Charles and Charles

FAMILY COURT OF AUSTRALIA

CHARLES & CHARLES

[2007] FamCA 124

FAMILY LAW – CHILDREN - Equal shared parenting responsibility - rebuttal of presumption - section 61DA(2) and 61DA(4) - Family violence in presence of children - Best interests of child to not have week-about parenting - Reduction of existing time based on father’s pressure on children
FAMILY LAW – PROPERTY - Property division - add-backs - valuation of business where risk of value diminishing if sold - Remainderman interest as property but treated as resource - contributions after separation to increased value of business and to superannuation - section 75(2) loading - discretionary decision to give parties a “mix” of superannuation and non-superannuation assets.

Family Law Act 1975 (Cth)

APPLICANT:

MS CHARLES

RESPONDENT:

MR CHARLES

FILE NUMBER:

BRF

1193

2004

DATE DELIVERED:

23 February 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

CRONIN J

HEARING DATE:

12, 13 and 14 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CAMERON

SOLICITOR FOR THE APPLICANT:

BLAKE TOPPINGS

COUNSEL FOR THE RESPONDENT:

MR FOLEY

SOLICITOR FOR THE RESPONDENT:

RICHARD GRAY & ASSOC

Orders

The husband and the wife share the responsibility for making decisions about any major long-term issue in relation to the children S born in February 1998 and N born in December 1999.
Pursuant to s.65DAC (2) decisions relating to major long-term issues about the children be made jointly.
For the purposes of s.65DAC (3), the husband and the wife consult with each other about all major long-term issues (as defined in s.4 of the Family Law Act 1975) about the children, such consultation to be by letter sent by ordinary pre-paid post and in default of agreement, the parties attend (and not necessarily simultaneously) upon a Family Relationship Centre counsellor to make an attempt to resolve such issues.
In default of a resolution of the matters after the resolution counselling referred to in paragraph 3 hereof has occurred, the wife shall make the decision.
That the husband be and is hereby restrained by injunction from:
(a)harassing the wife;
(b)sending any text or other written communication to the wife other than for the purposes set out in paragraph 6&7 hereof or the letters referred to in paragraph 3 hereof;
(c)telephoning the wife other than for the purposes set out in paragraph 8 hereof;
(d)attending at the wife’s home other than to return the children at times appointed by these orders; or
(e)being within 3 metres of the wife whilst attending at any school function or at any function involving the children’s extra-curricular activities.
Notwithstanding the injunctions referred to in paragraph 5 hereof, the husband and the wife may communicate with each other by email transmission in respect of:
(a)advice as to hospital, medical, dental or health professional appointments for the children;
(b)advice as to any medication being administered to either child;
(c)advice as to desired changes of times to be spent by the husband with the children under these orders;
(d)advice as to change of residential address or telephone number; and
(e)any intention to travel during school holidays to New Zealand.
Notwithstanding the injunctions referred to in paragraph 5 hereof, the husband may attend any appointment with any hospital, medical, dental or health professional relating to the children at which the wife is also present in the event of:
(a)an emergency; or
(b)the husband has given notice in writing by letter of his intention to attend.
Notwithstanding the injunctions referred to in paragraph 5 hereof, the husband may telephone the wife in the event of accident or illness of either child which warrants medical treatment.
That the children live with the husband from conclusion of school on Thursday until the commencement of school on the following Monday (or Tuesday if Monday is a gazetted public holiday) in each alternate week commencing 1 March 2007.
That the children live with the wife at all other times except for the periods otherwise referred to hereafter.
That as and from1 March 2007 the orders made 27 July 2004 are discharged.
That during all school holiday periods, the provisions of paragraph 9 and 10 of these orders are suspended and shall resume immediately after school resumes as if they had not been so suspended.
That the children spend time with the husband as follows:
(a)for the first half of all school term holidays that commence in even-numbered years; and
(b)for the second half of all school term holidays that commence in odd-numbered years;
That the children spend time with the wife as follows:
(a)for the second half of all school term holidays that commence in even-numbered years; and
(b)for the first half of all school term holidays that commence in the odd-numbered years.
All school term holidays and long summer holidays shall be deemed to commence at the moment the children leave school on the last day that they attend school for the term and shall be deemed to conclude at 5 pm on the day prior to the children returning to school.
That the children spend time with the husband otherwise as follows:
(a)for one half of all long summer holidays being the first half in all odd-numbered years and the second half in all even-numbered years;
(b)on Father’s Day from the Saturday evening at 6 pm of that weekend until 6 pm of the Sunday (and at that time, the husband shall return the children to the wife if it her weekend to enable the children to be taken to school on the following Monday morning by the wife);
(c)on each child’s birthday and the husband’s birthday from the conclusion of school until 6 pm if a school day or from 8 am to 1 pm if on a weekend which is not the husband’s weekend with the children.
For the purposes of all changeovers, if not at school, the children shall be delivered by the wife or her nominee to the outside of the husband’s residence at the commencement of the period and returned by the husband or his nominee to the outside of the wife’s residence at the conclusion of the period.
That the husband communicate with the children by telephone at 6.30 pm for up to 30 minutes on each Monday and Wednesday with the wife telephoning the husband’s nominated telephone number and facilitating the telephone conversation between the husband and the children.
That during all school term holidays and long summer holidays when the children are spending time with the husband, the wife telephone the husband’s nominated telephone number at 6.30 pm on each Monday and Wednesday and the husband facilitate the telephone conversation between the wife and the children.
That each of the husband and the wife be and is hereby restrained from being in or around the presence of the children during telephone discussions between the children and the other parent.
That the children spend time with the husband from 2 pm on 24 December 2007 until 3 pm on 25 December 2007 and for a similar period in each alternate year thereafter.
That the children spend time with the husband from 3 pm on 25 December 2008 until 6 pm on 26 December 2008 and for a similar period in each alternate year thereafter.
In calculating the long summer holidays in each year the parties shall exclude the period from 2 pm on 24 December until 6 pm on 26 December regardless of the fact that it interrupts the first half of the long summer holidays.
For the purposes of all travel in paragraphs 21-23 hereof, the provisions of paragraph 17 shall apply.
The husband’s time with the children under these orders is suspended during the following:
(a)On Mother’s Day from Saturday evening at 6 pm of that weekend until 6 pm of the Sunday (and at that time, the wife shall return the children to the husband if it is his weekend to enable the children to be taken to school on the following morning by the husband);
(b)On each of the child’s birthday and the wife’s birthday from 6 pm if a school day until the commencement of school the following morning or from 1 pm to 6 pm if on a weekend which is not the wife’s weekend with the children (and the wife shall return the children to the husband if it is a Sunday of his weekend to enable the children to be taken to school on the following morning by the husband).
Notwithstanding the injunctions set out in these orders, the husband may attend all school and extra-curricular activities of the children at which parents would normally attend.
That each the husband and the wife have liberty to disclose the details of these orders to all principals and teachers of schools that the children attend and all hospital, medical, dental and other health professionals attended by the children.
That the wife retain the children’s passports and make them available to the husband in a timely manner after the husband has given notice as set out in paragraph 6 (e) of his intention to travel to New Zealand.
That each party keep the other informed at all times of their telephone number and residential address.
That the husband pay to the wife $137,000 (the sum due) on or before 4 pm on 1 May 2007 (the due date).
That contemporaneous with the payment of the sum due:
(a)the wife sign all necessary documents to transfer to the husband at the expense of the husband, all of her interest in the real property at E (the home); and
(b)the husband pay all payments due under the encumbrance affecting the home as they fall due, indemnify the wife in respect thereof and provide to the wife a discharge of any such encumbrance.
That in default of payment of the sum due by the due date, the husband and the wife do all things required including signing any necessary document to sell the home by public auction on terms and conditions to be agreed and in default of agreement, on such terms and conditions as an agreed real estate agent (the agent) shall determine.
If the parties do not agree on the agent, each of the parties shall provide to a registrar of the Brisbane Registry of this Court, a list of 3 names for the registrar to nominate the agent using the provisions of Rule 15.46 of the Family Law Rules.
Upon the sale of the home, the proceeds of sale shall be applied as follows:
(a)first, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge any encumbrance affecting the home;
(c)thirdly, to pay to the wife the sum due together with interest calculated pursuant to the Family Law Rules from the due date; and
(d)fourthly, to pay to the husband, the balance.
That by 4 pm on 1 March 2007, the husband sign any required document to transfer to the wife, all of his interest in:
(a)MLC Masterkey Unit Trust;
(b)BT Investment Fund account number 1;
(c)BT Investment Fund account number 2; and
(d)The 1000 Telstra shares.
That pending the payment of the sum due, the husband and the wife are each restrained from further encumbering the home other than for the purposes of satisfying the payment by the husband of the sum due.
Should the necessity arise, each party shall have the right to bid at any such auction sale pursuant to these orders.
Pursuant to s.90MT (1) (b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in BT Lifetime Super – Personal Plan C 07470064 (“the fund”) the wife be paid the base amount and there be a corresponding reduction in the entitlement of the husband in the fund.
For the purposes of paragraph 38 of these orders, the base amount is fixed at the sum of $44,000.00.
The operative time for the purposes of paragraph 38 and 39 of these orders is the fourth day after the service of these orders upon the trustee of the fund.
For the purposes of these orders, IT IS NOTED by the Court that the trustee::
(a)is bound by these orders; and
(b)has been accorded procedural fairness.
That pending the payment of the sum due, the husband pay and be responsible for all rates, taxes and outgoings of or with respect to, the home.
That unless otherwise set out in these orders, the husband retain and the wife relinquish any interest in, any property and superannuation entitlements in, the possession or control of the husband.
That unless otherwise set out in these orders, the wife retain and the husband relinquish any interest in, any property and superannuation entitlements in, the possession or control of the wife.
That save as to any issue of the costs as between the parties, the application of the wife filed 6 September 2006 and the response of the husband filed 13 September 2006 are dismissed.
That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:
(a)Be filed with the Associate to Justice Cronin by 4 pm on 9 March 2007, and
(b)Be served upon the other party by that date.
If no further application by either party is filed by the date referred to in paragraph 46, all applications shall be deemed to be dismissed.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED:

All material produced pursuant to subpoena may be returned to the recipient of the subpoena.
All exhibits may be returned to the practitioner producing them after 1 April 2007.
Pursuant to s.65DA(2)and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1193 of 2004

MRS CHARLES

Applicant

And

MR CHARLES

Respondent

REASONS FOR JUDGMENT

This is a dispute between parents about parenting orders and the division of property. At the commencement of the hearing, the wife sought permanent injunctive relief against the husband.
Notwithstanding that the parties were divorced on 19 January 2005, I intend to describe them in these reasons for judgment as the husband and the wife.
The parenting dispute is about how much time the children spend with each parent.
The property dispute is about what amount of money (if any) the husband is to pay to the wife if he is to retain the former matrimonial home.
The wife seeks an injunction which would preclude the husband from coming within a particular distance of her at all. She accuses the husband of stalking her.
The husband is 40 years of age and a mechanic by trade. He conducts his own business known as “M”. He seems to have enjoyed good health. He conducts the business from his home and currently works about 21 hours per week. He has not repartnered.
The wife is aged 44 years and is also self-employed. She conducts a business as a rental property manager. She seems to enjoy good health. She has not repartnered but does have a companion with whom she is not yet living and who provided an affidavit for the purposes of the proceedings and was cross-examined.
The two children are S who was born on in February 1998 and is therefore now nine years of age and N who was born on in December 1999 and who is therefore seven years of age. It is clear on the evidence that both parents love their children dearly.
The parties commenced living together in 1986 and married in New Zealand on 14 March 1992, coming to Australia the following month. Their final separation occurred in September 2004. Their relationship is therefore of 17 years duration or thereabouts. They were divorced from each other in January 2005.
Both parties were born in New Zealand and lived there in 1998 when they embarked upon a four year round-the-world working holiday during which time, they came to Australia. Having married, they decided to migrate to Australia permanently.
When they separated in September 2003, the wife left the home. There is a dispute about what happened during the first two months after separation but it does not bear on the outcome of the proceedings.
By the end of 2003, the children were living with the husband on each alternate weekend from Saturday morning until school commenced on the following Monday and then each Wednesday afternoon overnight until school commenced on the following Thursday morning. That continued until July 2004.
In 2004, proceedings were commenced between the parties and on an interim basis, agreement was reached that the children would live with the husband each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday and then each Wednesday night after school over into the Thursday morning before school began.
In April 2006, at the mother’s request, that was changed to the current position which is that the children live with the husband each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday and then on the alternate week, from the conclusion of school on the Thursday until the commencement of school on the following Friday morning. In addition, the husband cares for the children each Wednesday from after school until 5.30pm. There are in place, school holiday and special day arrangements.
The children both attend the same school and have done so since pre-school days. I heard evidence to say that they are doing exceptionally well at school, are liked by their peers, have friends and are generally progressing well.
In respect of property matters, neither party had any assets of any significance at the commencement of the relationship. While the parties were together, both of them worked until the first child was born and thereafter, the wife worked on a part time basis.
Each party contributed the income that they earned towards the benefit of the family and the assets to which I shall turn later in this judgment.
The parties bought the home in which they lived throughout the marriage in January 1993 providing their joint savings as a deposit and otherwise borrowed the funds by way of mortgage.
In the middle of 1994, the parties purchased an investment property and sold it six years later for a higher price and after discharging their respective obligations, the net proceeds were used to acquire two Colonial investments which form part of the pool of assets for division today.
On 1 September 2003, just three weeks before separation, the husband’s father died. He left a will dividing his estate between six children. It seems his widow was either ignored or overlooked. His estate including his home was valued at about NZ$460,000. The husband’s notional interest under that will was just over NZ$76,000. On 24 July 2004, the various beneficiaries executed a Deed of Family Arrangement under which the husband’s mother was to have a life interest in the former matrimonial home, two beneficiaries were to receive cash and the remaining four beneficiaries, including the husband were to became remaindermen in the property in which the husband’s mother lived and in which she held a life interest.

The applications

The wife’s amended application was filed on 6 September 2006. She sought the following orders:

Children

1. That the children [S] (born [February] 1998) and [N] (born [December] 1999) live with the mother.

2. That both parties be responsible for the day-to-day care, welfare and development of the children, whilst the children are in their care.

3. That the child spend time with and communicate with the father as may be agreed to by the parties provided such agreement is evidenced in writing signed by them but failing agreement as follows:-

a) During school terms from after school Friday until before school commences on Monday each alternate weekend. If the weekend when the children are spending time with the father falls on a gazetted long weekend which includes a Friday/ then the father's time with the children shall commence after school Thursday and if a gazetted long weekend includes a Monday, then the father's time with the children shall extend until before school commences on Tuesday;

b) The first half of all gazetted school holidays in odd numbered years and the second half of all gazetted school holidays in even numbered years provided however that if the Father's time with the children is for the second half of a school holiday period such/ period shall extend to include any pupil free day immediately following the last day of the holidays;

c) On Father's Day from 9:00am to 5:00pm;

d) For each child's birthday and the Father's birthday between 4:00pm and 7:00pm if it falls on a weekday and between 8:00am and 1:00pm if it falls on a weekend when the children are living with the mother.

4. If the father has the children for the first half of the school holidays, his time with them commences at 9.00 am on the first Saturday of the holidays and ends at 5.00 pm on the last day of his time with the children under these orders;

5. In each odd numbered year the Father will spend time with and communicate with the children from midday Christmas Eve to 2:00pm Christmas Day and in each even numbered year from 2:00pm Christmas Day until 5:00pm Boxing Day. In each odd numbered year the Mother shall spend time and communicate with with (sic) the children from 2:00pm Christmas Day to 5:00pm Boxing Day and in each even numbered year the Mother shall spend time with and communicate with the children from midday Christmas Eve until 2:00pm Christmas Day.

6. A party that has the care of the children for the first half of the Christmas school holiday period is not entitled to make-up time for the period the children are with the other party for Christmas Eve or Christmas Day under the terms of these orders.

7. The children shall be at liberty to telephone each of their parents at all reasonable times and the parent caring for the children shall assist the children and facilitate such contact and afford the children privacy.

8. Whilst a party has the children in their care during the Christmas school holiday period, that party may travel to New Zealand with the children during such period provided that such travel period must not interfere with the other party's contact rights on Christmas Eve or Christmas Day under the terms of these orders. Not less than 28 days before departure to New Zealand/ the party travelling to New Zealand shall provide in writing to the other party the following:-

(a) Flight itinerary

(b) Telephone contact numbers.

9. The childrens' (sic) passports are to be kept in the Mother's possession and returned to her forthwith by the Father at the conclusion of any overseas travel by him with the children.

10. In addition to any other telephone contact referred to in these orders, whilst the children are in a party's care that party must allow the other party reasonable telephone contact with the children. The parties must actively encourage the children to come to the phone and speak to the parent that has initiated a telephone call to the children and afford the children privacy during the telephone call.

11. If Mother's Day falls on a weekend the children would otherwise be in the Father's care then the children will spend time with the mother between 9:00am and 5:00pm. The Father will not have make-up time with the children.

12. If the Mother's birthday falls on a day the children would otherwise be in the Father's care, the children will spend time with the mother between 4:00pm and 7:00pm on her birthday if it falls on a week day and between 8:00am and l:00pm if it falls on a weekend. The Father will not have make up time with the children.

13. The venue at the beginning and end of each changeover shall be the school attended by the oldest child except that the venue for [N] during days she attends pre-school will be her pre-school.

14. That each party keep the other advised about the children's health and medical conditions and notify the other immediately in case of any emergencies in relation to either or both children.

15. Each party may attend any school or preschool activity which would ordinarily attract parent participation.

16. If the parties are unable to agree to the implementation of these orders they will attend counselling with Relationships Australia.

Property

1. That the Wife retain all right, title and interest in the following assets to the exclusion of the Husband and where necessary that the Husband transfer to the Wife all of his right, title and interest in the said assets:-

• Funds standing to the credit of �he Wife in Commonwealth Bank of Australia a/c No. […];

• The 1997 Toyota Camry sedan presently in the possession of the Wife; and

• The business operated by the Wife trading under the name of [P] (sic).

2. That the Husband retain all right/ title and interest in the following assets to the exclusion of the Wife and where necessary that the Wife transfer to the Husband all of her right, title and interest in the said assets:

• Quintrex Boat and Trailer;

• The business operated by the Husband under the name of [F].

3. That the Court determine the base amount to be allocated to the Wife in these proceedings out of the interest of the BT Lifetime Super - Personal Plan ("the Base Amount") being 70% of the gross value of the Husband's interest in the Fund as at the date of Trial.

4. That the Court determine the base amount to be allocated to the Husband in these proceedings out of the BT lifetime Super - Personal Plan ("the Base Amount”) being 30% of the gross value of the Wife's interest in the Fund as at the date of Trial.

5. That in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Husband in BT Lifetime Super - Personal Plan, the Wife will be entitled to be paid 70% of the splittable payment and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

6. That these Orders bind the Trustee of the Fund referred to in paragraph 3 and these Orders take effect from the operative time being the fourth business day after the date of service of the Orders on the Trustee.

7. That in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Wife in BT Lifetime Super - Personal Plan, the Husband will be entitled to be paid 30% of the splittable payment and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

8. That these Orders bind the Trustee of the Fund and these Orders take effect from the operative time being the fourth business day after the date of service of the Orders on the Trustee.

9. That the Husband and the Wife shall forthwith do all acts and things and execute all deeds, documents, instruments and writings necessary to sell the property situated at [E] in the State of Queensland being all that land described as Lot […] on […], County of [S] Parish of [N] (“The [E] Property") by private treaty at a price agreed between the Husband and the Wife or failing which agreement at a price of $315,000.00.

10. That if The [E] Property is not sold by private treaty within three (3) months from the date of this Order the Husband and the Wife agree to forthwith do all ads and things and executed all deeds, documents/ instruments and writings necessary to procure the sale of The [E] Property by public auction and in particular:-

(a) place The [E] Property with a real estate agent practising as an auctioneer within the area of the property (hereinafter called "the auctioneers") for the sale of The [E] Property by public auction at the earliest possible date;

(b) in the event that the Husband and the Wife do not agree on the auctioneers to be employed then the Wife shall nominate two auctioneers from which the Husband shall select one;

(c) execute all documents requested by the auctioneers to authorise the sale of The [E] Property by auction;

(d) in the event that the Husband and Wife do not agree as to the reserve price to be placed on The [E] Property then the reserve price shall be the mean of two valuations by registered valuers being members of the Australian Institute of Valuers, one obtained and at the expense of the Wife and one obtained by and at the expense of the Husband, such valuations to be made not more than two weeks apart from each other;

(e) each party shall pay the auctioneers one half of any sums requested for advertising expenses in relation to the auction;

(f) co-operate in every way with the auctioneers in relation to the auction of the [E] Property including making a key available/ allowing inspection of The [E] Property at times requested by the auctioneers and ensuring that The [E] Property is in a neat and dean condition at the time of inspection by prospective purchasers;

(g) attend at the auction sale of The [E] Property and negotiate with the highest bidder in the event that the reserve price is not reached;

(h) accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;

(i) execute the contract of sale;

(j) execute all other documents necessary to complete the sale of The [E] Property.

11. That the Husband and the Wife do all acts and things necessary to ensure that upon the sale of The [E] Property the proceeds of sale be paid in the following manner and priority:-

(a) in payment of agent’s commission and auction expenses if any due on the sale;

(b) in payment of legal fees and costs of the sale;

(c) in discharge of the home loan from [A] Loans; and

(d) the balance between the Husband and the Wife in the proportions 30/70 respectively.

12. That in the event The [E] Property is not sold:-

(a) at an auction pursuant to paragraph 10 hereof; or

(b) within fourteen (14) days of the date of such auction by negotiation with the highest bidder at such auction;

(c) the Husband and Wife do all acts and things and execute all documents necessary to cause a further auction of The [E] Property within two (2) months after the date of the first auction and that the terms of paragraphs 10 and 11 shall apply in relation to such further auction.

13. That the Husband and the Wife shall do all things reasonably required of them to facilitate the said sale and any transfers referred to in these Orders. In default of either of them so doing they respectively appoint the Registrar or Deputy Registrar of the Family Court at Brisbane their lawful attorney for the purposes of signing pursuant to s106A of the Family Law Act 1975 any necessary documents to put these Orders into effect, including any Contract of Sale or transfer documents, such appointment to be a valid appointment as attorney as required by the Property Law Act for signing such documents.

14. That pending completion of the sale of The [E] Property the Husband do all acts and things necessary to pay all rates, insurance and necessary repairs and maintenance in relation to The [E] Property as and when they fall due.

15. That the Husband shall indemnify the Wife from liability in respect of the outgoings for which he has accepted liability pursuant to paragraph 14.

16. That as from the date of this Order and until completion of the sale of The [E] Property, the Husband shall have the occupation of The [E] Property to the exclusion of the Wife.

17. That an account be taken of the balance of the Husband and Wife's assets in addition to those referred to in paragraph 1 and 2 hereof such that they be divided between the Husband and the Wife in the proportions 30/70 respectively after taking into account the assets to be retained solely by either party pursuant to paragraphs 1 and 2 herein.

18. Each party shall unless otherwise referred to in these orders retain ownership of all items of personalty, chattels, furniture and furnishings, motor vehicles, jewellery and bank accounts and any chose in action or other property (of whatsoever description or kind) now in that party's possession or under the party's control.

19. Such further or other order or orders that this Honourable Court shall deem appropriate.

At the hearing, the wife sought the following additional orders:

• Injunction

That unless he has the written consent of the mother, the father be and is hereby restrained until further order of this Court from:-

(a) approaching or remaining within 25 metres of the mother;

(b) entering or remaining in the mother's residence at [W] or such other residence as she may have from time to time and her place of employment at [N], or such other place of employment that the mother may have from time to time;

(c) communicating with the mother other than via his solicitors, telephone or sms text message, or in the case of having to give to the mother any document received by him relating to the children by sending such document or a legible copy of it through the post to the mother's residence.

• Parental Responsibility

That the mother have sole parental responsibility for the children, [S], born [in] February 1998 and [N], born [in] December 1999.

A controversial issue here was that the wife sought the permanent injunctions referred to. As counsel for the husband said, these were sought at the “11^th hour”, took the husband by surprised and he felt prejudiced accordingly. Despite that, the husband did not want to seek an adjournment. I gave a ruling during the hearing permitting the wife to seek the orders notwithstanding the objection of the husband.
The husband filed an amended response to the wife’s application on 13 September 2006. He sought the following orders:

That the children [S] born [in] February 1998 and [N] born [in] December 1999 live with the father each alternate week from after school Friday to before school the following Friday and live with the mother in each other week.

2. That the parents have equal shared parental responsibility for all issues in relation to the children including the major long-term issues.

3. That notwithstanding paragraph 1 hereof, the father and mother each spend time with and communicate with the children as follows;

School Holidays

(a) For the father for half each gazetted school holiday period being the first half in odd numbered years and the second half in even numbered years with the commencement of the school holiday period being the end of the last day of the school term and the conclusion of the school holiday period being the morning of the first day of the school term.

(b) For the mother for half each gazetted school holiday period being the second half in odd numbered years and the first half in even numbered years with the commencement of the school holiday period being the end of the last day of the school term and the conclusion of the school holiday period being the morning of the first day of the school term.

Telephone

(c) For the father by telephone at all reasonable times as desired by the children including each Sunday, Tuesday and Thursday in the week the children are living with the mother.

(d) For the mother by telephone at all reasonable times as desired by the children including each Sunday, Tuesday and Thursday in the week the children are living with the father.

Father's Day and Mother's Day

(e) For the father on Father's Day weekend from after school Friday to before school Monday.

(f) For the mother on Mother's Day weekend from after school Friday to before school Monday.

Children's Birthdays

(g) When the children are living with the father during the week as provided at paragraph 1 hereof, the mother spend time with the children on the children’s birthdays from after school to 7:00pm if such day falls on a school day otherwise from 1:00pm to 7:00pm.

(h) When the children are living with the mother during the week as provided at paragraph 1 hereof, the father spend time with the children on the children’s birthdays from after school to 7:00pm if such day falls on a school day otherwise from 1:00pm to 7:00pm.

Parent’s Birthdays

(i) When the children are living with the father during the week as provided at paragraph 1 hereof, the mother spend time with the children on the mother's birthday from after school of the mother's birthday to before school on the following day is such day falls on a school day, otherwise from the eve of the mother's birthday to 7:00pm the following day.

(j) When the children are living with the mother during the week as provided at paragraph 1 hereof, the father spend time with the children on the father's birthday from after school of the mother's birthday to before school on the following day is such day falls on a school day, otherwise from the eve of the mother's birthday to 7:00pm the following day.

Christmas Day

(k) That notwithstanding paragraph 3 (a) hereof; Christmas Day with the father from 2:00pm Christmas Day to 7:00pm Boxing Day in even numbered years and from 12 noon Christmas Eve to 2:00pm Christmas Day in odd numbered years.

(l) That notwithstanding paragraph 3 (a) hereof; Christmas Day with the mother from 2:00pm Christmas Day to 7:00pm Boxing Day in odd numbered years and from 12 noon Christmas Eve to 2:00pm Christmas Day in even numbered years.

4. That changeover for the children (if such day for changeover is not a school day) be at McDonald's at [G].

5. That the mother be retrained from denigrating the father in front of or in the hearing of the children.

IN THE ALTERNATIVE TO PARGARPH'S 1 AND 3 HEREOF

6. That the children [S] born [in] February 1998 and [N] born [in] December 1999 live with the father.

7. That the parents have equal shared parental responsibility for all issues in relation to the children including the major long-term issues.

8. That the children spend time with and communicate with the mother as follows:

(a)      Each alternate weekend from after school Friday (or Thursday if Friday is a pupil free day) to before school Monday (or Tuesday if Monday is a public holiday or pupil free day).
(b)      Each Wednesday after school to Thursday before school.
(c)      Half each gazetted school holiday period (including pupil free days) being the second half in odd numbered years and the first half in even numbered with the commencement of the school holiday period being the end of the last day of the school term and the conclusion of the school holiday period being the morning of the first day of the school term.
(d)      By telephone at all reasonable times.
(e)      The mother's birthday from after school/daycare of the mother's birthday to before school on the following day if such day falls on a school day, otherwise from the eve of the mother's birthday to 7:00pm the following day.

9. That changeover for the children (if such day for changeover is not a school day) be at McDonald's at [G].

10. That the mother be retrained from denigrating the father in front of or in the hearing of the children.

11. That the mother ensure that when the children are in her acre that she take the children to their extra-curricular activities including Jazz dancing lessons and performances, gymnastic lessons, sports days and school concerts.

PROPERTY

12. That the wife do all things necessary to transfer to the husband all her right title and interest in the property at [E] (sic) and that the husband release the wife's name from the mortgage registered against the title of the said property.

13. That the husband relinquish to the wife all his right title and interest in the rental roll business known as ‘P’.

14. That the husband transfer to the wife all his interest in the following;

(a) All the Jointly owned MLC Mastercard Unit Trust ($42,427)

(b) all Telstra Shares (E$4,800)

(c) All the BT Personal Managed Fund C06849230 ($17, 988)

(d) All BT, TFM Fund ($4,466)

(e) All the Colonial Funds ($31,763)

(f) The wife's lap top and all jewellery.

(g) All the wife's Superannuation (BT Liftetime (sic))

(h) The Camry motor car.

15. That the wife retain the sum of $19,960 of the proceeds of the sale of the Colonial shares sold by her in November 2003.

16. That each party retain solely to the exclusion of the other, all other assets and liabilities in their name and possession, including superannuation.

17. That the wife pay the husband's costs of and incidental to these proceedings.

18. Such other or further order as this Honourable Court deems met for either children and/or property orders.

The husband did not resile from that position and notwithstanding that his application for orders was in the alternative, his main focus throughout the hearing was to seek a week about arrangement.

Superannuation

In the pool of assets to which I shall turn, there is a reference to each party having an interest in an accumulation fund. Each party agreed that I was to treat the superannuation at its face value and to leave it in the pool at that value for division. Specific reference was made to the Full Court decision in Coghlan and Coghlan[1].
i)[1] (2005) FLC 93-220
The majority of the time of this hearing was taken up with parenting matters and accordingly, I propose to deal with those reasons first.
A very significant dispute between the parties which gave rise to the wife seeking the injunction referred to, relates to their method of communication. They maintain a communication book and otherwise deal with each by text messages. Since separation, there have been a number of communication books and many entries were exhibited to affidavit material. The wife said that the husband relies upon the communication book and text messaging and that she had tried to communicate with him by telephone about issues associated with the children but his response was to say that he needed to put the matters in writing. The wife said that she did not want to use it any more and if there had to be communication in writing, it should be by email.
There was an enlightening piece of cross-examination of the wife in which she was asked about the reasons for the injunction application and the fact that she had not complained in writing to the husband. Her response was that her husband never listened. She was asked why she did not try the communication book and she replied “I did, the husband says ‘Hi, hope you are having a lovely day’.”
When one examines the messages, it is clear that they are comprehensive and regular and they do bear the description to which the wife had referred.
The husband has a totally different view of the communication. He said that the assertion that he and the wife do not communicate well regarding the children was untrue. I can do no better than use his own words:[2]
The evidence of the communication between the mother and I is constant, constructive, polite, and beneficial for the children.
…
The mother and I communicate with each other several times per week in a variety of ways including, Text Messages, telephone, the communication book and face to face. I have kept approximately 200 Text Messages between us. There are two full communication books.
…
All the communication recorded show that the mother and I are polite with each other and focussed solely on the issues with the children.
…
As deposed, I have over 200 Text Messages kept between the mother and I. I have kept all these messages on my telephone. I have taken a photograph of all these messages on my phone to bring to this court as proof of how well the mother and I communicate with each other.
ii)[2] Para 86 onwards affidavit filed 19 May 2006.
The husband then included in his affidavit various messages as an example of both parties capacity to communicate in March and April 2006.
In his affidavit filed 13 September 2006 in reply to the affidavit of evidence in chief of the wife, the husband said that he found this system of communication worked very well. He said:
It also ensures that things can be referred to if there is a misunderstanding from verbal communication. However, especially since I read the Family Report of the mother reporting false things about how we communicate, I felt it prudent to have things in a form which can be evident (sic) and would keep my wife more honest in her reporting to the court.
The husband went on to say that he was perfectly happy to speak with the mother about things regarding the children but he simply wanted her to re-confirm discussions. He said that the level of communication before the family report was better than it was after its release.
The wife’s view is that this is an obsession and that the communication is not effective or practical. The husband disagrees. His view is that the level of communication is “exceptionally good”[3]. He says that “on average” he sends one or two messages each day but he believed that the wife did not look at her messages for days at a time.
iii)[3] See para 102 affidavit filed 19 May 2006.
It is clearly the husband’s view that the good school results of the children to which I have earlier referred are a direct result of the good communication between he and the wife.
The wife acknowledged that the husband took quite a while to read things and saw no reason why a telephone conversation could not solve the problem. When it was put to her about an incident in April 2006 that the communication book was an example of good communication, she responded by saying that it was effective communication but ultimately, a bit like “banging your head against the brick wall”. The wife said she appreciated receiving “short and sweet” messages but that she felt that the husband did not speak to her in those tones during the marriage and she now found it a bit strange. She said that his comments made her feel uncomfortable. Her view was that all of this was an attempt to make the communication appear as if the parties were good friends and they were not.
When the husband was cross-examined, he went further and said that the communication was “beautiful”. When pressed as to why the material was voluminous, the said that it was so that he could look back and see the best things for his children were written down. In fact, what he does is write down everything that occurs so that there is a record.
Family Consultant Ms T to whom I shall refer in some detail later, had two interviews with the parties. At the first, she refused to look at the voluminous writings of predominately the husband and when asked about the communication, she said that it did not occur to her that he might be slow in writing but as a generalisation, the writings and text messages smacked of excessiveness. When asked about whether there was any other description, she acknowledged that he was passionate. In her report,[4] the family consultant declared her opinion. She said that this documentation by the husband was excessive and that his behaviour towards his former wife was unwelcome, unsolicited and causing her considerable emotional distress. She opined that his behaviour was stalking and that it was imperative that it cease.
iv)[4] Para 63, 20 December 2006
The wife gave measured and calm evidence. She was direct in her answers. She impressed as a truthful witness. She made appropriate concessions in relation to various communications and it was clear to me that she was frustrated about the level of communication and wanted it to cease. The husband on the other hand articulated a view that this form of messaging was all about the welfare of his children and that it was important and necessary for there to be an accurate record. He candidly conceded that he did not trust his former wife not to accuse him of falsely not giving him information about the children when they were in his care. If he had stopped there, I would probably have accepted his explanation about his focus but he went a further step and said:
I know that if there is any way she can spin a lie, she will. That is why she is in real estate.
I find that the level of communication is excessive, unnecessary and harassing.

Trust

The last quote from the husband indicates the level of trust that he has of the wife.
The husband made no secret of the fact that prior to separation he believed that his wife was having an affair. He believed this because the odometer on her motor car would register a large number of kilometres after the youngest child had been placed in kindergarten. In addition, as he not only washed the car but serviced it, he noticed dust on the outside of the car which the wife explained as having been collected from the local road. He did not accept that explanation. He said that when he challenged the wife about the affair, she denied it. He said that he did not get angry at all notwithstanding that he had checked the odometer for between a year and 18 months and then just gave up. The wife in her affidavit denied any such affair but the husband’s view is that nothing of what she said was true.
Sadly, it is clear that the husband still believes that the wife is untruthful and that adds to the dilemma about how they communicate.

Care of children during the relationship

The wife’s view was that during their time together, the husband was not interested in the children’s activities but had now become obsessed about “being an important person in their lives”. Unlike before separation, according to the wife, he is now significantly involved in attending every medical appointment. When she was challenged about her view of the husband’s involvement prior to separation, she acknowledged that the husband would put the children to bed and “perhaps” read a story but otherwise, she did everything for the children. She acknowledged the husband’s “bond” with S but denied any similar attachment to N.
The husband painted a totally different picture. Having worked from home, he had had the ability to be significantly involved in the lives of his children and that he and the wife were joint carers. This was particularly so as the wife was studying for her real estate licence and was then working two hours per day managing real estate properties. He pointed out that on a daily basis, he was involved in the domestic chores and taking S for medical appointments. He opined that the mother was depressed after the birth of both children and because of his time and effort, he remained the primary carer for them.
It was difficult to discern exactly what happened during this period and it may not necessarily matter having regard to the time that has elapsed since separation but it would certainly appear that both parties were integrally involved in the lives of their children up until separation.

Care of the children subsequent to separation

The contrast between the parties respective parenting of these children is stark. The wife said that the children have lots of quiet times with her and are happy and contented. She said that there were times when the children did not want to go to their father and complained about things that he was doing and some of those incidents I shall refer to specifically in a moment.
The husband on the other hand and in much more detail, set out the activities including horse riding and bicycling of the children in addition to extra-curricular activities which include dancing and sport. He said that he encouraged their interests in reading and education, a fact for which he was given credit by the Family Consultant. He talked about the times he spent telling them stories of the four years that he and the wife travelled around the world. His description of the children was of them being settled and happy.
There was no evidence that the children were not physically cared for in the home of each particular parent.

Family Violence

Counsel for the husband in final address said that none of the evidence fitted within the description set out in s 4 of the Family Law Act1975 and that matters such as the Magistrates’ Court Protection Order occurred so long ago, arising out of the circumstances of separation and where no finding of fact was made, did not fit within the family violence category particularly as it related to the presumption in s 61DA. Similarly, counsel said that the allegations made against the wife by the husband were not alleged for the purposes of the presumption and that accordingly they did not apply. He stressed the safeguards in the legislation were there for the purposes of the rigid application of avoiding the exposure of children to violence. He said that on no view could the behaviour of the husband and the wife amount to an offence within the definition of s 4 of the Act and there was nothing in respect of behaviour that would be sufficient to rebut the presumption through what I shall term the second limb in s 61DA(4).
The issue of the behaviour of the parties towards each other is important in this case not only in respect of the presumption but also in relation to their responsibility as parents. Having regard to the view I have already expressed about communication, it is clear that whilst it might be possible for them to make decisions about the future of their children in different ways, they have different views about raising the children. That is not unusual but it becomes a problem if those different views clash to the extent that it is not in the best interests of the children.
In a very general and broad-sweeping statement, the wife asserted that she left the marriage because of the behaviour of the husband and his violence and abuse towards her. She relied upon the affidavit of Ms R who was a neighbour to confirm that the husband was seen yelling at the wife on one occasion and she referred to another incident on 27 March 2004 to which I shall refer in a moment. Ms R was not called for cross-examination but I find her evidence helpful in the sense that it corroborates what the wife says about the aggressive nature of the husband.
Whilst the wife was general in her assertions about what happened during the marriage, the husband was more specific but not to the extent that I had a clear picture of when, where and how some events occurred. He referred to the fact that in the 18 month period prior to separation, the wife punched him in the head with a closed fist on approximately six occasions per year and swore at him including in the presence of the child N. He said that throughout the relationship, the wife constantly verbally abused him about financial issues.
In his affidavit in reply to the evidence in chief of the wife, the husband denied that he had ever been violent or abusive towards her and that he always treated her with respect and gentility. He said that he was a very calm person completely opposed to any violence. He claimed that he was never aggressive or bullying at any time even when his wife was having an affair during the last 18 months of the marriage.
As I have already pointed out, the wife gave evidence in a calm and conciliatory manner and it was hard to picture the person described by the husband. Because of the corroboration of Ms Re to which I have referred, I am inclined to think that the wife’s version was correct but I am not prepared to make any specific findings in relation to a number of matters of a general and unspecified nature. The reason for that is that I also have the evidence of the husband’s mother who described the wife as the “domineering partner”. The husband’s mother said that she still had a good relationship with the wife. She might be expected to be reticent to concede that her son was aggressive and she did report that she had seen a “video tape” of the wife screaming at the husband after separation. There was nothing that objectively supported the husband’s view about violent behaviour of the wife during their relationship. Accordingly, in respect of general matters, I am not prepared to make any finding of fact.

The death of the husband’s father

The wife referred to an incident just weeks prior to separation during which the husband was advised of the death of his father in New Zealand. She reported that the husband’s behaviour frightened both she and the children and that she drove him to the airport to enable him to fly to New Zealand during which time, in the presence of the children, his language about her supposed infidelity was graphic. She reported that he grabbed the steering wheel a number of times and that on one occasion he pulled the handbrake on while they were driving. The husband responded by saying that the wife refused to let him take the children to New Zealand and insisted that he go alone. He asserted that she pushed him down the stairs as a result of which he received a cut knee and torn trousers. Having been pushed down the stairs, she continued pushing him into the car and then drove him to the airport. He said that he denied his behaviour on that day was in any way such as could be seen to be behaviour that would frighten either the children or the wife. He added that his wife was having a sexual affair with another man at this time although the details were unknown to him. In relation to the description of his behaviour by the wife, he simply described it as having been “fabricated”.
Bearing in mind the husband’s evidence about monitoring the travelling of the wife for 12 to 18 months prior to separation (see paragraph 43 above) and the undoubted distress that he was suffering at that time as the result of the death of his father, along with the view that I have already taken about the abuse in the household as supported by Ms R, I find the wife’s version more probable and I accept it. The importance of this incident was that it occurred in the presence of the children.

Incident on 20 September 2003

An incident occurred on 20 September 2003 which seems to have precipitated the separation between the parties. In this incident, an argument appears to have occurred between the parties when the youngest child was ill. The wife says that the husband demanded to know with whom she was having an affair and grabbed her about the shoulders and pulled her out of bed. She reported that one of the children starting screaming hysterically and the youngest child came into the room. The husband recalled this incident but denied it occurred the way the wife described. He said that he knew she was “having a (sic) sex with another man” at this time but that he was not obsessed about it nor was he trying to find out from her whether it was true. He said that his wife told him that she wanted another baby but because of her infidelity, he could not agree with the arrangement. He said she became angry and punched him in the head. He then reported that both of them were yelling. He said that because the wife was screaming at him and had already punched him, he left the room. Most importantly, he reported that as he walked into the lounge room, away from the wife’s hearing and view, he “gave a punch to the wall”. He said the children were asleep in their beds at the time.
This particular incident is the one also reported on by Ms R who reported hearing the wife’s voice. She was sufficiently concerned to go out of the house and call out over the fence but it was quite clear that her concern was for the wife and her criticism was directed to the husband. I accept the wife’s version.

The DVD incident 27 March 2004

By March 2004, the parties had been separated for nearly six months. They had what appeared to be a working arrangement for sharing the children.
On 27 March 2004, the wife was released from a hospital operation procedure and drove to the husband’s home to collect the children at 11.15am. There was some dispute between the parties as to what arrangements had been made for the wife to collect the children but in any event, the husband said that she was running late. He said that the wife came up the stairs to the front door of the home whereupon N jumped on her side and the wife dropped her and cried out. It was common ground that the wife had had surgery including stitches to a wound. It was put to the husband in cross-examination that he aggressively asked to see the wife’s wound which he denied but he acknowledged that both he and the children were “interested” in the wound and that he certainly asked to see it. He confirmed that the wife declined but pointed to the place on her shorts where the stitches and the bandage were. He then said that the wife asked him to put the children’s bags in the car at which point he noted “an X-rated video” called “netgames” on the seat of the car. In his affidavit[5] he described the cover of the “video” as having “a picture of a person being knifed to death”. He said that he was against his children seeing such things and that they were only five years and three years of age respectively at that time. It was put to the husband that he accused the wife of watching pornography but he denied that. He said that the wife leant over, picked up the “video” and gave a cry of pain as she held it in front of her. In evidence he said: “I said can we put it away from the girls”.
v)[5] Para 32
He conceded that he presumed the DVD contained pornography because it was about a policewoman seducing five people on the internet, something which he presumably could only have known by reading the fine print on the small cover. He said that it had blood being shown on the cover and as a result, he asked the wife to put it away but she would not. I digress here to say that this cover was tendered as an exhibit but it must be recognised that the exhibit is presumably a blown up size of the original cover. An initial examination of the expanded cover requires a careful examination to see just what the figures depicted are doing. My first impression was that it was nothing graphic, violent or pornographic. It is only when a closer examination of the printing and the somewhat blurred photographs occurs that once can see that it is an adult movie. The husband then said that the wife put it in the compartment behind the seat so he went around to the other side of the car, took the video and went upstairs to get a bag to cover it. As he did so, he said the wife punched him and swore at him about giving the video back. He maintained that he was not upset notwithstanding what he had seen and being punched. To obtain the video, he conceded that he had to lean over the girls who were seated in the back of the car. He described them as simply “listening to a CD”. He was adamant that they did not get upset and that the wife had done this in front of the children “lots of times”.
The wife’s version was markedly different. She said that he got into the car and proceeded to jump on top of her, putting his knees into an area of her stomach where she had had the surgery. Having regard to the fact that the husband described the wife as picking up the DVD and holding it in front of her and the husband’s concession that he actually went to the driver’s side, her version is more plausible. The husband described having gone around to the other side of the car to collect the DVD from the pocket of the back seat and he maintained that the children could still see it from there. Initially he had said that the children were simply listening to the CD but when it was put to him that they were screaming, upset and crying, he said he did not know and did not think that that was so. There was an air of uncertainty about his recollection.
Ms R deposed to the fact that she was in her kitchen on this day, heard the wife screaming and went out onto her veranda. She saw the children strapped in the back seat of the car. She saw the husband inside the car on top of the wife. Whilst the version of Ms R in terms of what she heard is inconsistent with what each of the parties say occurred, she does report the fact that the husband was inside in the car, that S was screaming and the wife was crying. As I have already mentioned, Ms R was not called for cross-examination. Ms R’s evidence to some degree corroborates the wife’s version. I find the wife’s version is the correct one.

The application for a protection order

I am supported in the view about what occurred on 27 March 2004 by the fact that on 29 March 2004, the wife made a declaration seeking a protection order in the Magistrates Court. This document was exhibited to her affidavit. In that document, she broadly repeats what occurred.
An interim protection order was made in the absence of the husband and that continued until 3 August 2004 when the parties agreed to sign an undertaking which resolved the matter and no further orders were made. The undertaking was in the form used by this Court. Each party without admission of the facts, undertook not to assault, harass or intimidate the other.
For the purposes of the Act and the presumption to which I have already referred, I accept that there is no family violence order and a temporary protection order was obtained without the matter being properly litigated. However, the very fact that the wife sought the application in my view supports the view that her version to which I have referred of the incident on 27 March did occur.

Other incidents

There were other incidents referred to by the wife that occurred prior to the DVD incident. Having regard to the conflict in the evidence between the parties, I make no finding about them. I am not prepared to say that because I have found other incidents occurred as I have, these occurred in the way either party alleged.

April 2006; wife changes CONTACT arrangements

Around April 2006, the wife described a situation in which the children were “scratchy and miserable” after school on a Thursday afternoon. The husband had had the children during the alternate weeks from Wednesday night until Thursday morning. The wife said that the children complained of disliking the arrangement because they found it disruptive to their routine. The wife then proposed to the husband a change so that the children went to the husband on the Thursday night instead of the Wednesday night. The husband agreed. The wife said that she tried to explain to the husband that the children were not coping. This communication occurred through the Communication Book.
The husband’s first affidavit of evidence in chief was filed on 19 May 2006 so this particular incident was fresh in his mind. He reported[6] that he agreed through the communication book to “trial” a different contact arrangement. He said that the wife proposed the arrangement and he saw nothing wrong with it although he did not agree with her reasons. By his explanation of his understanding of the wife’s “reasons”, I understood that he meant that her complaint was as I have set it out above. He pointed to this ability to change as evidence of good communication as well as evidence that a shared arrangement would work very well.
vi)[6] Para 96
As his the husband pointed out in his second affidavit however, the wife did not set out the real reason why she changed the arrangement. He denied the children were tired or scratchy or miserable and also said that neither child complained that they did not like the Wednesday night arrangement. More importantly, it is now apparent that the husband was unaware that there had been significant involvement between the Department of Child Safety and the children at this time.
The wife was cross-examined about this particular period of time and said that S had told her that the husband would not listen to what she, S, had to say as a result of which the wife sought professional advice. Thereafter, there was a visit every fortnight for about six months with a counsellor speaking to S. The wife reported that she was not privy to the information that the S gave to the counsellor. She said that the counsellor taught S coping skills and that progress had been made to the extent that S was much happier. What had precipitated this request for assistance professionally was the fact that for four weeks in a row after lunch, S complained of stomach pains. The wife said that she thought that the best way to approach the issue and she discussed this with eight year old S, was to obtain some advice. She conceded that she did not tell the husband the full extent of what was happening but set out the proposal to change the arrangements in writing.
Whilst I found the unilateral nature of the wife’s action of concern, it was interesting that the husband was not made aware of the counselling by the child either. In this case, the wife’s argument is that the children do not cope with the stress that the husband places them under and having heard from the family consultant, I find that this is an example of the poor relationship between the parties. This was an incident of such significance to the welfare of S but the wife and child had to hide it from the husband.
When the wife was cross-examined about not telling the husband, she responded by saying that she thought she was doing him a favour and when she was asked whether in hindsight she regretted not telling the husband, she emphatically responded that she did not.
In the context of my findings about the way that the husband views things concerning the children and in particular, his view that everything is working very well, this incident is of concern but I am not prepared to criticise the wife for hiding the counselling from the husband.

The relationship between the parents and the children

I have indicated the physical things that the respective parents do with the children seems positive for the children, the wife reports that all is not that well.
The wife reports[7] that S had told her that her father had become angry with her, grabbed her around the waist and pushed her backwards hard against a wall. She said that S told her that she knew that her father did not mean to hurt her but in fact had done so. The child reported that it was scary. The wife’s evidence was that it was the child N who told her what had happened to S. The husband not only denied the incident but said that the wife had never raised it with him and accordingly, had “fabricated” the incident.
vii)[7] Para 65
In her affidavit filed 12 February 2007 the wife reported that both children were uncomfortable at changeovers when both parents were present and S in particular was sensitive. She reported that the husband either spread his arms out and beckoned them to run to him or that he was verbally aggressive towards her, ignoring the children. The husband’s response to this material is that he had never seen the children uncomfortable in his presence at changeovers and he was never verbally or physically aggressive at that time.
As late as days prior to the commencement of this hearing, the wife reported that the children had returned home very tired and emotional and in particular, S was teary. She said that the children told her that their father was not happy about what the family consultant had said in her report. In his affidavit filed by leave on 12 February 2007 in response to that, the husband said:
I deny quizzing the children about the Family report or this matter generally. It is true that they told me part of what they’d said to the report writer but it was unprompted. I believe it is inappropriate for me to discuss the matter with the children so I do not do so.
Each of the incidents that I have just referred to caused me serious concern. Each is uncorroborated. What I found most disconcerting is the concession by the husband that the children did, in an unsolicited way, tell him what they had said to the report writer. Having regard to the concern that the children expressed to the report writer, I have grave doubts about whether it was as the husband reported, unprompted. It was the husband’s position throughout the proceedings that he always does what the children want him to do and he referred during his evidence in court to something which he described as a “family meeting” where everyone could say what they liked. He said that S had told him at Christmas that she wanted 7 days out of 14 but N wanted 5 days out of 14. He said that they had talked to him but he did not talk to them about this issue. This apparently occurred at a family meeting. He told me that he what he would normally do was declare “this is a family meeting” and that thereafter either he or the children could say anything they wanted to. He said: “If they want to say I’m an arsehole, they can say it or that I’m a pain in the bum”.
I am very conscious of the different styles of parenting that these parties have but I find on the balance of probabilities that the matters reported by the wife in respect of the three incidents immediately mentioned above did occur as she describes. I am very mindful of the fact that the different parenting styles may have contributed to that dilemma and that the children may very well have embellished or exaggerated the exact events but they highlight the issue to which I shall turn in a moment as reported by the family consultant.

The evidence of the paternal grandmother

In this hearing, I had the benefit of reading two affidavits by the paternal grandmother and heard her cross-examined. She gave detailed evidence about her observations of her son with the children. She has been a foster parent for the past 30 years and still has three foster children in her care. She has also had the difficult task of caring for a child with Downs Syndrome who is now 15 years of age. She trains new foster parents for the relevant department in New Zealand. She made the very significant point that:
There is nothing in my observation of the children with their father over the years which gives me any concern for his ability to provide all the love, care and emotional needs of the children.
Much of her affidavit was otherwise directed towards the communication between the husband and the wife. To a large extent, the good relationship between the wife and the husband’s mother bodes well for the future. Sadly, the observations that I have made in which I have been critical of the husband for his behaviour would not probably have been seen by his mother nor would I expect that they would have occurred in front of his mother. Notwithstanding the long experience of the paternal grandmother, I prefer the evidence of the family consultant about the relationship between the parties and the children and the problems of the children.

Capacity as a parent

The husband said that he was responsible for the children’s development and learning and as such, he tried to teach them things which he believed were beneficial for their development. He said that the children should have good healthy homemade food and that that is what he gave them at his house whereas the mother fed them takeaway food. He commented that this was not a parenting style difference because the mother believed in healthy homemade food but it was just that she did not have the time that he had to prepare it.
The husband’s view is that the wife has a feeling of exclusive ownership of the children over him. In respect of discipline, he said that he had never yelled at the girls or physically disciplined them and if on a rare occasion they were naughty, he gave them time out in their room for about five minutes.
The wife acknowledged that she and the husband do different things with the children and emphasised more that they have “quiet time” at her house. To her credit, she acknowledged that their respective parenting styles “complemented” each other.
However, it is difficult to resist the view that the children are placed under an enormous amount of pressure by the husband to conform to a view that he holds about how they should be brought up. That comes out clearly from the intensity of the husband’s view about raising the children. What is disconcerting however is that whilst he says that he encourages the children to respect their mother and that they talk of her in happy and contented terms, he has very strong and articulated views about the fact that she is a liar and untrustworthy to the extent that she manipulated the children to express the views that they did to the family consultant.
I was unable to find any evidence that would support the husband’s view particularly having regard to when the wife was cross-examined, she acknowledged his significant contribution towards the development of the children and her only expressed reservation about his parenting was the intense nature of what he did with the girls and his poor communication skills with her.

INCIDENTS OF CONCERN.

The broken arm incident; Easter 2005

I shall now refer to three incidents that in my view, epitomise the problem in the relationship between the parties.
The first occurred around Easter of 2005 when S broke her arm while being cared for by the husband. She was taken by him to the Hospital. The wife in this hearing complained that S had wanted her to come to the hospital but that her father had said he was quite capable of looking after her and that she did not need her mother. In her first affidavit, the wife did not say very much about the significance of that event but it became more important during the hearing.
In his affidavit, the husband reported that he did ask S whether she wanted to ring her mother but that S reported that she did not wish to so speak to her mother. He went on to say that he did not press the issue with S because she was already distressed from the accident. He said that he did not telephone the mother because he was busy “nursing” S in the hospital and he could not telephone from where he was because there were signs indicating that he was not use a mobile telephone.
At first blush, this incident looked innocuous. However, in cross-examination, it appears that the accident occurred around 5.00pm to 6.00pm and that the child was taken immediately to hospital and operated on under anaesthetic in the early hours of the following morning.
The husband repeated what he said in his affidavit and went on to indicate that he was busy monitoring the pain levels of the child and that she was laughing and joking. He said that there were no nurses so he was caring for S. The husband was asked why he didn’t telephone the wife and he said: “I asked S if she wanted to speak to Mum and she said ‘no’ so why shouldn’t I keep her best interests at heart. I hope she (the mother) would do the same thing for me”.
What I found bizarre was that the husband did not text the wife let alone tell her about the incident by telephone until the following day. His view was that he did not have an opportunity to make a telephone call. She said that he thought it was more important to care for the child’s health.
The husband said in evidence under cross-examination that he went on what the child had said and that he was only trying to “make it nice for her”.
When questioned about the serious nature of the injury, he said that if it had been any bigger than that, it would have been more important. He conceded that he did not ask the nurses or any other hospital staff to telephone the wife and that he sent a text message to the wife rather than telephoned her so that she had a record of all the things that had happened. He did say that he telephoned the wife after he had sent the text message and that the wife was upset.

Mr Cameron for the wife argued that it was unlikely that the husband’s income would increase and that therefore unlikely he would contribute in any greater way in future towards the financial support of the children through child support.

THE POOL

The first step in the four step process however is to look at the pool of assets. Each party provided a schedule. Whilst there was no major disagreement about the various items, there was significant dispute about what items should be included in the pool, what should be left out and what values (if any) should be attributed to the various assets.
There were two witnesses who gave evidence during the proceedings whose attention was directed towards financial matters. Mr W filed an affidavit directed towards the value of the wife’s rental property business.
Mr W was appointed by the Chief Executive Officer of the Real Estate Institute of Queensland and although there was some dispute about whether he was a single expert, I treated him as an expert witness of the court.
Mr W set out a long history of his various involvements in the valuation business and neither party challenged his expertise.
He considered all of the relevant matters associated with the valuation of a rent roll. He examined the list of owners and properties at both the time of separation and 17 June 2006. He looked at various financial documents and an audit report which was dated as at 30 September 2005. He said that he had discussions with the wife.
In his valuation, Mr W looked at various methods of valuation but ultimately determined that the purchase price of businesses in the real estate industry and in particular a rent roll, was by rule of thumb. The difficulty with this methodology is that it is usually designed for the purposes of a specific sale so that the vendor and purchaser have a clear understanding of what each is paying and receiving. In a case such as this, there is no intended or potential sale.
The other problem associated with this particular valuation is that there is a risk of retention of landlords on the roll. Mr W described a situation where, in most cases, the formula is used but then an allowance has to be made for “retention losses”. At the time of the settlement of the sale, there is a reduction on the valuation price for each landlord not brought across with the rent roll sale. The formula has a methodology for calculation of those matters but otherwise the parties agree on a percentage on the sale to be set aside to cover those losses.
Mr W determined that as at 27 September 2003, the total open market value of the wife’s business was $30,244 less retention losses. That was on the basis of a willing vendor and a willing purchaser. He then did the calculations for a forced sale with an unwilling vendor and gave the total open market value at $11,747 less retention losses.
The valuation as at 17 June 2006 was totally different. That was in part because of the fact that subsequent to separation, the wife had added to the rent roll by a number of properties. Mr W opined that as at 17 June 2006 with a willing vendor and willing purchaser, the total open market value was $71,607 less retention losses. If there was a forced sale with an unwilling vendor, the figure was $37,054 less retention losses.
Mr W made himself available for cross-examination by telephone and he said that in this particular case there was a high degree of risk associated with the value if one was looking at it from the perspective of a purchaser. That was so because the owners of the property on the roll were all friends of the wife. Consequently, the circumstances of a sale would depend on whether they would agree to assign their properties to a new buyer. The greater the friendship, the higher the risk.
Mr W said that at settlement, a percentage was retained to make sure that retention losses were covered. This retention period went beyond the settlement of the sale period.
As Mr W pointed out, the value really depended upon what the landlords did but he reiterated that the closer the friendship, the greater the risk.
Mr Foley on behalf of the husband cross-examined Mr W in relation to his evidence. Mr W said that he did do a spot check on the agreements to see whether they were correct but he had not seen 2006 financial figures. He did an assessment as to the risk and pointed out that in his view, there was a potentially severe loss here because of the ratio of landlord to business owner. In a willing vendor situation, the vendor has a vested interest in encouraging the landlords to transfer. In a case of an unwilling vendor, if that occurred in this case, it is clear that there would be a large retention loss.
Mr W said that if the rent roll business was sold, he would have expected a two-thirds loss in respect of the 2003 valuation and a 50 per cent loss on the 2006 valuation. Mr W had little difficulty in saying that the end result was always less than the top valuation price.
Counsel for the husband asked Mr Foley what price he would put on the value in the hands of the wife on an ongoing basis and he said that it was certainly worth $71,607. He made the observation that a bank would take that rent roll as collateral for borrowings. However, the question of how one would then determine the retention loss was unanswered.
I accept Mr W’s evidence as helpful and a good guide in circumstances where each party looked at an amount differently to be included in the pool for division. On the basis of Mr W’s evidence, I am able to find that the 2003 figure would have been $12,352 but the 2006 and current value is $35,803. I have simply taken the gross figures as determined by Mr W and his expected retention losses in the percentages that he mentioned.
For the purposes of the pool therefore, I have included the figure at $35,803. There was some argument about the fact that after separation, the wife had increased the value by adding new properties. That must be offset by the springboard effect of the husband having been a financial contributor and assisting with the children whilst the wife was studying for her real estate agent’s licence. However, there can be little doubt that the wife has used her friendship subsequent to separation to increase the size of the rent roll. The husband’s role in caring for the children on a part time basis subsequent to separation has also enabled the wife to continue her role in developing the business and on that basis, I do not intend to make any adjustment to the value into the pool nor significantly distinguish between the parties’ contributions on that issue.
At my suggestion, notwithstanding that the wife had put into the pool the values of household chattels, I have excluded them on the basis that they are of nominal value and in reality, the parties’ children will use those chattels whilst they are living with them.
The parties agreed on the value of their respective superannuation interests. They also agreed on the value of the Telstra shares.
I have taken the value of the boat and the wife’s car as accepted figures and unchallenged.
There are slight differences between the parties in respect of the mortgage indebtedness but I was assured by counsel for the wife that the figures had been updated and accordingly, I have used the figures of the wife.
The same issue applies in respect of the current values of the investments.
Another major dispute between the parties relates to monies that were in existence at the time of separation but have now been used for legal fees, living expenses or debts. I propose to deal with each of those issues in turn.
The first item in the wife’s schedule under the heading of “Add Backs” was the amount of $19,960 which she had retained. In her affidavit, the wife says that she has spent that money on legal fees, medical expenses, household and living expenses, rent, household goods and credit card debts as well as on the children’s extra-curricular activities[10]. The precise amounts were not quantified.
x)[10] See para 90.
Because I propose to reduce the husband’s similar sum that he held at separation because of some amounts expended by him, I propose to give the wife a similar reduction even though the wife did not quantity exactly what she had spent. I shall do the exact calculations in a moment in respect of the husband’s funds but I propose to add to the pool the sum of $8,834 instead of the sum of $19,960 of the wife.
The second add-back relates to a Commonwealth Bank account held by the wife in which there was a sum of $4,661. I see no reason why that should not be added back as the wife has done using her own figures.
The first of the three add-backs in the hands of the husband sought by the wife is a sum of $20,071. The husband[11] refers to the fact that he spent the sums of $6883 for a taxation bill for the financial year 2003 and a joint credit card debt of $4353.98 that had accrued at the time of separation. I have allowed both of those amounts and therefore added back the sum of $8834 to the pool. As will be seen from what I have earlier said, both husband and wife had similar amounts in their accounts at the time of separation and I have therefore attributed to them the same amounts for add-back purposes now.
xi)[11] Para 130.
The second relates to a sum of $6600 which the husband concedes he retained and I see no logical reason why that should not be simply added back as well.
At the time of separation, the husband had an amount in the Colonial account which he has managed to grow to $32,358. This amount of money has been spent on legal fees and other unquantified things and should be added back[12].
xii)[12] See Farnell (1996)FLC92-681
Accordingly I find the pool of assets to be as follows:
Former matrimonial home     $315,000
Less mortgage     56,714  $258,286
Investment accounts  72,054
Wife’s car  2,100
Husband’s boat and trailer  8,000
Wife’s superannuation  15,510
Husband’s superannuation  102,708
Telstra shares  4,390
Wife’s business  35,803
Husband’s add-backs  47,792
Wife’s add-backs     13,495
Total  $560,138

THE REMAINDERMAN INTEREST

Although it was not mentioned in the husband’s affidavit material, I have already set out the details of the husband’s remainderman interest in his father’s estate. I have not included that as an asset in the pool for reasons which I have already indicated. It is a property that may not fall into the hands of the husband for years to come and in any event, it accrued right at the end of the marriage and probably, in reality, after separation. On that basis I propose to treat it as a resource in the hands of the husband.

CONTRIBUTION

Turning to the question of contribution, I have already mentioned that there are arguments relating to the wife’s greater contribution to the business subsequent to separation but I reject them on the basis that the base was there at the time of separation and the husband contributed to the capacity of the wife to earn that privilege during their marriage. In addition, both parties have provided physical and financial support subsequent to separation.
I have also not taken into account in any significant way, the fact that the husband has had the benefit of the home because although he has paid less out of his pocket for the privilege of living in the home, there was no significant disadvantage to the wife whose income was slightly higher including having the benefit of the family tax benefit arrangement.
I shall return below to the question of contribution to superannuation particularly subsequent to separation.
I have already commented upon the question of the post-separation contribution to the wife’s business.
Accordingly, I find that in respect of contribution and in particular the contributions described in paragraph 175 (a), (b) and (c) above, the pool of assets ought to be divided equally.

SECTION 75(2)

In respect of the third step of taking into account the matters under s 75(2) of the Act, the Act says that a court is obliged to contemplate all of the matters as they apply to each party, of the following:
(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 an adequate income;
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; 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;
(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 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.
There are no matters concerning the parties’ respective ages or states of health that should affect my decision.
I have taken into account the income of each party. Evidence was given by Mr O a chartered accountant called on behalf of the wife as to the earning capacity of an employed “A” grade mechanic to the effect that the husband could earn more in his capacity as a qualified mechanic should he get himself full time employment or earn more than what he was currently earning in his own business. He pointed out that for an employee wishing to be working part time because of parenting reasons, the potential job opportunities diminished but he could potentially find casual rates and part time rates which were higher than he was currently earning. As Mr O said, it may well be difficult in the major motor vehicle dealership industry but there might be opportunities in the smaller workshops.
Various discussions were held about the costs of maintaining a business and operating from home but in my view, all that that established was that the husband could probably earn more than what he is currently earning but I suspect not much. I do not intend to distinguish between the parties in respect of their earning capacities.
The property of each party is limited having regard to the pool of assets and it is unlikely in the foreseeable future that, from their gainful employment, they will improve their capital basis.
I have already mentioned the remainderman interest of the husband and have treated that as a financial resource. However, there was no actuarial evidence as to when it is conceivable that the husband will benefit from that remainderman interest and in any event, my view is that the amount is modest.
A significant feature in this case relates to the fact that the wife will have the major care and control of the two children of the marriage. The husband less so having regard to the amount of time that I propose to order. That will certainly enable the husband to seek out more work should he so desire.
I have taken into account the commitments that each party has at the moment, including the desire of each to have a home and it is quite clear that on either view, the husband and the wife will both have a mortgage of some substance.
Neither party has a responsibility to support any other person.
The wife is currently receiving Commonwealth benefits to supplement her income but that has not influenced my decision in any significant way.
I am obliged to take into account that where the parties are separated or divorced, they are entitled to a standard of living that in all the circumstances is reasonable. Unfortunately, in this case there is little I can do to assist by making property adjustments and each will have to cut their cloth according to their means.
I have taken into account the wife’s desire to protect her role as a parent but she appears to have adequately supported herself and the children to date by her activities as a real estate agent and it would appear that she has the capacity to expand that role if she so desires.
I am satisfied that neither party is cohabiting with any other person to the extent that I should take into account the financial circumstances of that relationship. I am quite satisfied that at this stage Mr M is not living with the wife.
I have taken into account the child support paid by the husband and having regard to the role that he has played in the lives of the children until now, I make no criticism of him. Whether he continues to expand his work and as a consequence pay a far more appropriate amount of child support because he will have less time with the children remains to be seen. There was a suggestion that the husband through the communication book was focused on child support rather than on parenting but it was hard to find that as a criticism.
There are no other factors that I should take into account other than superannuation and I have left that until last because it was agreed that although the husband would desire that the wife take all of the superannuation to save him having to pay her much cash, it was accepted that she would need accommodation and hence cash.

Superannuation splitting order

I am conscious of the fact that the orders I make relate to a modest pool, a fairly substantial portion of which amounts to superannuation, and that that sum will not benefit either party for years to come. Having regard to that particular fact, I propose to give the wife a mix of cash and superannuation and to that extent, I propose to make a splitting order. I have been advised by the parties that appropriate notice has been given to the trustees of the fund and there is no objection by the trustee of the husband’s superannuation fund to a splitting order being made.
In Coghlan and Coghlan[13] the Full Court said[14]:
We consider that because of the obligation of a s 79(2) to make a just and equitable order, then in order to ensure such a result the Court should wherever there is a superannuation interest apply the provisions of s 79(4)(a) to (g) (which will include the matters contained in s 75(2)) to that superannuation interest whether or not a splitting order is sought.
…
It may well be that if a superannuation interest is considered having regard to the matters in s 79(4) in a case where a splitting order has not been sought by either party, it will become clear to the Court on such consideration that the only just and equitable order which can be made in the particular case is a splitting order. The Court can then afford the parties an opportunity to be heard in relation to such an order with the requisite notice being given to any trustees of the superannuation fund and a formal valuation according to the Regulations, if necessary, contained.
xiii)[13] at 79,645
xiv)[14] At para 58.

I have taken the valuations as the parties have dictated and placed the two superannuation funds in the pool. I have made a general global assessment that there is no distinction between the parties in relation to contribution notwithstanding that the husband has made contributions subsequent to separation to his fund and to which the wife has made no direct contribution. I have not given the husband any credit for that contribution having regard to the fact that as with the wife’s business, the wife’s contribution during the relationship acted as a springboard to enable him to make those contributions from his business to which she indirectly contributed and to which no capital value has been ascribed.

THE DIVISION

However, in relation to the adjustment for factors under s 75(2), I can see a distinction between the superannuation and the other assets. I propose to make no further adjustment for s 75(2) purposes relating to the superannuation. A precise calculation of that would mean a splitting order in the sum of $43,599 and I propose to round it up to $44,000.
In respect of the non-superannuation assets, I will make a 10 per cent adjustment to the other assets in favour of the wife having regard to:
a)her greater responsibility with respect to the children;
b)the relatively modest small pool;
c)the modest small amount of child support being paid by the husband; and,
d)the fact that the husband has the remain of an interest which will vest in years to come.
That adjustment would mean that the husband should pay to the wife $137,310 and as I rounded up the superannuation, I propose to round down the sum to $137,000.
In summary therefore, I propose to separate out the superannuation and divide those sums equally and make a splitting order in favour of the wife and I otherwise propose to divide the tangible assets as to 60 per cent to the wife and 40 per cent to the husband.
It is ultimately the end result which must be just and equitable for the purposes of s 79 of the Act. I am very conscious that in a small pool particularly with add-backs included, the higher the percentage in favour of one party, the greater the gap between them. I have to be satisfied that what they ultimately receive is just and equitable and not the percentages.
I have contemplated the fact that an order such as I am proposing will to a very large degree appear artificial at first glance by virtue of the fact that the add-backs of each party have been spent and probably no longer exist. However, I have taken into account the assets with and without the add-backs and in my view, I would not make any different adjustment to the pool of assets on a percentage basis.
Accordingly I am quite satisfied that the pool is not artificial nor is the adjustment that I have referred to above anything other than just and equitable as between the parties.
I propose to order that the superannuation be divided so that each has an equal amount thereby requiring a splitting order. The other assets will be divided as to approximately 60% to the wife and 40% to the husband. I have rounded down those precise calculations and arrived at a cash payment required of the husband of $137,000.

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHARLES & CHARLES

[2007] FamCA 124

23 February 2007

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Property Law

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Procedural Fairness

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