/35 percent division, but in his favour. Besides the proceeds of sale, there is much controversy about what other assets should be included in the pool and how the bottom line should be calculated.
There are also issues arising about the value to be attributed to individual items of property and whether there should be a notional add back in respect of items of property, which no longer exist and debts which have been discharged.
However, the calculation of the parties’ pool is ultimately made in dollar terms, it is clear that much of whatever sum is allocated to each of the parties will be consumed in legal fees. As a consequence, both the husband and wife face an uncertain financial future.
In order to understand why these proceedings have taken so long to reach this point, it is necessary to outline the history of the proceedings to date. The various documents filed by the parties comprise some six thick files. The case has been listed for final hearing on four previous occasions but was not completed. Regrettably, it has been beset by mishap after mishap.

Background

The husband was born on (omitted) 1965. The wife was born on (omitted) 1967. They share an (country omitted) heritage, but both were born in (omitted). The wife left school at sixteen and has no specific qualifications.
She has worked as a (occupation omitted) and more recently as a (occupation omitted) in a (employer omitted). She was diagnosed with breast cancer in (omitted) of 2011, which has significantly impacted on her health and work capacity.
The husband has been a disability pensioner since 2003, after having suffering a heart attack in 1999. He suffered a further heart attack in early 2013 and has had bypass surgery. Prior to his first cardiac incident, he was employed as a (occupation omitted) and (occupation omitted) in the (omitted) industry.
The parties have known each other for a very long time. They met in 1987 and dated until their marriage on (omitted) 1993. They are now divorced, on the wife’s application.[4] An order for divorce was made on 22 November 2011.
[4] See application for divorce filed 17 June 2011
However, prior to that date, a dispute arose between the parties as to their actual date of separation. In her application, the wife asserted the date was 6 December 2004. In a response filed by the husband and personally prepared by him, he asserted that the date was 19 April 2010.
In his response, the husband further indicated that he wished the application for divorce to be dismissed because of the following factors:
·The husband would like to see how the wife’s cancer progresses before divorcing the wife;
·The husband is concerned about the children’s reaction, should the parties divorce.
These objections were insufficient to prevent the making of the divorce order in question. In any event, the husband withdrew his response to the divorce and it was not necessary for the issue of the date of the parties’ separation to be formally adjudicated. However, they speak of the emotional sensitivity of many issues arising in this case.
They are also indicative of a significant level of uncertainty and controversy surrounding the nature of the parties’ relationship with one another, whilst they occupied two distinct, but adjoining properties, at Property D1 & D2.
In 1984, the husband purchased his first real property located at Property R. Later, in 1987, he purchased another property at Property W. These properties were sold prior to the parties’ marriage.
Property D2 was purchased in 1993, for the sum of $134,000.00, prior to the parties' marriage. It was registered in the wife’s sole name, so she could obtain a first home owner’s grant. The wife contends she contributed savings of $23,000.00, which the husband disputes. He contends that the proceeds of sale of the Property R and Property W properties financed this purchase, along with a worker’s compensation payment of $50,000.00, which he received in 1987.
In 1995, the adjoining property at Property D1 was purchased for $127,000.00. It was registered in the husband’s sole name and was financed by funds advanced by the (omitted) Bank, in the sum of $84,000.00 and again the husband asserted he provided other savings attributable to him from the sale of the two earlier properties and his compensation payment to complete the purchase.
Accordingly, it is the husband’s position that his initial contribution of funds enabled the parties to buy their two most significant assets. This is the main factor, which supports his contention that the parties’ marital estate should be divided 65/35 percent in his favour.
In addition, the husband characterises himself as a stay at home dad, certainly since his heart attack in 2003. He contends that he was central to the care of the children, prior to mid-2010, which he asserts is the date on which the parties actually separated on a final basis.
The wife accepts that the husband made significant financial contributions, at the beginning of the marriage, but not as great as he contends. It is also her case that she made significant financial and non-financial contributions over the course of the parties’ marriage and afterwards, through her employment; and as a parent and home-maker; which are significantly greater than those of the husband, whom she categorises as being absent from the children’s lives.
This is not an end to issues in contention between the parties. It is the wife’s position that, throughout the marriage, she was subject to violent, abusive and controlling behaviour from the husband. In addition, she asserts that the husband has engaged in controlling financial behaviour of her since the parties separated. She also asserts that the husband has engaged in criminal activities, including the cultivation and sale of cannabis.
On the wife’s case, this controlling type of behaviour led to the parties’ separation, on numerous occasions, during their marriage which on her case ended in 2004. It is also her position that this resulted in her undertaking the vast majority of the parenting of all three children, certainly since 2004 onwards and it is this behaviour which now explains the current attitude of Z, X and Y towards their father.
The wife asserts the parties first separated in mid-1997, when the husband threatened her with a shotgun. However, the parties resumed their relationship a few months later. The wife had commenced proceedings in the Family Court but discontinued them.
Thereafter, the wife asserts that the parties finally separated on 17 December 2004. This was the date on which she applied to the family assistance office for the family tax benefit,[5] at the same time she applied for a sole parenting pension.
[5] See annexure C1 to the wife’s affidavit filed 29 April 2011
The form completed at the family assistance office on 17 December 2004, indicates that the wife’s address was Property D2 and the children lived with her for 86% of the time. Mr Close is nominated as the parent with 14% care of the children and his address is indicated as Property D1.
Both parties have apparently signed the form in question, beneath a declaration that the information contained in it is correct. Mr Close has consistently asserted that his signature is a forgery, which he attributes to Ms Casboult.
In early 2012, the husband raised with Centrelink his concern that the wife had committed some species of social security fraud as a consequence of falsely claiming that she had separated from him in late 2004.
It is the wife’s position that from 2004 onwards, she and the children lived at Property D2 and the husband lived at Property D1, with the two operating separate households. The husband refutes this assertion. He says that the parties lived as a family, at Property D2 until the parties separated in late April 2010, when he moved into Property D1, which had previously been rented.
In March of 2009, the wife completed a (course omitted). This led her to commence part-time casual employment at the (employer omitted), in (omitted). She worked three night shifts per week, during which time she asserts that the husband would attend at Property D2 and babysit the children.
It is the wife’s case that her relationship with the husband, already difficult, deteriorated significantly during late 2009 and early 2010. She asserts that the father was cultivating marijuana at the time and his relationship with Z was particularly poor. She also asserts that the husband had access to a firearm, which he showed to Y and X, at the shed at Property D1.
On the wife’s case, this latter incident was the catalyst for her decision to vacate Property D2, notwithstanding her ostensible legal ownership of it and seek alternate residential accommodation which would be closer to her place of employment. On her case, the parties were long separated but she felt overwhelmed by the husband’s constant intrusions into her life and his apparent refusal to accept that she had moved on from him.

It is her case that the husband did not react well to her decision and verbally threatened her. She summonsed police to the property where a large marijuana plant was located and removed by police.
In mid-May 2010, the wife moved to rental accommodation in (omitted). X and Y continued to attend (omitted) Primary School. This was the background to the wife commencing these proceedings in respect of both financial and children’s issues on 8 July 2010.
a)Events prior to the first hearing (May 2011)
This application was first listed before the court on 28 July 2010. The husband had not as yet filed his answering documents. On this occasion, the parties were able to reach interim agreement on arrangements for all the children, including Z, who was then aged fifteen years.
It was agreed that the children would live with their mother and the boys would spend alternate weekends and the intervening Friday night with their father. Z was free to accompany them, subject to her wishes. The parties were referred to a child inclusive family dispute resolution conference which took place on 27 August 2010.
By this stage it was apparent that Mr Close aspired to an equal time arrangement for the care of X and Y, which was vehemently opposed by Ms Casboult. In this context, the family consultant concerned reported to the court on 27 August 2010, that there was a high level of conflict between the parents which was not likely to be helpful for the children’s ongoing emotional stability.
So far as the individual children were concerned, Z was reported as being angry and critical of her father. X and Y were more neutral, X in particular being very guarded and careful not to say anything negative about his parents. In all the circumstances, the family consultant was not in favour of an equal time regime when she saw the family.
In September of 2010, standard orders were made for the parties to attend a conciliation conference and for Property D1 and Property D2 to be valued. Mr C, a licensed valuer, completed the necessary valuations on 8 November 2010. He valued the properties at $570,000.00 and $405,000.00 respectively.[6] However, if the properties were sold together, he believed that they would achieve a total sum of $1,120,000.00 because of their development potential. As matters ultimately transpired, the properties sold for significantly less than this sum.[7]
[6] See wife’s affidavit filed 29 April 2011 at Annexure C7 & 8
[7] Property D1 sold for $474,425.00, see Exhibit A; Property D2 sold for $400,575.00, see Exhibit B. A total sum of $875,000.00.
The conciliation conference did not assist the parties to reach agreement. On this basis, on 29 November 2010, the parties’ competing applications were fixed for final hearing on 16 and 17 May 2011 (the first final hearing). In order to assist the court to reach an appropriate outcome, it was also ordered that a family report be prepared to be released on or before 4 March 2011 (the first family report).
The first family report was prepared by Mr B, a clinical child psychologist. In his report, dated 3 March 2011, Mr B wrote as follows:
“The assessment process highlighted to the writer that both parents love and care for their three children and very much want to maintain a strong and close parent child relationship. What stood out far more to the writer was the inability for both parents to keep the children distanced from their ill feeling toward each other, which has resulted in the children being exposed to high levels of conflict between the parents. Of great concern to the writer is the level of stress this has placed on the children, in particular X and Y, as evidenced by the level of stress observed during the interview, and their level of guardedness when responding to questions. All children, by way of statements or by way of observed behaviour during the interview, made it very apparent to the writer that they felt very uncomfortable with the degree of conflict between the parents and wished for this to cease.”[8]
[8] See family report dated 3 March 2011 at [37]
At this stage, Mr B regarded Z as a confident and strong-willed teenager, who had formed her own antipathetic view of her father, which had almost certainly been influenced by her mother’s strongly negative view of Mr Close.
On the evidence available to him, including his interviews with the children, Mr B was not in a position to resolve the issue of who had been the children’s primary carer prior to separation. It was his view however that it was more likely than not that both parents had played a significant role in the children’s lives prior to separation, although Z’s relationship with her mother was much stronger.
Mr B was somewhat critical of the egocentric attitude of both parents in respect of the children. He assessed both the husband and the wife as wanting what each perceived as being fair for them as a parent rather than what was best for the children.
In this context, Mr B viewed X and Y as being emotionally torn between their parents and not wishing to voice any view which might upset them. Mr B found it hard to elicit from either X or Y any strong view regarding any preference to spend time with either of their parents.
In all these circumstances, particularly the extreme of conflict between the parents, Mr B thought a week about arrangement was unlikely to be successful. Rather, he recommended as follows:
·The parents have equal shared parental responsibility;
·X and Y live predominantly with the mother and spend time with the father for half of each school holiday period and for five nights per fortnight, during school terms;
·Z live with the mother but be at liberty to choose the time she spends with her father;
·All three children attend an appropriate course of post-parental separation counselling;
·The parties refrain from any denigration or abuse of the other.
It is the wife’s case that, following April 2010, the husband was repeatedly verbally abusive and aggressive towards her. The husband asserts the same of the wife. Both parties deny that they behaved inappropriately. Wherever the truth lies, I am satisfied that this was a traumatic time, for all concerned, including the children.
It also seems to me to be probable that the parties themselves had little, if any, emotional or intellectual tools to deal with the powerful emotions precipitated by their situation and resulting separation, which had been characterised by uncertainty and misunderstanding for many years.
In this context, in her first trial affidavit, the wife deposed as follows:
“Despite the husband having Property D1 as his primary residence he would spend a considerable amount of time over at my home and had a key to my property. He would regularly attend at our home to use the computer and, as a consequence, he paid our phone bill for the computer connection. I say that since separation the husband has slept at his home at number Property D1 and would rarely share meals with us and, occasionally, crash on the lounge in my home.
The husband continued to pay the utilities, rates and house insurance for both properties and I paid for my and the children’s food, clothes, educational expenses and other living costs. I would pay my own mobile phone account, car registration and insurance. The husband did not pay assessed child support as he was contributing towards our household expenses.”[9]
[9] See wife’s affidavit filed 29 April 2011 at [32]-[33]
On the other hand, it is the husband’s case that Property D1 was rented to a gentleman known as Mr I from 2004 to 2009. Mr I did not give evidence in these proceedings. In addition, the husband has provided copies of various invoices and other documents which were sent to him at Property D2. These include documents from the (omitted) Bank, which had refinanced the mortgage on Property D2 in 1999.
What is clear to my mind, is that the parties had a great deal to do with one another and the children with each of them. From the wife’s perspective, the relationship was frequently unhappy. Whether this feeling was clearly conveyed to the husband is unclear. In my view, the parties’ relationship during this period was marked by dysfunction and ambivalence. However, both were knowingly content to assert to Centrelink, for social security purposes, that they were separated.
In early December of 2010, the tensions between the parties appear to have come to a head. At the time, the wife asserts that she was driving a Mazda motor vehicle which was registered in the husband’s name, but which she had been using particularly to go to work for the previous two years. In her application for property settlement, the wife had indicated that she wished to retain this vehicle as part of her settlement.
The wife asserts that the vehicle in question was removed from the carpark of the (employer omitted) where she was working at the time during the evening of 2 December 2010, when it was towed away. As such, the vehicle was not available to the wife when she completed her shift at 10:30pm. She believed that the husband had removed the vehicle because she had the only key to it.
In these circumstances, she filed an urgent application on 7 December 2010, seeking the return of the vehicle. This was dealt with by the court on 15 December 2010, on which occasion the husband was ordered to deliver the motor vehicle to the wife and execute all necessary documents to transfer its ownership to her. The husband conceded that he had taken the vehicle, but asserted that he was legally authorised to do what he did.
The husband complied with the order of the court to return the vehicle. But on the wife’s case, parked the vehicle across the driveway of her home and left it unsecured. It is also her case that the engine and the transmission of the car had been damaged, rendering it unserviceable. She asserts that these actions were done maliciously by the husband. She was advised that it would cost approximately $3,000.00 to repair the transmission.
The husband denies that he damaged the vehicle out of spite. He asserts that he was advised by the police that he was entitled to retrieve the vehicle as it was registered in his name. Why he elected to do so at night whilst the wife obviously had a need for it, has not been explained by him to the court. The justification of his behaviour appears fanciful and self-serving to me.
I do not find it necessary to resolve the rights and wrongs of this incident. It is provided as a further example, if any was needed, of the mistrustful and destructive relationship between the parties which has been a feature of this acerbic and protracted litigation.
The wife was diagnosed with breast cancer on (omitted) 2011. She underwent surgery approximately a fortnight later. She was told that traces of cancer remained in her lymph node, which was removed in a second operation on (omitted) 2011. Thereafter, it was necessary for her to undertake a regime of both chemo and radiotherapy.
As a consequence of her illness and resulting treatment, the wife was unable to work for approximately two months and was forced to claim sickness benefits. Her finances were extremely stretched, as her benefits were $600.00 per fortnight and her rent was $660.00 per fortnight. She continued to receive a family payment of $720.00 per fortnight. She borrowed moneys from her family to fund her medical treatment as she did not have private health insurance.
When the wife returned to work in mid-March of 2011, she was forced to reduce her hours. The wife’s radio and chemotherapy concluded in (omitted) 2011. She lost a significant amount of weight. For obvious reasons, 2011 was a very stressful year for the wife because of her illness and these proceedings which were unable to be resolved.
b) The first hearing
The trial of the parties’ competing applications came on before Sexton FM (as Her Honour was then) on 10 and 11 May 2011. On the first day of the trial, with the assistance of their respective counsel, the parties were able to reach final agreement in respect of arrangements for Z, X and Y.
In essence, it was agreed that the three children should continue to live predominantly with their mother. So far as Z was concerned, she was to spend time with her father subject to her wishes. In relation to X and Y, they were to spend time with their father during school terms on alternate weekends and for two overnight periods in the other week of each fortnight, as well as for regular periods during the school holidays.
The orders were silent in respect of the allocation of parental responsibility between the parties. It was noted however that it was agreed between the parents that X and Y should complete their primary education at (omitted) Primary School.
Other orders were inaugurated with the apparent intention of minimising conflict between the parties. These included the inauguration of a communication book and the use of school for handovers whenever possible. The parties also agreed to injunctions restraining them from harassing or denigrating the other.
c) Events prior to the second trial (March 2012)
Regrettably, the property proceedings could not be finalised. Around the date of the first trial the wife discovered that the husband had taken out a mortgage in favour of the (omitted) Bank in respect of number Property D1. She discovered this fact when she instructed her solicitor to search the relevant title. The husband himself had not disclosed the mortgage.
The wife raised the mortgage in her trial affidavit.[10] The husband responded to this issue in his trial affidavit filed 6 May 2011, in the following terms:
“I say that I took out an equity loan of $300,000.00 which has been drawn down $60,000.00 because I lent this money to my cousin Mr D. We have an agreement that he will repay the money on demand.”[11]
[10] See wife’s affidavit of evidence filed 29 April 2011 at [25]
[11] See husband’s affidavit filed 6 May 2011 at [108]
The discovery of this loan caused the wife and those advising her some disquiet. Regrettably, Sexton FM was not in a position to complete the property aspect of the trial which she refixed before herself on 29 and 30 March 2012 (the second trial).
In these controversial circumstances, Sexton FM made orders to the following effect:
·An injunction issued restraining the husband from dealing with either Property D1 or Property D2 without the wife’s consent;
·The husband be restrained from drawing any further moneys from the (omitted) Bank mortgage secured against Property D1;
·The husband make the necessary demand to recover the moneys allegedly lent to Mr D;
·The husband make full discovery on oath of the following documents:
ØDocuments relating to the (omitted) Bank loan;
ØDocuments relating to the loan agreement with Mr D;
ØHis tax returns since 1 December 2004;
ØHis superannuation;
ØDetails of his share transactions and share holdings;
ØCorrespondence with Centrelink since 1 December 2004;
ØDetails of his motor car holdings;
ØSettlement statements in respect of the sale of the Property W and Property R properties.
ØThe parties sell the Mazda motor vehicle.
ØThe parties arrange for the various motor vehicles in their respective possessions to be valued;
·The husband pay the wife from the (omitted) Bank loan, the sum of $70,000.00, by way of partial property settlement, with the amount advanced “to be brought to account in such way as this court deems just and equitable at trial.”[12]
[12] The full text of these orders is set out at paragraph 25 of Casboult & Close (2013) FMCfam 130
Although I did not make the orders in question, there objective appears apparent. Sexton FM directed that the husband attend to disclosing full details of and documents relating to his financial situation. By necessary implication, it was the view of both the wife and the court that the husband’s level of disclosure, up to this stage, had not been satisfactory.
Notwithstanding the circumstances, Sexton FM apparently considered that there was some utility in the parties being given a further opportunity to engage in a conciliated resolution of the proceedings. On this basis, the parties were referred to a further financial mediation conference on 11 August 2011. This conference did not take place, due to Ms Casboult’s radiotherapy commitments, which obviously had priority over these proceedings.
On 9 June, the husband filed an affidavit in which he purported to respond to the orders of 11 May 2011, particularly in respect of the (omitted) Bank loan. However, he did not supply a copy of the actual application form completed by him in respect of the loan.
The husband disclosed modest superannuation with (omitted) in an amount of $8,404.58; shares worth approximately $53,000.00, as at 13 May 2011 and details of a number of motor vehicles purchased by him, including an (vehicle omitted); a Holden (omitted); an (vehicle omitted) coupe.
In respect of the settlement of the properties previously owned by him at Property R and Property W, he deposed as follows:
“I say that I have attempted to obtain settlement statements for the Property R and Property W properties but have been unable to as the transactions took place too many years ago. … I am unable to obtain settlements from that far back.”[13]
[13] See husband’s affidavit filed 9 June 2011 at [18]
In his affidavit, Mr D deposed that in April 2010, the husband had agreed to lend him some money to pay off a (omitted) Bank Loan. He indicated that he had recently paid the moneys back, other than an amount of $47,181.00.
Those advising the wife directed a subpoena to the (omitted) Bank on 30 June 2011. This required production of the application form completed by the husband, in respect of the (omitted) Bank loan registered over Property D1. These documents were produced on 25 July 2011.
In an affidavit filed on 16 March 2012, the wife deposed what these documents disclosed and provided a copy of the application to the court.[14] In the application, the husband disclosed a gross monthly salary of $5,750.00 and indicated that he had real property assets worth $630,000.00; cash assets in the form of shares or bonds worth $50,000; motor vehicles worth $20,000.00; cash of $5,000.00; and other assets worth $80,000.00. This totalled $785,000.00. The husband indicated that his monthly expenditure came to $1,105.00.
[14] See wife’s affidavit filed 16 March 2012 at [37] and annexure E
The wife deposed to being concerned that the husband had been able to borrow such a significant sum of money whilst his only apparent source of income was a disability support pension. Notwithstanding the husband’s affidavit of 9 June 2011, it remained the wife’s position that the husband had not fully disclosed his financial circumstances.
In these circumstances, it is not surprising that the further financial mediation conference ordered by Sexton FM which took place on 11 November 2011, did not resolve proceedings. During this period, Sexton FM retained control of the relevant court file and managed proceedings from the Sydney registry.
On 2 September 2011, the wife filed an application in a case seeking to enforce the order of Sexton FM made on 11 May 2011, that she receive an interim or partial property settlement in an amount of $70,000.00, to be funded from the (omitted) Bank loan secured against Property D1.
She deposed that she had received the sum of $47,181.00, which was the amount repaid by Mr D and therefore she sought the sum of $23,000.00 to bring her interim payment up to $70,000.00. Sexton FM made an order to this effect on 7 September 2011. In addition, following the failed conciliation conference, Her Honour confirmed the second trial dates of 29 & 30 March 2012. The parties both filed updating affidavits and statements of financial circumstances in respect of this trial.

Regrettably, the second trial did not take place either as Sexton FM fell ill. Regrettably, the reasons for which I am unable to discern, no clear arrangements were made in respect of re-fixing the hearing, it apparently being anticipated that Her Honour would conclude the matter when she regained her health.
d) Events prior to the third trial (September 2012)
On 24 April 2012, the wife filed a further application in a case seeking orders that the husband pay the mortgage payments and accruing arrears in respect of the mortgage to the (omitted) Bank which was secured against Property D1.
In her affidavit filed in support of this application, the wife deposed that she continued to live in rental premises in (omitted). She confirmed that she no longer occupied either Property D1 or D2 and that both such properties were in the control of the husband.
In these circumstances, it was her position that the husband should meet the recurrent mortgage payments arising in respect of the mortgages secured against the properties, particularly Property D1 which was registered in her sole name.
The wife deposed that she had received a statutory default notice from the (omitted) Bank, which indicated that the mortgage was in arrears. As at 5 April 2012, an amount of approximately $1,500.00 was outstanding. In addition, the wife had received a letter of demand from a debt collecting agency indicating that the water rates in respect of number Property D2 were also in arrears.
This application was listed before me on 3 May 2012. At this stage, I became aware that there was no specific final hearing date allocated. In addition, after discussion with the chambers of Sexton FM, it also became apparent that Her Honour would not be able to return to Adelaide to conclude the case.
In these circumstances on 3 May 2011, I re-fixed the property aspects of the case for a further final hearing on 20 & 21 September 2012 (the third final hearing). The wife’s application in a case was listed for further hearing on 16 May 2012 and the husband was given an opportunity to formally respond, which he did on 14 May 2012.
In his supporting affidavit, Mr Close deposed that the mortgage repayments, together with the equity loan secured against the two properties concerned amounted to $560.37 per fortnight. He deposed that his other essential recurrent expenses including food, electricity, phone, water and council rates amounted to $670.83. In these circumstances, he deposed as follows:
“I say that I have had no capacity to keep up with the full mortgage payments due to the fact that I am on a disability pension receiving approximately $818.00 per fortnight. … My liabilities are $1,231.20 which far outweighs the pension of $818.00 which I do receive.”[15]
[15] See husband’s affidavit filed 14 May 2012 at [8]-[10]
At this stage, Mr Close also indicated that he was currently living in Property D2 as Property D1 was unliveable. At this stage, he also raised his preferred outcome in the case, which was to retain one of the properties as a portion of his property settlement and for the other property to be sold individually. As such, he was opposed to the selling of both properties together, for development purposes, so that the premium price could be obtained.
In addition, at this stage, Mr Close further deposed that he was entering into discussions with the (omitted) Bank to secure some form of moratorium on the mortgage payments required on the basis of hardship. He was confident that these discussions would be fruitful. It was therefore his position that the wife’s application was unnecessary.
On 16 May 2012, I formed the view that there was limited scope for the court to adjudicate the various issues raised by each of the parties concerning how their debts were to be managed and what approach should be taken to the distribution or realisation of Property D1 and Property D2 until the final hearing, which was around four months away. Although it was difficult to untangle the parties’ financial affairs, it was nonetheless clear that neither was in a strong financial position.
At this stage, the wife expressed her frustration that she was living in rented accommodation with the parties’ children, whilst the husband retained control of the vast majority of the parties’ marital assets. For these reasons, it was her obvious preference that both properties be sold in order to secure the best possible price. She was concerned that if this did not occur, she might suffer prejudice as the husband was unlikely to have significant borrowing capacity.
In these circumstances, although well aware of the significant and growing animosity between the parties and their respective levels of impecuniosity, I confirmed the hearing but directed the husband pay all outgoings in respect of the properties concerned.
I elected to do this because he was occupying the properties; wished to retain one of them; and had indicated that he was in negotiations with the bank to prevent foreclosure. I was however concerned about the apparent gathering financial storm which surrounded the parties.
Regrettably, the third final hearing did not occur. This had been listed before Baumann FM (as he was then), as I was on long service leave at the time. On 14 September 2012, the husband filed an application in a case seeking the vacation of the trial. In an affidavit filed in support of his application, he deposed as follows:
“I say that further to this, Centrelink have commenced investigations in to the date of separation between myself and the mother. They have documents where the mother has forged my signature.
It is my understanding that Centrelink intend to charge me, and charge the mother and demand the repayment of the overpayments that have been made to us due to the incorrect date of separation being supplied to them and that this amount is in excess of one hundred thousand dollars.
I am seeking the trial date be adjourned to enable Centrelink to carry out their investigation and so that any money which is to be paid back to Centrelink can be accounted for from the net asset pool. Particularly as I was unaware that the mother had advised Centrelink that we separated in 2004.”[16]
[16] See husband’s affidavit filed 14 September 2012 at [6] – [8]
In addition, the husband indicated that he wished to call Mr D to give evidence, particularly concerning the moneys borrowed against the parties’ real property. It was further the husband’s position that Mr D would be interstate at the time of the hearing and therefore unavailable to give evidence.
As matters have ultimately transpired, Mr D has filed no further affidavit evidence and was not called by the husband. The relevance of his evidence, at this juncture, appears to me to be highly questionable.
The application was made returnable before Baumann FM on 18 September 2012. For reasons which are not readily apparent to me, the husband did not attend court on this occasion. In these circumstances, the case was adjourned to the following afternoon and the husband was directed to appear.
The husband was also directed to sign all necessary documents, as required by Centrelink, in order for the wife to be provided with the applicable documents relating to Centrelink’s apparent investigation of welfare fraud. It being the wife’s apparent position, at this stage, that the complaint originated with the husband and was maliciously motivated.
On 19 September 2012, Baumann FM vacated the hearing scheduled for 20 & 21 September. This order was not opposed by Ms Casboult’s counsel. No further hearing date was scheduled as it was unclear to the parties at the time how long Centrelink’s investigations were likely to take. In these circumstances, the proceedings were adjourned until 22 November 2012.
e) Events prior to the fourth trial (January 2013)
On 13 November 2012, the wife filed a further application in a case in which she sought a further trial date and significantly in the interim pending trial, that the husband vacate number Property D2 and that this property, together with Property D1, be placed on the market for sale forthwith. In support of this application, she deposed that she was suffering extreme financial stress.
In particular, the wife deposed that her fortnightly rent was $680.00, whilst her wages, from the (employer omitted), amounted to $670.00 per fortnight. It was her evidence that she had been forced to reduce her hours of work due to the residual effects of her breast cancer treatment. She had used up her sick leave entitlements and been compelled to take time off work, without pay. In addition the Centrelink investigation had caused her a significant level of emotional stress.
It was further the wife’s position that the (omitted) Bank had only agreed to defer its mortgage payments only until 21 January 2013. In these circumstances, Ms Casboult deposed as follows:
“I say that it is my understanding that the husband is still in the receipt of a Disability Support Pension as his primary source of income and I further say that it is highly unlikely that either of us would be in a financial position to retain either of the homes. I say that I seek orders be made forthwith that provide for both homes to be placed on the market for sale as sought in my application in a case herein. Alternatively, if the court does not accept that both homes should be sold together, which I say is the preferred position given the size of the combined land, I would seek an alternate order that the home that I own, being Property D2 be placed on the market for sale forthwith and that I appoint an agent to sell the same. I say that I would seek orders that the husband vacate this home and he can either return to his property next door at Property D1 or join the rental market.”[17]
[17] See wife’s affidavit filed 13 November 2012 at [15]
The wife’s application was listed on 22 November 2012. It was opposed by the husband who at this stage was acting on his own behalf. He deposed that the wife was being investigated by Centrelink with respect to fraud and possible criminal charges. At this stage, he deposed as follows:
“The former spouse vacated the family home to join the rental market. I say my children have grown and become settled in this home and I am prepared to do whatever is necessary to accommodate them in a stable environment, which is our family home.”[18]
[18] See husband’s affidavit filed 20 November 2012 at [51]
I was not prepared to deal with the wife’s application regarding the sale of the real properties concerned on an interim basis. I formed the view that it was preferable for all outstanding issues to be determined against a background in which all relevant evidence could be canvassed. However, I was not oblivious to the fact that the (omitted) Bank was pressing and both parties concerned remained under a significant amount of financial pressure.
In these circumstances, the preferable course for the court to adopt was to expedite the final hearing. As the Christmas vacation was imminent, I determined to fix the matter on 14 & 15 January 2013 (the fourth final hearing), when the court was not ordinarily sitting and when time was therefore available to hear the matter.
At this stage, the pressing issues for the court seemed to be as follows:
·Was it both possible and equitable for the husband to retain one of the Property D1 and D2 properties;
·On the other hand, did considerations of equity and fairness and the overall circumstances of the parties, including the fact that the sale of both properties together would secure a premium, justify the sale of both properties;
·What were the circumstances and likely implications of the Centrelink investigation.
At this stage, it should be noted that the children’s issues remained, at least, notionally resolved. However, it was clearly the case that the parties’ parental relationship remained fraught with difficulty, particularly whilst issues of property settlement remained outstanding.
As the tone of Mr Close’s self-penned affidavit indicates, he was bitter that the wife had moved into rental accommodation, which from his perspective had precipitated the crisis so far as his on-going occupation of the Property D1 and D2 properties was concerned. Regrettably, it is my perception that, so far as each of the parties is concerned, issues in respect of property settlement and issues relating to the care of their children remain inextricably entwined.
In the lead up to the fourth final hearing each party filed further updating affidavit material. In the wife’s case, she reiterated her parlous financial situation. At this stage, it was her evidence that she was on unpaid stress leave and she had no sick days remaining.
In addition, her Centrelink payments were being docked due to overpayment. She remained liable to the husband for child support, although in a modest amount of $29.61 per fortnight. It remained her position that the sale of both Property D1 and Property D2 was inevitable and that any forced sale, by the (omitted) Bank, would be a financial catastrophe for both parties.
In the husband’s case, he deposed that the Centrelink investigation had been finalised within the Department. In this context, he provided a copy of the determination of Mr G, who was the authorised review officer, who had conducted the investigation into the matter.[19]
[19] See annexure A to the husband’s affidavit filed 20 December 2012
Mr G found as follows:
·The husband and wife should be regarded as a couple for social security law purposes for the period between 6 December 2004 and 18 April 2010;
·As a consequence of this finding, the husband had received a single person’s disability support pension to which he was not entitled. This had resulted in an overpayment which was recoverable by the Department;
·The wife had received a single persons supporting parent benefit for the same period to which she was not entitled. Accordingly, she had been subject to an overpayment which was also recoverable by the Department.
The husband also confirmed that the wife had been assessed to pay him child support notwithstanding that his care percentage for X and Y was 38%. However, because his provisional taxable income was $18,379 and the wife’s 2012 taxable income was $30,415.00, the application of the applicable formula created a liability for Ms Casboult in an amount of $60.17 per month. This determination has subsequently been reviewed within the Child Support Agency, resulting in a nil/nil assessment.
e) Events prior to the fifth trial (November 2013)
Once again, the trial scheduled for 14 & 15 January 2013 did not take place. On 14 January 2013 Mr Close did not appear, nor did his solicitor. I was however advised, as I recall by email, that Mr Close was unwell. Given the imprecise nature of this information and the fact that Mr Close had failed to appear in court the previous September before Baumann FM, I was somewhat dubious about this application.
In these circumstances, the matter was adjourned to the following day and it was ordered that the matter would proceed to trial unless the husband made a formal application to adjourn the proceedings or provided evidence of his medical condition and any prognosis, particularly in respect of his physical ability to be present at the proceedings on 15 January 2013.
The following day, Mr Reynolds appeared on Mr Close’s behalf. He had limited instructions but understood that Mr Close had been admitted to the (omitted) Hospital on 14 January 2013 with chest pains. In these circumstances, the proceedings were adjourned until the following day, 16 January.
On this date, I was provided with a sickness certificate from the (omitted) Hospital, which indicated that Mr Close was suffering from an “indisposition” and would be unfit for work up to and including 16 January 2013. I was however informed by Mr Reynolds that he understood that his client was in hospital because of a serious heart complaint and was due to undergo a bypass procedure.
It had been consistently the wife’s position up to this point, that she was gravely concerned at the husband’s evidence regarding the husband’s assertion that Property D1 was uninhabitable. It was further her evidence that she had been unable to visit either property at Property D1 and D2, because of the acrimonious relationship between the parties. Accordingly, notwithstanding her legal ownership of one of the properties and her interest in the other, she had not been able to inspect either property for several years.
In these circumstances, she sought a formal order to inspect both properties in order to ascertain what was their state of repair and probable value on sale. An order to this effect was made on 15 January 2013. This authorised the wife to attend at both properties with a real estate agent of her selection to obtain current appraisals of the properties.
The wife and those advising her were understandably frustrated at the failure of the fourth trial listing of the matter to proceed. In these circumstances she renewed her application filed in November of 2012 that Property D1 and Property D2 be sold. At this stage, Mr Reynolds, the husband’s solicitor indicated that he had only instructions in respect of the adjournment of the trial.
In these circumstances, on 21 January 2013, the matter was listed for interim hearing, regarding the sale of the properties at Property D1 and Property D2 on 15 February 2013. The wife was to file any further affidavit on or before 28 January with the husband to file his affidavit material on or before 8 February 2013. It was noted that the husband had not as yet provided any formal evidence as to his medical condition.
As at 4 January 2013, it was the wife’s position that the loans to the (omitted) Bank were in arrears. The major loan had a balance of $58,855.59 with arrears of $5,686.70. The smaller loan had a balance of $20,447.97 and was overdrawn by $2,339.94. It was the wife’s case that she personally had no capacity to pay the monthly mortgage payments or to discharge the arrears.
On 7 February 2013, the wife filed a further affidavit which detailed her evidence in respect of her inspection of the two properties concerned which occurred on 15 January 2013. The wife was accompanied on her inspection of the properties by a real estate agent, Mr R.
The wife deposed that the interior of Property D1 was in a poor state of repair. Floorboards had been exposed and the toilet removed, along with some light fittings. It was the wife’s view that it appeared that marijuana had been cultivated within the home. She contacted police who removed some electronic equipment, including shades; globes; and a transmitter; which she believed had been used to provide artificial illumination for marijuana plants.
The police provided her with a receipt for these items. In addition, it was the wife’s positon that the interior of Property D2 had not been properly maintained. She found mould growing on the walls and ceilings of the bathroom. The exterior of both properties was littered with cars, car bodies, scrap metal and other rubbish. It was the wife’s view that no outside maintenance had been undertaken on either property for some time.
In a short letter, Mr R indicated his view that Proeprty D1 was likely to sell for a price between $450,000 – $500,000.00. He regarded it as being sub-standard in nature. He regarded Property D2 as having a sales potential between $380,000.00 – $400,000.00. He described it as being average in presentation.[20]
[20] See annexure C1 to the wife’s affidavit filed 7 February 2013
For obvious reasons, the wife was concerned at the state of the properties, which she believed could only be attributable to the husband’s neglect and other actions. She was also concerned that, if Mr R’s figures were correct, the properties had reduced in value by a sum of $75,000.00 since the valuations undertaken by Mr C in November of 2010.

She had school expenses which she could not pay in respect of X and had received a letter of demand for the payment of Z's (omitted) school fees in an amount of $534.25. It was also her position that her car was un-driveable and she could not afford to have it repaired.
Against this background of intensifying financial difficulty, the wife asserted that she had received a further demand from the (omitted) Bank, which had informed her that the bank would not extend the hardship provisions then in place beyond the end of February 2013. She was advised that the amount then outstanding was $79,755.83, with arrears of $8,820.53.
In a letter dated 6 February 2013, a representative of the bank had written to the wife in the following terms:
“As discussed with you, upon our review of your situation from the information provided, it appears that there is no appropriate arrangement acceptable to the bank. Based on our calculations, your current expenses of $3,349.00 per month exceed your current income of $2,228.00 per month.”[21]
[21] See affidavit of the wife (supra) at DC3
On 15 February 2013, Mr Close emailed an application seeking the adjournment of the wife’s application in a case to May 2013. He provided medical evidence which indicated that he had undergone a triple coronary artery bypass on 20 January 2013. In this material, he was described as having a long history of ischaemic heart disease with multiple risk factors.
Otherwise the husband did not appear at court on 15 February 2013 and did not file any answering material. In these circumstances, counsel for the wife, Mr McGinn successfully petitioned the court to deal with his client’s application, notwithstanding Mr Close’s obvious infirmity.
In the resulting reasons for judgment, I summarised what I reckoned to be the relevant established facts in the following terms:
·“The wife is in a parlous financial situation.
·She has a large debt to Centrelink, which will result in her Social Security payments being reduced.
·Due to her impaired health, she has a limited capacity to seek paid employment.
·She is the major provider of care for the parties’ three children. Mr Close pays her no child support.[22]
[22] The husband provided a Child Support Assessment, dated 28 October 2012, which indicates this.
·The wife is being pursued in respect of a mortgage debt for a property which she does not occupy and which she has no capacity to pay.
·The husband is in default of the order made on 16 May 2012 that he make all necessary arrangements and pay all necessary sums to the (omitted) Bank to ensure the Bank’s threat of foreclosure is not proceeded with.
·On the husband’s own case, Property D1 is uninhabitable.
·Accordingly, the husband is in occupation at Property D2. However, it seems incontrovertible that he is not in a position to make an acceptable accommodation with the (omitted) Bank to prevent it from foreclosing on the mortgage secured against the property.
·The husband is in poor health. In addition, he has not been in the paid workforce for many years.
·The husband’s sole source of income is Social Security.
·Like the wife, at this stage, the husband is likely to have a significant liability to Centrelink for the overpayment of Social Security payments apparently unlawfully obtained.
·The husband also has a significant debt to the (omitted) Bank in respect of Property D1.
·The properties are likely to secure a great return if sold together.
·Given the indication made by the (omitted) Bank, it appears that the sale of Property D2 is inevitable.
·The husband concedes that he cannot live at Property D1.”[23]
[23] See Casboult & Close (supra) at paragraph [68]
In addition, in the judgment, I wrote as follows:
“Were it not for the imminent financial catastrophe confronting the parties, which is coupled with the absence of any proposals from the husband to deal with it, ordinarily the Court would grant the husband’s application for adjournment out of considerations of probity and fairness. But the gravity of the financial circumstances confronting the wife and the possibility of such an adjournment creating irretrievable prejudice to her take this case out of the ordinary run of matters.”[24]
[24] Ibid at [81]
In the circumstances of the case, I elected to take the unusual step of dealing with the wife’s application. I formed the view that the sale of both properties seemed to be inevitable. In such circumstances, it seemed unfair to me that the wife should be deprived of the significant potential benefit of both properties being sold together. Undoubtedly, this was a highly controversial decision, the consequences of which have continued to reverberate for each of the parties.
As was his entitlement, Mr Close elected to appeal the decision. The appeal was finalised on 25 September 2013. The husband was not successful in discharged the order for the sale of the two properties. He was ordered to pay the wife’s costs of the appeal, fixed in the sum of $7,000.00, to be taken into account on the settlement or conclusion of these proceedings.
As previously indicated, I provided extensive reasons in respect of the decision to order the sale of the two properties concerned. It was not a decision which was made lightly. As matters have transpired, I am satisfied that it was the fair and appropriate outcome.
It was and remains my view, that there was a necessity for both properties to be sold, as soon as possible, to secure the maximum sum available for both parties. It was and remains my view that the likelihood of Mr Close being able to retain one of the properties and pay Ms Casboult her proper entitlements was remote.
However, there can be no doubt that Mr Close continues to labour under a significant sense of grievance which is directed primarily towards the wife. This has driven the dispute between the parties further with regrettable consequences for all concerned. I also acknowledge that Mr Close does not agree that it was inevitable that the two properties be sold.
Any hope that the sale of the two properties and the realisation of a significant sum of money would focus the parties’ minds on settlement and making preparations for the next phase of their respective lives was naïve. Mr Close remains bitter and rooted in the past. It also seems to be the case that the affections of the children have been torn by the unremitting conflict.
Inevitably, the sale process did not proceed smoothly. The husband declined to sign any necessary sales agreement or cooperate with the estate agent appointed. He declined to vacate the properties concerned or clean them up. The wife commenced enforcement proceedings.
Against this difficult background, the proceedings were fixed for a further hearing on 6, 7 and 8 November 2013 (the fifth hearing). In the meantime, the husband proposed selling twenty-five percent of his interest in Property D1 to his sister to secure some liquidity for the wife and avoid the inevitability of sale. This proposal was not satisfactory to the wife, who doubted the bona fides of the transaction.
On 26 April 2013, the wife filed an application to suspend the orders made by Sexton FM on 11 May 2011, which regulated the father’s time with X and Y. The reason for this application was comments posted about her by Mr Close on Facebook, which were derogatory in nature and implied she (Ms Casboult) would soon be incarcerated for social security fraud. It was alleged that the children had accessed this material.
The wife also alleged that X and Y had heard their father make threats to put “bullets in the head” of both her and Z. Mr Close denied these allegations. In these circumstances, I decided to refer the parties and the two children concerned to an urgent family dispute resolution conference with Ms P, an experienced family consultant.
Given the unacceptable and obvious tensions between the parties, I considered it expedient to take some steps to ascertain what the views of the two children concerned were and investigate how they were faring emotionally, in what could only be regarded as a tense and unusual situation.
Ms P reported to the court on 3 May 2013. The parties represented their contrary positions to her, particularly in respect of the allegations of family violence. In this context, Ms P reported as follows:
“The presentation of both parents suggested proclivity to strong reaction in the face of information contrary to their argument.
Neither parent appeared to have reflective capacity about the impact of their dispute on the children with each continuing to blame the other.”
At the time of interview, X was fourteen years of age. He presented to Ms P as quietly spoken and guarded. He spoke positively about his mother, but was negative in his reaction to his father. Ms P reported as follows:
“X said that when he was at his father’s house, his father would talk in a really bad way about his mother. X thought his father was angry and really hated his mother.
…
X said that he does not want to see his father. X appeared concerned about the abovementioned threats and very concerned about his father and his partner acting to send Ms Casboult to jail. This appeared related to Centrelink dishonesty allegations.”
Y appeared as being less burdened than his older brother. He also indicated to Ms P that he did not want to visit his father and felt unsafe there. Both children evinced some concern for their mother whom they regarded as vulnerable and frightened.
In all these circumstances, Ms P was of the view that to require the children to spend time with their father forcibly was unlikely to be viable. She also considered that the children presented with an appropriate level of maturity given their respective ages and as such, the court needed to give weight to their professed views.
On 6 May 2013, given what Ms P reported, I suspended the father’s time with the children.[25] At that time I had no reason to doubt Ms P reporting of the children’s views or the disastrous consequences of them being exposed to such extreme and protracted forms of conflict.
[25] See Casboult & Close (No.4) [2013] FCCA 943
Given these circumstances, on 2 August 2013, it was ordered that the children be independently represented and a further family report be prepared. The matter proceeded to trial. In the meantime, orders were made by the court following the finalisation of the appeal for reserved prices to be fixed for Property D1 and Property D2 and for an auction date to be appointed. Ultimately 28 October 2013 was fixed and on this date the properties both sold.
f) Events before the sixth trial (January and December 2014)
The trial scheduled for 6 November 2013 did not proceed. The father’s solicitor had briefed Ms Lindsay of counsel to appear. On the first day of trial, she requested that the matter be stood down so that some discussions could occur between the parties, presumably to ascertain whether there was any possibility of some accommodation being reached between them, given that the parties’ most significant assets had recently been realised.
During the course of 6^th November, Ms Lindsay informed me that she was unable to appear in the matter further due to an ethical difficulty, which was not disclosed to me, but which she assured me precluded her from being further involved in the trial. In these circumstances, her instructions were withdrawn and she withdrew to be replaced by Mr Jordan of counsel, who was not able to absorb the voluminous material in the time available to him to allow the trial to continue at that juncture.
In these circumstances, there was no alternative but to allocate a further date for trial. The earliest dates available were in the court’s vacation period on 15, 16 and 17 January 2014 (the sixth hearing). Although this trial has not been without its interruptions, it has now been finalised, albeit that the time estimated for the hearing of the case proved to be grossly under estimated.
On 7 November 2013, orders were made dealing with the removal of cars, car bodies, scrap hardware and rubbish from the two properties, at first instance by the husband and, if he did not comply, by Mr R. Orders were also made for the sheriff’s cost of execution and other costs relating to a locksmith who was required to force entry to secure the sale, to be deducted from the sale costs. These costs related to the obstruction of court orders by Mr Close.
In addition, the following order was made by consent:
“The net proceeds of sale of the said properties be invested in an account pursuant to Order 12 of Orders of 15 February 2013 such account to be in the joint names of the parties with the solicitors for each party to be joint signatories.”
This order, although arising by consent, was subject to some misunderstanding. It was only on 7 March 2014 that the proceeds of sale were invested in an interest bearing account, rather than remaining in the trust account of the conveyancer concerned.
The second family report was prepared by Ms K, who at the time was a family consultant and clinical psychologist. She has since retired. Her report was released to the parties on or about 14 October 2013. She reported as follows:
“X and Y live in a household which is not supportive of them having a relationship with Mr Close. Whether this is tacit or more overt is not known but it must be very difficult for the boys to report having a good time with their father. It seems that they have taken Ms Casboult’s side in this post-separation battle and have therefore focussed on reasons they should not see Mr Close rather than reasons they should see him. It is possible that they have been influenced, directly and/or indirectly, by Ms Casboult, Z and their grandmother but they are also old enough to form their own opinions – X is nearly 15 and Y is nearly 12, and their wishes should be given a weighting of at least 60%. Both boys have reportedly been very anxious about having to see Mr Close again and Y’s anxiety has a physical expression. It is not likely that making the boys spend time with Mr Close against their wishes is in their best interests and may serve to ruin any chance of them developing a better relationship with him once the Court matter has been concluded and the acrimony has hopefully subsided.”[26]
[26] See family report dated 14 October 2013 at [41]
The first day of the trial, on 15 January, was taken up with Ms K’s evidence. Over the course of the following days Ms Casboult also gave evidence and was cross-examined by Mr Jordan and counsel for the independent children’s lawyer. In general terms, Ms K was pessimistic about the prospects of the children resuming any form of relationship, in the foreseeable future, with their father.
She considered that both X and Y had been deleteriously affected by exposure to the extreme acrimony in their parent’s relationship with one another. In these circumstances, she considered the boys to have lost trust in their father’s behaviour, but in doing so, also to have been influenced by the negative atmosphere, in their mother’s household, for the father.
Accordingly, she considered in probable that both parents had played a part in causing the children to become estranged from their father – the father through his behaviour; the mother through her propensity to convey her feelings of negativity, for the father, to the children.
In these circumstances, Ms K considered that there was no trust between the parties and no prospects of any olive branches being proffered to resolve the issues between them and bring about some form of rapprochement between the children and their father.
In these circumstances, somewhat surprisingly, during the course of her evidence, Ms Casboult indicated that she would be happy at the prospect of X and Y spending some time with their father in the near future. Her proposal was however subject to significant qualifications. In this context, asserted that she was “very nervous and anxious about the children seeing their dad”.
However, she further indicated that she would “keep a brave face … and would not cry” about the children going to spend time with their father. In addition, it was also her position that the children, but particularly Y, were anxious about the prospect of spending time with the father.
Nonetheless, Ms Casboult indicated that she would “sell [spending time with their father] to the boys as being something they needed.” In all these circumstances, at this juncture, Ms Casboult proposed two periods of time, between the children and their father, each weekend, with some over-night time, in future, if this went well.
Ms Casboult was vehemently opposed to the prospect of the children engaging in any re-unification counselling with their father. Her primary objection being its cost. She further indicated her desire to be amicable with Mr Close if he was inclined to reciprocate in a similar manner to her. I have some reservations that this offer is entirely genuine.
Accordingly, the conclusion of the first segment of the trial ended with at least the prospect of some advancement in the husband’s relationship with X and Y being achieved. In these circumstances, Mr Close proposed that Mr S, a psychologist experienced in mediating family disputes, be engaged to meet with the children and thereafter arrange for them to spend some time with their father. In this context, the following orders were made:
“1.    The children X and Y spend time with their father from 1:00pm until 3:00pm on Sunday, 19 January 2014 with all handovers to be conducted at the rooms of Mr S Psychologist.
2.     Mr S be provided with a copy of Ms K’s family assessment report dated 14 October 2013 by the independent children’s lawyer.
3.     Mr S conduct the handovers and the process generally in such a manner as he sees fit including but not limited to Mr S speaking with each of the children both before and after the period of time and providing feedback to the father.
4.     Mr S be requested by the independent children’s lawyer to provide a written report following the period of time, such report to identify any recommendation(s) as to the issue of the father’s request to spend further time with the children.
5.     Mr S’s costs be met for the proceeds of sale of Property D1 and the parties do all things and execute all documents to cause such monies to be paid to Mr S.
6.     The father’s time with the children be conditional upon:
a) His partner be present on any such occasion;
b) He not discuss any issues with the children relevant to these proceedings to or in the presence of the children and or permit any other person to do so; and
c) He not denigrate, insult and criticise the mother to or in the presence of the children or permit any other person to do so.”
As will become apparent, in due course, this process was singularly unsuccessful as it was marked by misunderstanding as to what would occur, particularly how quickly the children would move away from Mr S’s rooms with Mr Close and his current partner, Ms B.
Mr Close sent Mr S a letter which indicated that he was not prepared to be involved in any further interaction between him and the children overseen by Mr S. The continuation of the trial was adjourned to 5 and 6 June 2014.
Regrettably, the trial could not be resumed in June as Mr Close experienced a further deterioration in his health and had to be re-admitted to the (omitted) Hospital for further urgent cardiac treatment. He was advised to avoid excess stress for a few weeks. In these circumstances, the completion of the trial was deferred until 11 and 12 December 2014, at the time the earliest dates available to me.
Accordingly, the taking of oral evidence in this matter was finally completed on 12 December 2014. Thereafter, each party requested the opportunity to make written submissions to the court.

By dint of his decade or so in the workforce and his workers’ compensation payment, the husband brought into the marriage significant assets which enabled the purchase of Property D1 and Property D2, the proceeds of which, approaching two decades later, are now the only extensive and tangible asset available to be divided between the parties.
In this sad case, it is apparent to me that the high water mark of the parties’ financial security occurred in 1999, prior to the husband’s first heart attack. Prior to this obviously unforseen calamity, the parties anticipated that the husband would remain in the workforce and the wife would remain primarily in the home, tending to the needs of the parties’ young children.
In time, no doubt, it was anticipated that the wife would return to the workforce when the children were older. In this context, it was anticipated that the parties would gradually consolidate their financial position and grow their wealth together, from what seemed to be a secure base, founded on their respective ownership of Property D1 and Property D2.
This did not happen. The husband was compelled to leave the workforce because of his heart attack, qualifying for a disability pension in 2001. Thereafter, as the relationship between the parties deteriorated, it also seems to be the case that their financial position gradually eroded. This gradually deteriorating position became severe, in 2010, when the wife vacated number Property D2.
From 2001 onwards, the parties’ chief source of income was social security. However, given their acquisition of the two adjoining properties in Property D1 and Property D2 which were not significantly encumbered, they were able to get by and maintain their financial security, perhaps with the help of some rent.
To my mind, this situation emphasises the significance of the husband’s initial injection of capital into the family unit without which the parties’ situation would have been far more parlous following the husband’s unforseen incapacity arising from his cardiac ill health.
At the same time however, the wife was not in a position to join the workforce. I accept that she was integral to the welfare of the parties’ three children, all of whom were of or just after pre-school age, in the period between the husband’s first heart attack and the time he was granted the disability pension.
One of the essential tasks for the court, arising under section 79(4) of the Family Law Act is to weigh and assess contributions which are essentially different in nature and, as such, are not always amenable to ready comparison. In this context, I must be careful not to undervalue the homemaker role which does not always provide a clear economic output such as that generated by a wage earner.[75]
[75] See Ferraro & Ferraro (1992) 16 FamLR 1 at 38 and Mallett & Mallett (1984) 156 CLR 605
In my view, this is the most difficult aspect of the case. In my view, for reasons on which I will elaborate, the husband’s initial contribution of capital must be regarded as significant and, as such, worthy of special recognition in the manner in which the court assesses the parties’ respective and diverse contributions.
However, although the husband’s contribution provided some measure of security in the difficult circumstances following the husband’s incapacity, the fact remains that since around 2000, there has been little improvement in the parties’ financial bottom line throughout the remainder of the decade, other than through the natural forces of inflation. To the contrary, that bottom line has inexorably deteriorated, in large part due to the bitterness engendered by the parties’ separation and these proceedings which have ensued.
At the same time, throughout the entire period of the parties’ involvement with one another, including the controversial period post 2004, I find that the wife made significant contributions to the welfare of the parties’ family in what were difficult and challenging circumstances. In addition, as soon as she was able, she obtained qualifications to enable her to return to the workforce in the (omitted) sector.
Underpinning the husband’s case is his assertion that the court needs to give due weight in assessing the respective contributions of the parties to the fact that the gains of capital which have accrued to the parties jointly, are on his case, largely the product of his initial introduction of property rather than as a consequence of other ongoing contributions, either from him or the wife.
Issues of this kind confronted the Full Court of the Family Court in Pierce v Pierce.[76] In the case, the Full Court (Ellis, Baker and O’Ryan JJ) said as follows:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions both of the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.”
“…there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome, which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.”
[76] See Pierce v Pierce (1999) FLC 92-844 at 85,811
In Pierce, the husband brought in around $200,000.00 in cash into the marriage, which was utilised to purchase a home. He remained employed throughout the marriage and supported the wife, who was primarily engaged in caring for the parties’ children. The Full Court assessed the parties’ respective contributions, to a total pool of $320,000.00, as 70/30 percent, in favour of the wife, at the end of a ten year relationship.
In MH & MZ[77] the court was concerned with a pool of assets of $1.12million acquired over a relationship of nine years, which produced two children. The wife had made significant non-financial contributions to the welfare of the family, but the husband had made a significant financial contribution, at the outset of the parties’ relationship.
[77] See MH & MZ (2005) FLC 93-226
At trial, contributions were assessed 75/25 percent in the husband’s favour. On appeal by the husband, the Full Court (Kay, May and Boland JJ) allowed the appeal, reducing the husband’s percentage entitlements and saying as follows:
“Such an assessment ought adequately recognise that much of the parties wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.”[78]
[78] Ibid at 79,730
In the current matter, in round terms, the husband brought in four times as much capital, in 1995, than did the wife. Between 1995 and 2010, this injection of capital remained stable, but sustained the family, in difficult circumstances. However, throughout this lengthy period, the wife also made substantial and significant contributions, which benefitted the family, but did not directly lead to the accumulation of wealth.
In my view, this contribution of capital, attributable to the husband, must be given some form of special recognition in the terms recognised by the Full Court in Pierce. However, I must be careful not to undervalue the wife’s contributions, over what must be regarded as a very significant period of time.
This is not the end of the difficulties, which this case presents. The period between 2010 and 2015 represents a period of financial disaster, in which assets have either been significantly diminished or not properly utilised. The driving force for these factors has been the husband’s antipathy for the wife marked by his desire to penalise her at all costs.
The Full Court, in cases such as Spiteri[79] has generally disapproved of the concept of negative contributions in cases arising under section 79 of the Act. However, notwithstanding this general eschewal, in a case such as the present, it is necessary to contrast the parties’ contrasting contributions, in the post 2010 period.
[79] In the Marriage ofSpiteri (2005) 33 FamLR 109 at 119
During this period, in my assessment, the evidence indicates that the wife has made positive contributions, in respect of the care of the parties’ three children, in difficult circumstances, with limited assistance from the husband. On the other hand, the husband has permitted the parties’ major assets to go to wrack and ruin. In particular, he has failed to utilise at least one of the Property D properties for rental purposes.
In all these circumstances, in my view, in the period of the past five years, any assessment of the parties’ contributions must favour the wife to a marked degree. The next step, for the court, is to synthesise these various and diverse contributions to arrive at a concrete conclusion, which considerations of pragmatism dictates should be expressed in percentage terms.
In my view, this is a very difficult task, given the extent of the asset pool and the very great future financial needs of the parties. It is all very well to talk in percentage terms, but what is important to the parties is what such percentages mean in dollar terms.
Frequently, in cases where the asset pool is modest, small calibrations in percentages can have significant implications for the parties concerned. This is one such case and I hope I have thought carefully when making the leap from words to figures.
In this context – the move from considerations in the abstract to what should be concrete, Faulkes DCJ, in Kane & Kane[80] said as follows:
“Nothing in s 79 requires a Trial Judge (or for that matter the parties) to allocate a percentage entitlement of the property to each party in applying the criteria and requirements of s 79. (And because of s 79(4)(e) s 75(2)). The articulation of such percentages is a practical tool whereby the parties and ultimately the Trial Judge indicate the weight and evaluation given to any contribution (or contributions in combination) or to any factor under s 75(2) (or all factors in combination). While the allocation of percentages is a sensible and valuable tool, (particularly to promote consistency and predictability) it cannot be an objective in its self. Section 79 imposes no obligation on a Court to divide property or interests in property in accordance with some determined percentage.
That having been said the evaluation and comparison of contributions (and also factors pursuant to s 75(2)) is necessarily a difficult task because contributions of one sort, in one “sphere” of contribution, may be significantly different in kind from contributions in another.”
[80] See Kane & Kane [2013] FamCAFC 205
His honour also approved the following passage of Coleman J from Steinbrenner & Steinbrenner,[81] whilst remarking that no answers were provided in it to the dilemma created by the need to leap from words to figures in a property case:
“Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case…”
[81] See Steinbrenner & Steinbrenner [2008] Fam CAFC 193 at [234]
In the present case, the marriage between the parties was one of reasonably significant length. It produced three children. Provision for Z, X and Y was the focus of the marriage, in good times and in bad. The wife made a significant contribution in this regard.
Bearing in mind these factors and the importance, which must be accorded to the husband’s initial contribution of capital, I assess the parties’ respective contributions, at the end of the second stage, as being 53/47 percent in favour of the husband, in respect of their non-superannuation assets.
This assessment also reflects the deterioration of the parties’ capital post 2010, which is marked by significant family and homemaking contributions attributable to the wife. However, notwithstanding the negative aspects of the husband’s conduct, in this period, it would be unfair to him if his initial contributions are not recognised.
In my view, it would not be just and equitable to make any splitting order in respect of the parties’ modest superannuation holdings. I have determined that each party should retain their respective level of holdings and this can be a factor for consideration arising under section 75(2).

Step 3

Section 75(2) – the prospective needs of the parties

I am now required to consider the various matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are mainly, but not only, prospective in nature. They are as follows:
Both aspects must be considered in the light of the criteria listed in section 75(2), specifically, they are as follows:
(a)    the age and state of health of each of the parties;
(b)    the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)    whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)    commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)    the responsibilities of either party to support any other person;
(f)     subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth of a State or Territory or of another country; or
(ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
(g)    where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)    the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)    the property of the parties; or
(ii)   vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)     a person who is a party to a de facto relationship with a party to the marriage; or
(iii)    the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)    vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
I will address the section 75(2) factors as relevant.
Paragraph (a) – the husband is approaching fifty years of age. His health is poor. The reality is that he will never return to the paid workforce.
The wife is forty-eight years of age. She was diagnosed with breast cancer in 2011, which required surgical intervention and thereafter radio and chemotherapy. At the time the final hearing concluded, she was scheduled to have breast reconstructive surgery shortly.
Over the past four years, the wife’s evidence is that her health has been generally compromised and she has been depressed and stressed. She has suffered some difficulties with her shoulder due to her breast surgery and more recently, as previously indicated, has undergone leg surgery relating to a bursa.
Dr A, the husband’s general practitioner reports that Mr Close had a coronary bypass operation in January 2013. As recently as June of 2014, he was readmitted to the (omitted) Hospital suffering from strong chest pains.
Mr Close may have to have surgery, in respect of scarring on his original operation site. Dr A further reports that the husband is incapable of lifting anything more than a five kilogram weight. Clearly, Mr Close is severely disabled.
In his most recent affidavit, Mr Close advises that he experiences numbness and tingling in his left leg and receives a number of medications relating to cholesterol; blood thinners; and his heart rate. He also suffers psoriasis. His various medications cost him $23.20 per month.
Paragraph (b) – the wife asserts that the husband has some capacity to earn an income as, in the past, he sold scrap metal and bought and sold motor vehicles. In my view, the wife’s view of the husband’s earning capacity has been overtaken by events, particularly the husband’s most recent cardiac events.
Given the issues surrounding his current level of health, in my assessment, the prospects of the husband earning any income from paid employment are so remote that this possibility should be discounted. The husband’s only source of income, for the remainder of his life, is likely to be social security.
The wife has qualifications and experience in the (omitted) sector. In her evidence provided to the court in December of 2014, she indicated her intention to return to her work and confirmed that she had been employed as a part-time (occupation omitted) for the past five or six years.
In December 2014, Ms Casboult was in receipt of New Start payments, at a rate of $571.00 per fortnight. From this sum $20.00 was deducted representing her social security overpayment. Ms Casboult also receives family tax benefit relating to her care of X and Y.
Given the wife’s age and her qualifications and experience in (omitted), I would anticipate that, once the trauma of the current proceedings has subsided, Ms Casboult will be in a position to return to the workforce, but probably not on a full-time basis.
In contrast to the husband, she has some income earning capacity but not a significant one. To utilise the terminology of her counsel, Mr McGinn, if Ms Casboult does return to the workforce, its financial effect for her will not be transformative.

When the wife was in employment, she was a modest salary earner. Given her far from robust health, including her recent leg and shoulder difficulties, combined with her age and level of skills, I anticipate that she will remain a lowly salary earner for the remainder of her working life. However, in my assessment she is in a better position than the husband. This is a factor which favours Mr Close to some degree.
Paragraph (c) – the wife has the care and control of X and Y. The children are both attending school and Y, the younger child, is likely to remain financially dependent on his mother for at least the next five years.
Mr Close is both unable and disinclined to provide financial assistance to Ms Casboult, in respect of the children. This is a factor which significantly favours the wife. At best, a small deduction will be made from his social security entitlements which will not go very far in providing for the children’s financial needs.
In these circumstances, any monies the wife is likely to receive, in excess of any prospective social security allowance from her employment, will be allocated to the needs of X and Y. Accordingly, this is a factor which favours the wife to a marked degree.
Paragraphs (d) & (e) – both parties appear to lead modest lives. Due to his poor health, the husband has a significant ongoing liability for medication. The wife continues to provide for Z, whilst she continues with her (omitted) apprenticeship.
The wife has not re-partnered. The husband is engaged to Ms B, who has some income as a (occupation omitted) but also has a dependent child.
Paragraph (f) – both parties are likely to remain in receipt of social security, in some form or another, for the remainder of their lives. Neither party has been able to make any provision for retirement through the accumulation of any significant amount of superannuation.
The wife is likely to have some limited opportunity in this regard to add to her currently meagre holdings through further employment. The husband has no such opportunity. Accordingly, both parties face an uncertain financial situation.
At present the husband has around $10,000.00 in superannuation; the wife just under $6,000.00. The slight discrepancy is a factor which marginally favours the wife.
Paragraph (h), (ha), (j), (k) & (l) – these paragraphs do not appear to be significantly relevant to the present matter.
Paragraph (m) – I have not been advised in any detail of Ms B’s financial circumstances. I do not regard as this being a significant factor in this particular case.
Paragraphs (n), (naa), (p) & (q) – these paragraphs are not relevant to the current matter.
Paragraphs (na) – as previously indicated, the wife’s responsibility to parent X and Y will place a heavy financial burden on her shoulders, which she will likely bear alone. As the children are attending secondary school, they are reaching the stage of life when their recurrent expenses, in respect of such things as sporting activities, educational needs, clothes and recreation are likely to be at their highest. This is a significant factor which favours the wife.
Paragraph (o) - in Ferguson & Ferguson[82] the Full Court of the Family Court held that section 75(2)(o) was to be read ejusdem generis with the other matters listed in the section 75(2) which enabled the court to bring into account “conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.”
[82] See Ferguson & Ferguson (1978) FLC 90-500 at 77,607
Both parties are significantly indebted to the lawyers in respect of these proceedings. As such the proceeds of sale of Property D1 and Property D2, which each can anticipate receiving, will be significantly reduced. No doubt both parties, but particularly the husband, wish to be able to purchase some form accommodation to provide accommodation for their later years.
Given the extent of the monies owed for legal fees, it seems doubtful that these aspirations can be met. It also may be the case that both parties are viewed as doubtful prospects for mortgage finance both because of their current financial circumstances and because of the fact that their previous loan arrangements became delinquent.
In addition there is uncertainty about how the parties, and indeed Centrelink, will approach the question of the significant sums currently deemed to be an overpayment of social security to them. It may be the case that Centrelink will require immediate repayment of the debt, which will further diminish the entitlements of each of the parties.
The wife maintains her position that she has not defrauded Centrelink in any way and stands by her assertion that she was separated from Mr Close from 2004 onwards. In these circumstances, it is not beyond the bounds of possibility that she may seek to review the Departmental decision, which adds further uncertainty to what is financial future for both parties. However, the ball is her court in this regard and I am unable to ascertain what she will do or how any review will unfold.
Finally, the wife may have a liability for capital gains tax. All these factors emphasis the fact that these proceedings have been a financial disaster for both parties. The fact remains that the asset pool available in this case is woefully inadequate to meet the needs of the parties, who each face a bleak financial future, no matter what order is made.
The husband sold a parcel of shares and recouped a sum of around $49,000.00, which given the extent of the parties’ assets now must be regarded as a significant sum. The monies are to be regarded as a premature distribution of assets, which has not benefitted the wife whatsoever.
Were it not for this sum, I consider that I would have made some further allowance, in favour of the husband, in recognition of the fact that he will be a disability pensioner for the remainder of his life and although far from robust and financially secure, the wife has at least the prospect of five to ten years of part time work in the (omitted) sector.
As has been said by the Full Court, that the most valuable “asset” a party can take out of a marriage is “a substantial, reliable income-earning capacity”.[83] In this case, the wife’s income-earning capacity is most certainly not substantial nor necessarily reliable, but in my assessment she has some capacity in this regard, whereas the husband does not.
[83] See Clauson & Clauson (1995) FLC 92-595 at 81,911
However, the wife also will have largely sole financial responsibility for X and Y for the next five years or so. In these circumstances, the payment to her of a significant share of the proceeds of sale of the shares in question would have been very helpful to her.
Bearing all these factors in mind, including the smallness of the property pool and the artificiality of applying percentage figures to it, in all the circumstances of the case, I do not consider that it would be just and equitable to make any further allowance in favour of either party as a consequence of any factor arising under section 75(2).
The wife will struggle to support the two children of the marriage without any significant support from the husband. At best she will be a lowly largely unskilled worker, at worst she will be in receipt of social security. She has significant debts and most likely will be living in rented accommodation for the foreseeable future.
In my view, the husband’s situation is largely the same. He will remain a disability pensioner. Ms B may provide some support but he too will see his settlement award from these proceedings significantly diminished. The heartbreak of this case is that the level of money which has been consumed by these proceedings has been revealed as out of proportion to what has been at stake in dollar terms.
At the end of the day the only assets of significant value available to be divided between the parties are the proceeds of sale of Property D1 and Property D2. The parties’ other assets in the form of their household contents, are of extremely modest but similar value, as is the case with their superannuation.
53% of the proceeds of sale, less the $60,000.00 advance, is represented by the sum of $301,377.52 and 47% by the sum of $267,259.30. From the husband’s entitlements, needs to be deducted the appeal costs and the costs relating to execution ($9,976.00).
These are not felicitous figures, when the parties’ respective level of costs is considered. However given the length of the marriage, the amount of the asset pool and particularly the husband’s initial contribution of capital, when set against the financial disaster of more years and the wife’s significant contributions, I am satisfied that the outcome represents a just and equitable one.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding five hundred and six (506) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 9 July 2015

[2015] FCCA 1877

9 July 2015

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