Chester and Chester

FAMILY COURT OF AUSTRALIA

CHESTER & CHESTER

[2008] FamCA 239

FAMILY LAW - CHILDREN – considerations of equal time and significant and substantial time – s.60CC(2) (3) considerations.
FAMILY LAW – PROPERTY adjustment – global assessment of contributions – weight to be given to relevant s.75(2) matters.

Family Law Act 1975 (Cth) – ss 72, 75(2), 79; ss60CC(1), (2) and (3), 61DA, 65DAA(1)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

Townsend and Townsend (1995) FLC 92-569 at 81,655
Browne v Green (1999) FLC 92-873 at 86,364 paragraph 53

Jones v Dunkel (1959) 101 CLR 298 and the authorities that have followed it
Preece and Preece (1981) FLC 91-048 at 76,404
Elsey and Elsey (1997) FLC 92-727 at 83,799

APPLICANT:

Mrs Chester

RESPONDENT:

Mr Chester

FILE NUMBER:

SYF

4710

2004

DATE DELIVERED:

11 April 2008

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

1, 2, 3, & 13 November 2006

27 & 28 March 2007 (mention)
11 May 2007 -
Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

P. Livingstone

SOLICITOR FOR THE APPLICANT:

Robyn Sexton & Associates

COUNSEL FOR THE RESPONDENT:

B. Richards

SOLICITOR FOR THE RESPONDENT:

Young and Muggleton

Orders

parenting

That the parties have equal shared parental responsibility in relation to their children S born … February 1997 and N born … December 1998 (“the two children”) AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the two children live with the wife.
That the parties ensure that the two children are able to communicate with and spend time with the husband as follows:
During school term
(a)Each alternate weekend from Thursday after school until the commencement of school on the following Monday or should it be a public holiday at the commencement of school on the next day the first such periods to take place in accordance with the current arrangements reflected in the interim parenting order numbered 6(a)(i) made by consent on 11 May 2007.
(b)In each other week on Wednesday from after school until 8.30pm the first occasion of which shall be in accordance with the interim parenting order numbered 6(a)(ii) made by consent on 11 May 2007.
School holiday periods
(c)The first half of each school holiday period each even numbered year commencing at 9.00am on the first day and for the second half in each odd numbered year concluding at 9.00am on the Sunday immediately prior to the commencement of the new school term.
Other occasions
(d)On Father’s Day from 9.00am until 6.00pm in the event that it falls on a day during which the children would not otherwise be in the husband’s care.
(e)Each alternate Christmas Day from 6.00pm Christmas Eve until 3.00pm Christmas Day the first occasion to take place on 24^th December 2008 and each other alternate Christmas Day commencing at 3.00pm on that day until 6.00pm the following day the first occasion of which shall be on Christmas Day 2009.
(f)On the birthday of each of the children where such birthday falls on a school day for a period of three [3] hours immediately following the conclusion of school should the birthday fall on a weekend or school holiday when the children are not otherwise in the care of the husband for a period of five [5] hours notified by the wife to the husband fourteen [14] days in advance or as otherwise agreed between them.
(g)On the husband’s birthday should it fall on a school day for a period of three [3] hours from the conclusion of school or in the event of it falling on a weekend or school holiday when the children are not otherwise in his care for a period of five [5] hours notified by the wife to the husband fourteen [14] days in advance or as otherwise agreed between them.
(h)The wife shall ensure that the children are available to receive a telephone call from the husband on Sunday (except that day they are in the care of the husband) and Thursday of each week at any reasonable time provided that if the children or either of them be unavailable to receive the telephone call from the husband and he leaves a message to that effect then the wife shall ensure that such telephone call is returned as soon as possible.
(i)Such alternative/additional periods the parties may agree upon from time to time.
That order 3(a) is suspended in the event that it falls:
(i)On Mother’s Day whereupon the parties shall ensure that the children are with her from 9.00am until commencement of the next period of time that the children are due to spend with the husband.
(ii)On the wife’s birthday whereupon the parties shall ensure that they are in the care of the wife for a period of five [5] hours notified by the wife to the husband fourteen [14] days in advance or as otherwise agreed between them.
(iii)On the birthday of each of the children whereupon the parties shall ensure that they are in the care of the wife for a period of five [5] hours notified by the wife to the husband fourteen [14] days in advance ora s otherwise agreed between them.
That order 3(c) is suspended for the purpose of the parties ensuring that the two children spend each alternate Christmas with the wife from 3.00pm Christmas Day until 6.00pm Boxing Day the first occasion to take place on 24^th December 2008 and alternatively from 6.00pm Christmas Eve until 3.00pm Christmas Day.
That during all periods of time that the children spend with the husband he shall ensure that they are available to receive a telephone call from the wife each second day at any reasonable time provided that if the children or either of them be unavailable to receive the telephone call from the wife and she leaves a message to that effect then the husband shall ensure that such telephone call is returned as soon as possible.
That the wife shall forthwith authorise the Principal of all schools attended by the children to furnish the husband at his request (and expense if necessary) copies of all school reports, notices and correspondence in relation to academic and extra curricular activities of the two children, school functions and activities.
That in the event of the children or either of them becoming seriously ill or injured during any period that both or either of them is in the care of one of the parties then that party shall inform the other as soon as possible of the details of such illness or injury, the name, address and telephone number of the relevant hospital or medical practitioner.

property settlement

That on or before 5.00pm 18^th April 2008 the parties complete, sign and furnish to their respective solicitors all authorities and directions required for the purpose of payment to each of the parties of the following amounts from the net proceeds of sale of the former matrimonial home held in Trust:-
(a) To the wife $190,817.00.
(b) To the husband $87,574.00.
That the wife obtain all necessary documentation from the corporation, entity or person responsible for furnishing such documentation in relation to the option held by the parties for the reacquisition of their interest in the timeshare at the resort known as “Beach Resort” and upon the husband being furnished with such documentation he shall complete, sign and return the same to the wife for the purpose of transferring to her his interest pursuant to the option on or before the expiration of fourteen [14] days from his receipt of that documentation.
I declare that subject to orders made this day each of the parties is the sole beneficial owner of all items of property in his or her possession, power or control respectively.

child support departure

That these proceedings be stood over for Directions at 10.00am 24 April 2008.

general

That all documents produced on subpoena may be returned to the person that produced the same.
That the proceedings except for the pending child support departure application be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4710 of 2004

Mrs Chester

Applicant

And

Mr Chester

Respondent

REASONS FOR JUDGMENT

Introduction

By her further amended application filed 4^th September 2006 the applicant (who for convenience I shall refer to as “the wife”) sought parenting, property settlement and child support departure orders.
Amongst the parenting orders sought by the wife were that the two children of the marriage (“the two children”) live with her and that they spend specified periods of time with the husband including inter alia each alternate weekend during school term, half school holiday periods and certain other occasions.
By his amended response filed 22^nd August 2006 the respondent (who for convenience I shall refer to as “the husband”) sought orders that the wife’s further amended application be dismissed and that there be parenting and property settlement orders.
At the commencement of the hearing, the husband in effect sought to amend his amended response in accordance with the document entitled “orders sought” which became Exhibit 2. I granted leave unopposed for the husband to seek orders in accordance with Exhibit 2. Exhibit 2 sought an order which reflected the presumption of equal shared parental responsibility in accordance with Section 61DA and that, inter alia, the parties enable their two children to live with each of them for alternate weeks during school term. He also sought an order that the children live with each of the parties for half of each school holiday period. Parenting orders in the alternative were also sought by the husband in relation to the periods of time that the two children should live with each party.
The parties cohabited for a period of approximately nine years which commenced in about mid-1994 and continued until they separated under the same roof on 25^th September 2003.
The husband contends that the parties had a short period of reconciliation for the period 9^th December 2003 until during March 2004. That matter was not further explored in the evidence. The resolution of it is not relevant to the issues to be determined by me.
The wife and the two children ceased to reside at 37 B (“the former matrimonial home”) on 17^th April 2004. The wife and husband have lived in separate residences since that time. The two children have continued to live with the wife.
The parties married in March 1996.
The marriage was dissolved by Decree Nisi made 6^th May 2005 which became absolute on 7^th June 2005.
The two children are:
a)S, 11 years of age having been born in February 1997 (“[S]”).
b)N, 9 years of age having been born in December 1998 (“[N]”).
The wife is 36 years of age and is employed part-time.
The husband is 39 years of age. His profession is that of engineer. He is unemployed due to health reasons and receives a disability support pension.

Historical background

The following are further brief relevant historical matters.
In about 1995 the parties jointly acquired a time share interest in holiday apartments known as “Beach Resort” (“the timeshare”) managed by an Australian company.
In about 1996 the parties jointly purchased a property at D(“the [D] property”).
In about 1999 the D property was sold.
In 1999 the former matrimonial home was purchased by the parties. It was held by them as trustees for “the [Chester] Family Trust”.
On 3^rd February 1999 the parties caused the Chester Family Trust (“the Family Trust”) to be established. The parties were appointed trustees. They have been and continue to be the sole beneficiaries. The Appointor is the husband and on his death the wife.
In 1999 the former matrimonial home was destroyed by fire. Lengthy negotiations were carried out with AAMI (“the insurer”). The former matrimonial home was rebuilt over a period of about two and a half years.
In about September 2001 the parties together with the two children reoccupied the former matrimonial home.
On 22^nd November 2005 a Registrar made an order for the appointment of a separate representative for the children. Directions were made.
On 13^th November 2006 orders were made by consent requiring the parties to cause the Family Trust to be wound up as at 30^th June 2006 and also causing the Trust to declare a fifty percent profit distribution to each party in the 2006 financial year; that the parties cause their 2005 and 2006 taxation returns to be filed forthwith and exchange copies of their notices of assessment for those financial years and upon winding up of the Trust the parties as trustees were required to cause a new loan account owed by either of the parties to the Trust to be written off. In addition the parties were required to cause the settlement proceeds of the sale of the former matrimonial home to be paid as to $14,838.73 on account of the husband’s liability to pay income tax in the 2006 financial year; an amount equivalent to the wife’s liability to pay income tax in that same financial year provided that the amount not exceed $39,331.47 and in the event that the amount payable is less than the last-mentioned figure then any surplus was required to be divided between the parties equally.
In addition pursuant to those consent orders the parties were required to pay certain specified amounts to WHK Greenwoods Chartered Accountants from the proceeds of sale of the former matrimonial home. Directions were also made.
On 27^th March 2007 upon the application of the wife I granted leave to her to re-open her case. Orders were made by consent requiring the parties to cause funds then held by the Law Society of New South Wales in trust for the parties to be transferred in equal shares to the trust account of their respective solicitors. Directions were made.
On 11^th May 2007, by consent interim property and parenting orders were made. The substance of those orders was that:-
“a)There be a partial property settlement pursuant to Section 79 whereby the parties cause the wife to receive $30,000.00 payable as to half of such sum from the funds held on trust by her solicitors and the remaining half held on trust by the husband’s solicitors.
b)     The parties cause the husband to receive $5,000.00 payable as to half of such sum from the funds held in trust by the wife’s solicitors and as to the remaining half from funds held in trust by his solicitors.
c)     That by way of interim parenting orders that:
3.   That within 7 days of 22 June 2007, the wife shall return the children to the Sydney Metropolitan area and thereafter be and is hereby restrained from removing the residence of the children from any place outside the Sydney Metropolitan area without the written consent of the husband.
4.   That upon the payment referred to in order 1 above, the husband and wife shall do all acts and things to cause the children to be re-enrolled in [W] school commencing the third school term or such other school as each of the parties agree in writing.
5.   That until the children are returned to Sydney pursuant to these orders, the wife shall do all acts and things to ensure that the children are available to receive a telephone call from the husband each Sunday, Tuesday and Thursday of each week between 7pm and 7.30pm.
5A.That the husband shall spend time with the children from 6pm 11 May 2007 until 4pm 13 May 2007 with the wife to deliver and collect the children from the husband’s home.
6.   That upon the children returning to Sydney pursuant to these orders, the children shall live with the husband as follows;
a.During school term:
(i)     Each alternate weekend from Thursday after school until the commencement of school the following Monday, such time shall commence on the first such period that the wife returns to Sydney.
(ii)    In each other week, Wednesday from after school until 8.30pm.
b.Commencing the June/July 2007 school holiday period, for the second half of each school holiday period.
7.   That upon the children returning to Sydney pursuant to these orders, the wife do all acts and things to ensure that the children are available to receive a telephone call from the husband each Sunday (except that day that they are in the care of the husband), and Thursday of each week between 7pm and 7.30pm.
Notation:
Each of the parties’ note that their respective consent to the parenting orders provided for in these interim orders are without prejudice to those orders sought by them in the substantive proceedings.”

Parenting proceedings

I will proceed to make necessary findings of fact and set out my conclusion for the purpose of determining these proceedings prior to both determining the issues in the property settlement proceedings and considering the determination of the child support departure application of the wife.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)

The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Fortunately, the second primary consideration is not relevant in these proceedings.[5]
[5] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Relevant matters pursuant to section 60CC(3)

I make the following findings in relation to relevant matters pursuant to the provisions of Section 60CC(3).

views expressed by the children and relevant factors

Each of the parties gave evidence to the effect that the two children have expressed views supporting the propositions that each of the parties have advanced regarding the periods of time that the two children should live with each of them.
Independent evidence was given by the family consultant in both her family report being Exhibit 1 and orally during the course of cross-examination by counsel for each of the parties.
In Exhibit 1 the family consultant reported that S “would like to spend more time with his father, with shorter breaks between periods of being in his care, he would ideally like to spend equal time with each parent.” The family consultant noted that S also expressed a wish for the parties to reconcile. However the family consultant was of the opinion that S showed a sufficient level of maturity and insightfulness not only in relation to the effect of the proceedings on each of the parties but also being able to demonstrate an intellectual acceptance of the separation of the parties.
So far as N is concerned, the family consultant recorded in Exhibit 1 that his views were that “he would like to spend more time in his care”.
In addition the family consultant recorded in Exhibit 1 that the two children indicated that they were “settled and happy at school” and “that at least their father, but also possibly both parents, have involved them in aspects of the parental conflict and court proceedings.”
In summary the family consultant stated in Exhibit 1 that the two children “expressed a need to spend more time in their father’s care. They both viewed this as being good for them.”
During the course of her oral evidence the family consultant restated that the two children required to spend more time with the husband and in S’s case “for shorter periods”.
The evidence of the family consultant was consistent throughout and not the subject of any substantial challenge in relation to this particular matter. It was not only consistent but given in an appropriate detailed way. In those circumstances I accept her evidence. As a consequence I find that the two children have expressed views that they spend more time with the husband and that so far as S is concerned there be shorter periods.

the nature of the relationship of the two children with each of the parties and other significant persons

There is no issue that the two children each have a loving relationship with each of the parties.
In Exhibit 1 the family consultant reported that each of the two children has a positive relationship with each of the parties. Exhibit 1 concludes that the relationship between the two children and each of the parties had significantly changed since the parties’ separation. So far as the wife is concerned the family consultant formed the view that each of the children had a need for the wife “to be more emotionally available” to each of them and to engage in more activities with them.
So far as the husband is concerned since separation he has been more available to the two children to spend time with them compared to the situation prior to the separation of the parties. However as the family consultant made clear in Exhibit 1 the views expressed in this paragraph must be seen against a particular background. In that regard the family consultant in her evaluation contained in Exhibit 1 noted that the wife prior to separation was ‘the more involved and available parent”. The husband for his part was working long hours in different jobs. He has since become more available and therefore more involved with the two children subsequent to separation due to the reduction in his working hours as times not being engaged in any form of employment due to his adverse health issues.
Consequently the family consultant stated “it is likely that with [the wife] re-entering the workforce, after separation, she has experienced some difficulties in adjusting to her different roles. It is not unusual in these circumstances for children to experience a previously emotional and physically available parent as being unavailable at a time when the children need the parent to be more available to help them adjust to the changed circumstances.”
The family consultant proceeded to provide further insightful views so far as the husband is concerned by stating “it is also not unusual that, after separation, a parent who has been somewhat uninvolved with the children, and also unavailable to share the parenting role due to work commitments, makes significant efforts to become more available to and involved with the children.”
As with many other relevant considerations pursuant to Section 60CC(3) this particular matter was the subject of little, if any, challenge during cross-examination of the parties and the family consultant.
Accordingly I find that each of the two children has a loving and positive relationship with each of the parties marked by needs that the two children have, so far as the wife is concerned, that has required adjustment subsequent to the separation of the parties due to her being less available to them compared to the previous situation as a result of her re-entering employment.
There was no issue that the children had a fond and positive relationship with the paternal grandmother.
The two children were well acquainted with the previous partners of the wife and the husband Mr B and Ms F respectively. I accept the evidence of each of the parties that those relationships have come to an end although the wife does continue to see Mr B from time to time including visits to her home.

the willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the two children and the other party

Part of the conflict between the parties had been due to poor communication between them, allegations by the husband that the mother had thwarted his attempts to make arrangements for the two children to spend more time with him since the parties’ separation. Again there was little exploration, if any, of this particular issue during the course of cross-examination.
Fortunately from the point of view of the two children, a regular routine had been established for the two children to spend each alternate weekends during school term with the husband from Friday after school until Sunday evening. Regular telephone communication has been facilitated.
Notwithstanding the important issue of the periods of time that the two children should live with each of the parties having regard to their best interests, the evidence taken overall does not suggest anything other than that the two parties each have the willingness and ability to facilitate the ongoing positive relationship that each of the two children enjoys with each of the parties. No submission to the contrary was made.

the likely effect of any changes in the circumstances of the two children including separation from each of the parties

The two children were aged 7 and 6 years respectively at the time when they and the wife ceased to live in the former matrimonial home. Approximately four years have passed and as a result the two children have spent a large part of their lives in the primary care of the wife.
The evidence of the family consultant in Exhibit 1, which has remained consistent throughout her evidence, is that each child has been “experiencing the time between periods in their father’s care as being too long.”
Due to the history of poor communication and conflict between the parties, although there were signs of improvement, as well as the need to ensure that the husband is able to “realistically balance any health issues with parenting requirements”, the family consultant expressed the view that implicitly it would not be in the best interests of the two children for them to spend equal periods of time with the parties such as week about or periods approximating that type of routine.
On the evidence before me from the family consultant, I accept that a likely effect of a change in the circumstances that currently exist of the children primarily living in the care of the wife, with alternate weekends with the husband, is not as conducive to their wellbeing as an extended period of time to be spent by them with him in school term. In that regard I accept the family consultant’s evaluation in Exhibit 1 that a routine which enables the two children to spend periods of time with each parent each week is implicitly in their best interests. Indeed the evidence of the wife supports the approach of the family consultant to which I have referred, albeit that her proposal is that a period of time spent with the father during the week in which a weekend period does not occur should not include overnight.

the practical difficulty and expense of the two children spending time and communicating with each of the parties

This was not an issue in the proceedings.

the capacity of each of the parties and any other significant person to provide for the phsycial, emotional and intellectual needs of the two children

No issue was raised in the proceedings suggesting that each of the parties’ accommodation for the two children was anything other than appropriate.
There was evidence as to whether or not the wife’s former partner had physically and inappropriately disciplined S. The evidence in relation to this matter was scant and does not satisfy me on the balance of probabilities that he had so acted.
I further find that the husband overall has the capacity to meet the physical needs of the two children so far as provision of appropriate child support is concerned not so much from the child support that he is paying due to his lack of employment, but that he is able to supplement financial support for them relying upon the generosity of the paternal grandmother. This should not be seen as a criticism of the husband as his restricted capacity to provide greater financial support for the two children from his own income earning endeavours has been adversely affected due to his serious health issues.
No issue arises in relation to the capacity of each of the parties to provide for the intellectual needs of the two children.
So far as the emotional needs of the two children are concerned this matter was the subject of evidence particularly that of the family consultant in Exhibit 1.
In relation to the wife the family consultant expressed the views to which I have referred in earlier paragraphs especially arising out of Exhibit 1. In doing so the family consultant context for the desirability of the emotional needs of the two children be met by the wife included greater available time for them having regard to the extent of her care post-separation inhibited by her

re-employment. It is in that practical context that this matter needs to be considered in circumstances where two small children had previously been used to the wife being more available to them emotionally and so far as time was concerned, she was not in employment prior to separation. The wife found herself in a position where she was receiving minimal child support from the husband and indeed for some months no child support at all. It is not surprising therefore that she was less available to the children due to the need to earn income for their support and that they became more emotionally needy.
I accept her evidence and the expert evidence of the family consultant subject to the legal requirement that a whole range of matters need to be considered. Consequently, I find that the wife does have the capacity to provide for the emotional needs of the two children, albeit restricted at times due to the less than desirable quality of communication between the parties.
So far as the husband is concerned I find that he has the capacity to meet the emotional needs of the two children, although tempered due to the same reason as the wife due to the poor communication that has existed between them.
It is not disputed that the paternal grandmother has the capacity to provide some financial assistance to the husband on a voluntary basis and at her discretion for the purpose of him providing increased financial support for the two children in circumstances where such support is desirable when the two children spend periods of time with him, as opposed to generally. There was also no issue that the paternal grandmother has the capacity to provide for the emotional needs of the two children during such limited periods that they are in her company.

the maturity, sex, lifestyle and background of the two children and of the two parents

It is not a matter of controversy that the two children have the maturity commensurate with their ages. No other matter is relevant.

the parental attitude of the two parties

I find that each of the parties has displayed an appropriate parental attitude to the two children subject to the indirect effect upon the two children of the parties’ limited and unconstructive communication between them.
So far as the matter of child support which has been paid by the husband subsequent to separation, he did display an inappropriate parental attitude so far as his responsibilities were concerned in that for several months he did not pay any child support. That cast upon the wife the full responsibility to meet the daily living expenses for the two children.
The husband has recognised that child support amounting to about $45.00 per week is inadequate. That has been the product of his reduced financial circumstances due to his unsound health.

family violence and family violence orders

Fortunately for the two children and the parties this is not a relevant issue.

the preference to make an order least likely to lead to the institution of further parenting proceedings

An issue arises as to whether the range of periods of time that the two children should spend with each of the parties, whether it be equal time or lesser periods with the husband. It was not part of the husband’s case that one of the alternatives that falls for consideration is that the two children primarily live with him.
The evidence of the family consultant, which I have accepted, is that at least for the time being the needs of the two children are such that having regard to all relevant factors, they should not spend equal time with the two parties. It follows that an order reflecting equal time may increase the possibility of further parenting proceedings being instituted due to the problems that the two children or either of them may have in adjusting to an uninterrupted period of one week being spent with one of the parties or the other.
However Section 60CA of the Act makes clear that I may only make a parenting order if it is in the best interests of the two children to do so. That will involve a large number of other considerations to which I have made earlier reference.

other relevant facts or circumstances

These matters do not arise and were not the subject of evidence.

CONCLUSION

Each of the parties has embraced the assumption of equal shared parental responsibility (as opposed to equal time) set forth in Section 61DA. Indeed an order was sought by consent, in that regard.
Section 65DAA(1) requires me to consider whether an order for equal time is in the best interests of the two children. I have determined that such an order will not be made. However I have concluded that an order will be made that reflects substantial and significant time required to be considered in accordance with Section 65DAA(2) and (3). Any parenting order must meet the best interests of the two children as required by Section 60CA. That is the paramount consideration which is the ultimate focus as opposed to the other considerations referred to in this paragraph. My reasons are as follows.
For the whole of the period since the parties physically separated in April 2004 the wife has been the primary carer of the two children. The wife has provided not only for their daily emotional care but also for much of that period the greater practical responsibility for their financial support given that for some months no child support was paid at all by the husband and for a considerable period, including at present, child support assessment in reality provides inadequate financial support by the husband.
This is complicated further by the historical lack of positive and constructive communication between the parties and the husband’s serious health issues which will be the subject of detailed subsequent findings. The nature of the husband’s health issues and the unfortunate manner in which they have impacted upon the husband daily requiring specialist medical treatment, throws into considerable doubt his ability to care for the two children for an uninterrupted period of alternate weeks. I appreciate that his difficulties will be ameliorated to some extent due to the assistance that the paternal grandmother is prepared to provide. Other matters that I have taken into account are the needs of the two children to spend more time in the husband’s care, the subject of Exhibit 1 and the oral evidence of the family consultant. I have accepted her evidence which includes, amongst other things, that the children would like to experience shorter periods between each of the periods spent with the husband, and at the same time also have the benefit of at least the “emotional availability of their mother, as well as her ability to be involved with them in their day to day activities”.[6]
[6] Exhibit 1 paragraph 24.
There are also serious doubts regarding the husband’s ability to provide the necessary level of financial support for the two children should they live with him on a week about basis having regard to his straightened financial circumstances, even allowing for some financial assistance from the paternal grandmother and perhaps increased family benefits.
Apart from the significant weight that I give to the above-mentioned matters I also give considerable weight to the evaluation provided in Exhibit 1 by the family consultant. The routine for the children which reflects part of the proposals of each of the parties by enabling the two children to spend time with each of them each week (implicitly in school terms) will likely be in the best interests of the children. The family consultant was of the view that there were signs that constructive communication between the parties may improve as a result of the proposed orders which will not provide equal time but a period of time during each week that the two children spend with the husband.

As the family consultant observed the orders proposed by me will enable the parties to develop “more appropriate communication styles, increase the level of trust between them particularly for [the wife] or [the husband], and also ensure that [the husband] is able to realistically balance any health issues with parenting requirements.”[7]
[7] Exhibit 1.
I have also given weight to the interim orders made by consent on 11^th May 2007 which provided, so far as school term was concerned, for the two children to spend each alternate weekend from Thursday after school until the commencement of school the following Monday and in the other week Wednesday from after school until 8.30pm as well as for school holiday periods. Considerable time has passed since those consent orders were made. No application was made on behalf of either party to reopen her or his case to adduce further evidence which may have demonstrated that those parenting arrangements were not working satisfactorily. In those circumstances I infer that the interim parenting orders made 11^th May 2007 have been implemented in a satisfactory manner so far as the two children are concerned, as well as the parties.
Accordingly I will make orders that provide for significant time for the two children to live with the father during school terms, which will encompass days other than weekends; half school holidays and other specific occasions such as Christmas Day, and the birthdays of the children and the parties.
Orders will also be made to enable the husband to receive copies of all school reports and associated material as well as to ensure that the parties are kept informed at all times in the unfortunate effect that both or either of the children suffers from a serious illness or injury.
In addition I will make an order which gives the parties flexibility to make their own arrangements for such alternative or additional periods of time that they agree that the two children should spend with the husband. It is inevitable given the ages of the two children that their reasonable needs and activities change from time to time. The parties should be encouraged to make their own sensible and sensitive arrangements to accommodate those matters.

PROPERTY SETTLEMENT PROCEEDINGS

Relevant legal principles

It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable”, represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s75(2).
Fourthly, consideration of orders, if any, that should be made that are just and equitable.[8]
[8] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s 75(2) of the Act. In addition, I will make findings in respect of the issue of “waste” raised by the applicant.

Property of the parties

The following is a reproduction of Exhibit X being the agreed schedule of “assets, liabilities and superannuation”. A number of items are disputed and my findings in relation to those items are subsequently set forth.
ASSETS, LIABILITIES & SUPERANNUATION

Assets	Wife Asserts	Husband Asserts
Timeshare – joint names	Nil	Nil	Agreed	*Note 1*
The Family Trust, includes: Nett proceeds of sale held in trust	$278,390.49	$278,390.49	Agreed
Bank accounts, other assets of the trust	Not known
Accounting fees to WHK Greenwoods	-$10,824.50	-$10,824.50	Agreed	*Note 10*
Wind up costs associated with the trust and other accounting fees	Not known	*Note 10*
Add back proceeds relating to jeep sold by husband	$35,900.00	Disputed	*Note 2*
Add back proceeds (or value) relating to motor vehicle sold by wife	$1,000.00	$1,000.00	Agreed
Husband’s rental bond and rent paid in advance (4 weeks bond, 4 weeks rent in advance for husband’s portion of $285 per week)	$2,280.00
C Business (wife’s business)	Nil	Nil	Agreed
Funds released to husband pursuant to Order dated 18 July 2006 (excluding those amounts paid in Legal fees included below)	$30,000.00	Disputed	*Note 3*
Funds released to wife pursuant to Order dated 18 July 2006 (excluding amount paid in respect of legal costs, listed below)	$10,000.00	$10,000.00	Agreed
Husband’s earnings between Feb 2005 and Sep 2005, transferred to unknown account	$105,516.91	Nil	Disputed
Funds earned 2 Sep 05 to 21 Dec 05 in name of G Business Pty Ltd	$50,761.77	Nil	Disputed
Earnings for work carried out but unbilled by husband since 1 January 2006	Not Known	Nil	Disputed
Lexus motor vehicle – husband	$92,930.00	Disputed	*Note 4*
IAG shares – 284 – wife	$1,599.00	$1,599.00	Agreed
Jewellery – wife	$5,000.00	$5,000.00	Agreed
Bank accounts (3) – Wife:	$77.00	$77.00	Agreed
Bank accounts – Husband: Commonwealth	$980.00	$980.00	Agreed
Furniture and home contents – wife	$5,000.00	$5,000.00	Agreed
Furniture and home contents – husband	$5,000.00	$5,000.00	Agreed
Legal fees paid – Husband: Watts McCray	$19,240.00	$19,240.00	Agreed	*Note 11*
Rowland Townend	$5,342.65	$5,342.65	Agreed
Warren McKeon Dickson	$9,000.00	$9,000.00	Agreed
Fees paid to Karen Thompson and Young & Muggleton	$15,357.00	$15,357.00	Agreed
Funds held in trust by Young & Muggleton	$18,000.00	$18,000.00	Agreed	*Note 5*
Legal fees paid – Wife: David Marinic (wife’s first solicitor)	$825.00	$825.00	Agreed
Robyn Sexton & Associates (includes $40,000 from funds released on 18 July 2006)	$42,345.00	$42,345.00	Agreed

Total Assets $723,720.32 $406,331.64
Superannuation

Wife
State Super	$10,571.00	$10,571.00	Agreed
L Superannuation	$672.00	$672.00	Agreed
Husband
State Super	$24,975.00	$24,975.00	Agreed
ING	$22,460.00	$22,460.00	Agreed

Total Superannuation $58,678.00 $58,678.00
Liabilities

Tax liability arising as a result of Capital Gain and sale of former matrimonial home – wife	-$39,331.47	-$39.331.47	Agreed
Tax liability arising as a result of Capital Gain and sale of former matrimonial home – husband	-$14,838.73	-$14,838.73	Agreed
Loan from Ms F – husband	$ -	-$25,400.00	Disputed
Loan from Mr S – husband	$ -	$ -
Loan from husband’s mother – husband	$ -	-$22,154.34	Disputed
R Company – husband	$ -	-$3,723.00	Disputed	*Note 8*
Additional amount owed to wife’s former employer – wife	-$2,290.40	$ -	*Note 9*
School fees	-$14,737.00	-$3,300.00	Disputed	*Note 6*
Loan from mother – wife	-$28,815.00	$ -	Disputed	*Note 9*
R bodyworks – wife	-$1,399.00	$ -	Disputed
Coles Myer Card – wife	-$4,107.00	$ -	Disputed
Commonwealth Bank Mastercard – wife	-$21,252.00	$ -	Disputed
Commonwealth Mastercard – husband	$ -	-$5,925.00	Disputed
Commonwealth Mastercard Gold – husband	$ -	-$7,900.00	Disputed
Commonwealth Bank Mastercard Platinum – husband	$ -	-$25,465.00	Disputed	*Note 5*
CBFC Limited Loan for Lexus	$ -	Disputed	*Note 4*
Costs Order Against Husband 29.3.06	$ -	-$2,638.00	Agreed
Costs Order Against Husband 14.9.06	$ -	-$360.00	Agreed

Total liabilities -$126,770.60 -$100,235.54
Net property including
superannuation $655,627.72 $364,774.10
Note 1 – Timeshare had an agreed value of $12,000, but has been redeemed. Parties hold option to purchase back. Wife seeks orders which give each party the alternative to exercise the option, and pay the other party for their interest.
Note 2 – Subject to cross-examination. Husband asserts that he received $10,589.64 (Annexure J to his affidavit).
Note 3 – Husband asserts $8340 was paid to Mr S an amount to his parents and Ms F. The amount of $980 in his bank account remains of that sum with any balance having been expended on living expenses.
Note 4 – Husband disputes both the value and inclusion of the Lexus. In the event that this is included irrespective of value, there ought also be included the corresponding liability for the purchase as at 18 July 2006. This liability amounted to $101,315.78. Wife asserts no evidence that the husband is responsible for any liability associated with the Lexus.
Note 5 – The amount of $18,000 was drawn on this credit card to pay the monies into the Young & Muggleton Trust.
Note 6 – Husband asserts that any amount above $3,300 should be treated as a liability of wife alone but concedes the current amount owing.
Note 8 – The husband asserts this amount was an overpayment received in January 2004 and is repayable. Wife accepts funds were owed at one time, but asserts no evidence that the liability is presently owed.
Note 9 – This amount relates to monies repaid to wife’s employer as a result of the wife’s unlawful conduct.
Note 10 – Parties have agreed on a set of orders which addresses this issue.
Note 11 – In each case the quantum of the amount is agreed but the inclusion in the balance sheet is disputed.

Exhibit X – disputed items

Timeshare – Joint names – Nil

As Note 1 makes clear the dispute between the parties only relates to the order that may be made for exercising the option held by the parties.
Consequently the question of value of and interest held in the timeshare or the manner in which it should be treated for the purpose of calculation of the net property of the parties does not arise for determination.

Accounting fees to WHK Greenwoods - $10,824.50

In view of the content of Note 10 which implicitly refers to the orders made by consent on 13 November 2006 this item will be omitted.

Wind-up costs associated with the Trust and other accounting fees – “Not Known”

My assessment in relation to this item is the same set as out in the last preceding paragraph. Consequently this item will also be omitted.

Add back proceeds relating to Jeep sold by husband

It is asserted on behalf of the wife that the amount of $35,900.00 should be included in the calculation of the net property of the parties representing the sale proceeds of a Jeep which had been owned by the Family Trust. The husband contends that there should not be an add back of any amount.
Note 2 refers to the evidence of the husband that he received $10,589.64 net following the insurance redemption for the Jeep after it had been written off due to a motor vehicle accident.
There was no issue on the evidence that the Jeep had been purchased in the name of the Family Trust for $76,127.00 involving repayments at the rate of $1,250.00 per month. There was also no evidence to the contrary of the husband’s evidence that in February 2005 the motor vehicle accident to which I have referred took place.
Annexure “J” to the husband’s affidavit is a copy of a letter dated 14^th August 2006 from the claims consultant NRMA Insurance which provides the calculation of the net amount payable to the husband of $10,589.64 after discharge of the existing debt to the finance company as well as other minor deductions.
The husband’s affidavit evidence is the amount of $10,589.64 was received by him and expended on “debts and expenses”.
There was little cross-examination in relation to these matters. The husband confirmed that the Jeep had been owned by the Family Trust, it was subject to hire purchase and he received the net proceeds of the insurance redemption.
The affidavit evidence of the wife was that she was informed in April 2005 by the eldest child that the Jeep had been written off. No further evidence was given.
I have concluded that there is no basis for attributing an add back of either the gross insurance cover of $35,900.00 or indeed the net proceeds of $10,589.64. The husband’s evidence in relation to those matters was clear and corroborated. He was not challenged in relation to the expenditure by him of the last-mentioned amount to meet expenses and debts. There is no evidence to suggest that the expenditure of that amount was anything other than reasonable in his particular circumstances.[9]

The funds released to husband pursuant to Order dated 18 July 2006 (excluding amounts paid in legal fees otherwise included in Exhibit X)

[9] Townsend and Townsend (1995) FLC 92-569 at 81,655: Browne v Green (1999) FLC 92-873 at 86,364 paragraph 53.

The husband received $30,000.00 pursuant to the above order as a partial property settlement. The wife asserts that is should be added back in full for the purpose of calculation of the parties’ net property. The husband contends that $989.00 remains as a result of payment of outstanding debts and expenses. Note 3 relates to this issue.
During the course of his oral evidence-in-chief the husband stated that he had repaid loans to Mr S of $8,260.00; his mother $2,000.00 and his former partner Ms F of $14,600.00. The total of those amounts is $24,860.00. His further evidence was that the balance remaining was expended on rent and living expenses. The evidence that he gave during the course of cross-examination did not depart from that evidence and provided further details in relation to various loans.
The witness Mr S corroborated the husband’s evidence in relation to the loans that had been made to the husband, his oral evidence confirmed that payment had been made. Evidence was also given by the husband’s mother. Her affidavit particularised a number of loans that she had made to the husband and referred to repayments of two of those loans which totalled $3,899.00. Cross-examination of the husband’s mother did not result in any departure from her evidence.
I accept the evidence of the husband and his corroborating witnesses which was given in a plausible and consistent manner.
Accordingly I find that the husband has repaid loans as contended by him totalling $24,860.00. That left a balance of $5,140.00. I am not satisfied that those funds or a large proportion of them were expended on rent and living expenses given that no evidence was provided by the husband which showed even approximate amounts spent on each of those two categories of expenditure.
Consequently the amount that will be added back for the calculation of the net property of the parties is $5,140.00 as notional property of the husband.

Husband’s earnings between February 2005 and September 2005 transferred to unknown account

Funds earned 2 September 2005 to 21 December 2005 in the name of G Business Pty Ltd

The wife contends that the relevant amounts are $105,516.91 and $50,761.77. The husband submits that neither that amount nor any proportion of it should be added back as his notional property.
There was no issue in the proceedings that G Business Pty Ltd was the alter ego of the husband. Nor was there any issue that the amount of $50,761.77 was income of that company. It is not clear whether that amount was gross or net after tax. No submission was made that the amount referred to was “property” within the meaning of Section 4 of the Act. Indeed it is apparent from Exhibit X that it does not contain a Note which briefly refers to the substance of the dispute in contrast to the Notes provided in relation to other disputed items.
Having regard to the lack of controversy that the subject amounts represented income whether gross or net after tax, the amounts not treated in a manner which could enable the amounts to be regarded as an asset of either the company or the husband, I will not include the amounts as notional property.

Earnings for work carried out but unbilled by husband since 1 January 2006

This item was included on a basis which is not clear especially as the relevant amount is not described. There is also an absence of a Note to Exhibit X which may have shed further light upon the nature of the dispute for the purpose of determining the property of the parties.
It is clear from the description of this item that it can only be income, regardless of the amount and whether it is gross or net after tax.
Consequently I will omit the description of this item from the schedule of the parties’ property.

Lexus motor vehicle - husband

The wife contends that this vehicle is the property of the husband. The amount shown is the purchase price so far as I am aware.
The husband contends that he does not have nor did he ever have any legal interest in the ownership of the vehicle which at all material times has been solely owned by his former partner Ms F.
The affidavit evidence of the husband is that his partner purchased the vehicle in August 2005 and that at that time she paid the deposit, signed the contract and took out a loan to pay the balance of the purchase price.
The husband’s affidavit evidence also is to the effect that the vehicle was “wrongly” registered in both his partner’s name and his name. Annexure “K” being a certificate dated 16^th March 2006 on the letterhead of “Lexus” is corroboration of the history provided by the husband.
During the course of cross-examination the husband stated that the purchase price was $90,000.00, the $1,000.00 deposit had been paid by his former partner and the balance as a result of a higher purchase loan with the Commonwealth Bank of Australia. He stated that he had driven the vehicle. His further evidence was that he and his former partner were engaged to be married and had joint accounts.
The husband’s further oral evidence was that he had transferred the registration of the vehicle to his former partner after reading documents that had been produced on subpoena by the Roads Transport Authority.
Exhibit 8 is a letter provided by the finance company CBFC which shows that as at 18^th July 2006 the balance outstanding was $101,315.78.
No evidence was given by the husband’s former partner. Notwithstanding that, I accept the evidence of the husband corroborated in significant areas by Annexure “K” to his affidavit and Exhibit 8.
Accordingly the Lexus motor vehicle will not be included in the calculation of the net property of the parties.

Legal fees paid - husband

It is disputed on behalf of the husband that the amounts shown in Exhibit X under this heading should be included in the calculation of the net proceeds of the parties.
It is consistent with a number of Full Court judgments over many years that generally speaking legal fees paid from the financial resources of both or either of the parties should be included in the calculation of the net property of the parties. It may be necessary in many cases such as these proceedings for outstanding liabilities to be deducted representing amounts borrowed for the purpose of payment of legal fees as to do one without the other is clearly wrong.
Consequently the amounts shown in Exhibit X under the sub-heading “Legal fees paid” will be included.

Liabilities

Loan from Ms F - husband

The husband contends that he is indebted to his former partner in the sum of $25,400.00. The loan is disputed on behalf of the wife and alternatively it was implicit in the matter in which the case was conducted that the quantum is in issue even should there be a finding of an outstanding loan.
The affidavit evidence of the husband is that he estimated owing his former partner $40,000.00. That affidavit was sworn on 16^th August 2006.
Approximately one month later namely 15^th September 2006 the husband swore his Financial Statement in which he claimed that the amount owing was $14,127.00. It is not clear from his affidavit or his financial statement as to the manner of calculation of the reduced liability although it is likely that it represented in fact the balance that the husband claimed was owing after the husband had paid her $14,600.00 to which earlier reference has been made. That would result in a previous outstanding liability of $428,727.00, as opposed to the amount of $40,000.00 claimed by the husband in his affidavit.

During the course of cross-examination the husband stated that at about the time or inferentially shortly after he ceased full-time work with his former employer in August 2005 he already owed his former partner “many thousands of dollars”. He further stated that she had forgiven a higher amount of indebtedness approximately one to two weeks prior to his affidavit, the amount being forgiven being about $50,000.00 - $60,000.00.
The husband further contended that he owed his former partner about $40,000.00 less the payment of $14,600.00 to which I have made earlier reference. That payment would of course result in the amount of $25,400.00 shown in Exhibit X.
However the husband did not give any evidence which demonstrated his calculation of the indebtedness of about 40,000.00 prior to the payment of $14,600.00 to which I have referred.
The amount of the alleged outstanding indebtedness of $25,400.00 is a significant amount having regard to other alleged outstanding liabilities as set forth in Exhibit X.
No evidence was led from his former partner nor was any evidence given (as opposed to submissions) which explained why she was not called as a witness in the husband’s case. The fact that their relationship had ended did not explain the situation especially when she is allegedly owed a comparatively significant amount of money by the husband.
The written submissions lodged on behalf of the husband to provide support for the husband’s case in relation to the calculation of the alleged loans from the husband’s partner to him referred to Exhibits 12, 20 and 22. Exhibit 12 is a voluminous Exhibit containing, inter alia, bank statements in relation to various accounts from December 2003 to 20^th October 2006. I was not referred to any reconciliation or schedule contained in Exhibit 12 which gives a history of the loans by the husband’s partner to him, let alone the basis of the calculation of the outstanding amount of $40,000.00 owing from which a payment of $14,600.00 was made to which I have earlier referred. Indeed the written submissions do not provide any guidance to me in relation to this matter.
Exhibit 20 contains copies of bank statements produced by The Proper Officer Bendigo Bank Group for the period 1^st October 2003 to 7^th July 2006. I make the same observations in relation to those bank statements as set out in the last preceding paragraph.
Exhibit 22 is merely a copy of the Notice to Produce to the wife.
Consequently Exhibits 12, 20 and 22 were of no assistance. It is of no use to a trial judge to simply tender voluminous material and not provide any submissions which relates to any part of it in support of the contentions that are made.
I am not satisfied on the balance of probabilities that the husband owes his former partner $25,400.00. Given the history of loans by her to the husband I do find that loans have been made by her to him from time to time and that he possibly owed her money at the time of the hearing. The more crucial factual issue is the amount that is owed. It is not persuasive to simply deduct $14,600.00 from $40,000.00 without providing evidence that leads to a satisfactory explanation of how the amount of about $40,000.00 was calculated. The husband failed to provide that crucial evidence. In addition given that such an explanation was obviously required for the purpose of a fact in issue, not only was the husband’s evidence in that regard unsatisfactory, but he failed to call his former partner as a witness when it was reasonable to expect that she as a party to the transactions should be called. No evidence was given to explain her absence as a witness.[10]
[10] Jones v Dunkel (1959) 101 CLR 298 and the authorities that have followed it

Loan from husband’s mother

The husband contends that he is indebted to his mother in the sum of $22,154.34. Exhibit X does not contain a Note explaining the dispute. Unfortunately there are a number of other disputed items, particularly liabilities, which do not have such a note although that was required.
In his Financial Statement sworn 15^th September 2006 the husband claimed that he had a liability to his mother for the amount of $22,154.34.
During his oral evidence the husband stated that he continued to owe money to his mother who held the cheque butts and receipts.
The husband’s mother swore an affidavit on the 18^th August 2006. In that affidavit she particularised loans that she had made to the husband after allowing for two particular amounts that have been repaid, the outstanding amount was $30,814.34.
I infer that since the affidavit was sworn the husband made a payment to his mother of $2,000.00 to which I have earlier referred. That of course still leaves an outstanding balance higher than the amount claimed as a liability in Exhibit X.
The husband’s mother was not challenged in relation to the above-mentioned evidence. I accept her evidence which was given in a detailed and plausible way in her affidavit. I accept the husband’s contention that he owes his mother $22,154.34, albeit it that it is less than the effect of her affidavit evidence. It was not submitted that he was indebted to her for a larger amount.

R Company – husband

As is made clear in Note 8 the historical overpayment is not in issue nor the date when it was received. That was prior to the separation of the parties.
It is contended that there is a lack of evidence that the liability is owed. Yet it was claimed as a liability in the husband’s Financial Statement sworn 15^th September 2006, albeit shown as to 50 percent. That evidence was not challenged. I accept it.
Accordingly I find that the husband has the liability to which he referred.

Additional amount owed to the wife’s former employer- wife

As Note 9 makes clear this amount relates to an outstanding indebtedness to her former employer. There is no issue that it arose as a result of her unlawful activities during that former employment.
It is contended on behalf of the husband that having regard to the undisputed facts referred to in the last paragraph the liability should not be included in the net property of the parties as to do so would mean that he indirectly bears a share of that liability. No contrary submission was made.
Having regard to the unlawful activities of the wife to which I have referred, it would be unjust to include it as a liability for the purpose of calculation of the parties’ net property.

School fees

The outstanding fees for the school attended by the children was $14,737.00.
The husband contends that the amount that should be reflected in the liabilities is $3,300.00 being the amount owing prior to the parties’ separation and in circumstances whereby he gave written notice to the school that he would no longer be responsible for further school fees due to worsening of his financial circumstances.
While it is understandable that the wife was seeking to ensure that the lives of the children were disrupted as little as possible having regard to the separation of the parties, nonetheless on the face of it, it was reasonable for the husband to take the position that he did on a purely financial basis. I also note that an interim order was neither made nor perhaps sought to compel the husband to continue to join in with the wife in satisfying the ongoing liability for private school fees.
In those circumstances I find that the joint liability of the parties is $3,300.00. A separate issue is the continued contributions that the wife has made in relation to the children’s education and which will subsequently fall for consideration

Loan from mother - wife

The amount that arises for consideration is $28,815.00. Note 9 identifies the amount as implicitly having been borrowed to enable the wife to make pre-payment to her former employer “as a result of the wife’s unlawful conduct”. Helpful written submissions were made in that regard on behalf of the husband. No contrary submissions were made on behalf of the wife.
This liability was also brought about by the wife’s unlawful activities which have not be included by me as a liability for the purpose of calculation of the net property of the parties given that to do so would mean that the husband indirectly shares part of that liability.

R Bodyworks - wife

The amount of $1,399.00 is claimed by the wife as a liability in her financial statement sworn 1^st September 2006.
That liability was not the subject of cross-examination. I do not accept the submission that simply because the money is owing to a distant relative by marriage therefore corroboration was required. I accept the unchallenged evidence of the wife and make findings accordingly.
Consequently the liability of $1,399.00 will be included in the calculation of the net property of the parties.

Coles Myer Card – wife $4,107.00

CPA Mastercard – wife $21,252.00

The evidence of these two liabilities is contained in the wife’s Financial Statement sworn 1^st September 2006. There was no challenge to the wife’s evidence. I see no reason not to accept it.
Accordingly I find that the wife has the two separate indebtednesses to which I have referred and the relevant amounts will be included in the calculation of the net property of the parties.

Commonwealth Mastercard – husband $5,925.00

Commonwealth Mastercard Gold – husband $7,900.00

I was not assisted by the absence of notes to these particular disputed items.
I accept the written submission on behalf of the husband that he was not challenged in relation to these liabilities. Indeed no contrary written submission was made.
Accordingly I find that the husband has these particular liabilities which will be included in the calculation of the parties; net property.

CBFC Limited loan for Lexus

In view of my earlier finding that the Lexus motor vehicle will not be included in the husband’s property it follows that the outstanding loan will also not be included.

Revised property of the parties

I find that the net property of the parties is as follows taking into account my findings in relation to the disputed items that arose out of Exhibit X:-
ASSETS, LIABILITIES & SUPERANNUATION
Assets

Timeshare – joint names	Nil
The Family Trust, includes: Nett proceeds of sale held in trust	$278,390.49
Bank accounts, other assets of the trust	Not known
Add back proceeds (or value) relating to motor vehicle sold by wife	$1,000.00
Husband’s rental bond and rent paid in advance (4 weeks bond, 4 weeks rent in advance for husband’s portion of $285 per week)	$2,280.00
C Business (wife’s business)	Nil
Funds released to husband pursuant to Order dated 18 July 2006 (excluding those amounts paid in Legal fees included below)	$5,140.00
Funds released to wife pursuant to Order dated 18 July 2006 (excluding amount paid in respect of legal costs, listed below)	$10,000.00
Husband’s earnings between Feb 2005 and Sep 2005, transferred to unknown account	Nil
IAG shares – 284 – wife	$1,599.00
Jewellery – wife	$5,000.00
Bank accounts (3) – Wife:	$77.00
Bank accounts – Husband: Commonwealth	$980.00
Furniture and home contents – wife	$5,000.00
Furniture and home contents – husband	$5,000.00
Legal fees paid – Husband: Watts McCray	$19,240.00
Rowland Townend	$5,342.65
Warren McKeon Dickson	$9,000.00
Fees paid to Karen Thompson and Young & Muggleton	$15,357.00
Funds held in trust by Young & Muggleton	$18,000.00
Legal fees paid – Wife: David Marinic (wife’s first solicitor)	$825.00
Robyn Sexton & Associates (includes $40,000 from funds released on 18 July 2006)	$42,345.00

Total Assets $424,576.14
Superannuation

Wife
State Super	$10,571.00
L Superannuation	$672.00
Husband
State Super	$24,975.00
ING	$22,460.00

Total Superannuation $58,678.00
Liabilities

Tax liability arising as a result of Capital Gain and sale of former matrimonial home – wife	-$39,331.47
Tax liability arising as a result of Capital Gain and sale of former matrimonial home – husband	-$14,838.73
Loan from husband’s mother – husband	-$22,154.34
R Company – husband	-$3,723.00
School fees	-$3,300.00
R bodyworks – wife	-$1,399.00
Coles Myer Card – wife	-$4,107.00
Commonwealth Bank Mastercard – wife	-$21,252.00
Commonwealth Mastercard – husband	-$5,925.00
Commonwealth Mastercard Gold – husband	-$7,900.00
Commonwealth Bank Mastercard Platinum – husband	-$25,465.00
Costs Order Against Husband 29.3.06	-$2,638.00
Costs Order Against Husband 14.9.06	-$360.00

Total liabilities -$152,393.07
Net property including superannuation $330,861.07

Contributions of the parties

I make the following findings in relation to the financial and non-financial contributions of the parties including the contribution to the welfare of the family in the role of homemaker and parent.

The Wife

I accept the evidence of the wife that at the commencement of cohabitation she did not have property of significance.
During the period of cohabitation the wife made a variety of financial contributions.
The wife was employed on a full-time basis on the commencement of cohabitation until the birth of the eldest child and for an unspecified period held a second employment position. There is no dispute that the wife applied her income towards meeting the living expenses of the parties.
The wife joined in with the husband in the purchase of their first home at D in about 1995. The purchase price was $230,000.00. It was funded by a bank loan of $214,000.00 and the balance by the wife made up of a distribution by her parent’s family trust and a gift from her father.
Subsequently in 1998 the wife joined in with the husband in re-financing the loan over the D property. The D property was sold in 1999.
The husband and wife acquired the timeshare interest in about 1995. Precise particulars are not given.
Upon the wife ceasing her employment she received a redundancy package which she says comprised “several thousand dollars”. The quantum is not specified on either a precise or an approximate basis.
In 1999 the wife and the husband followed financial advice received which resulted in the establishment of the Family Trust and the parties became the trustees of that Trust.
In the same year the parties as trustees of the Family Trust purchased the former matrimonial home for $450,000.00. The purchase price was fully financed and in addition the wife received a loan of $15,000.00 from her brother which she also applied implicitly to meeting expenses associated with the purchase of the former matrimonial home. That loan was subsequently waived.
Shortly after the purchase of the former matrimonial home the parties received approximately $115,000.00 being the net proceeds of sale of the D property which they then applied to reduce the mortgage loan over the former matrimonial home.
In the latter part of 1999 the home was destroyed by fire. There followed a protracted period of negotiation with the insurer regarding the extent of rebuilding which took place over a period of about two and a half years. The wife carried out part of the negotiations with the insurer.
The wife joined in with the husband in taking out additional loans to finance the rebuilding of the home.
The wife also made a contribution in the role of homemaker and parent attending to the children’s daily care and needs on a largely full-time basis.
The wife also carried out a range of domestic work in and about the former matrimonial home albeit with some paid domestic assistance for part of the time.
Subsequent to the separation of the parties the wife continued to make a contribution in the role of homemaker and parent. The wife attended to the care and upbringing of the two children on a daily basis. In addition the wife financially supported the children. The financial support was hers solely for several months due to the husband not paying any child support and for a significant period a minimal amount of child support of approximately $21.00 per month.
Since during 2006 the husband has been assessed a negligible amount of child support amounting to about $45.00 per week.
The wife earns income on a part-time basis being $377.00 per week gross and the income earned by her together with family benefits is applied in meeting living expenses for herself and the children.
Subsequent to the separation of the parties the wife was re-engaged in the workforce commencing in August 2004. In that year the wife received a gift of $1,000.00 from her mother which was utilised to purchase camping equipment.
Apart from income earned by the wife during the period of her employment as which terminated in August 2005, the wife unlawfully transferred various amounts from her employer’s accounts for her own benefit. Notwithstanding the utilisation by the wife of those funds towards living expenses for herself and the two children, I will not include application of those funds as a financial contribution given the unlawful nature of her activities. For the same reason I will also not include the wife as having made an indirect financial contribution by borrowing funds from her mother to enable her former employer to be repaid.
In 2006 the wife joined in with the husband in the sale of the former matrimonial home for $1,130,000.00 leaving net sale proceeds of $362,289.49.

The Husband

As with the evidence of the wife there was little if any challenge to the husband’s evidence in relation to his contributions.
I accept his evidence that at the commencement of cohabitation he did not have any property of significance.
The husband made different financial contributions. He was employed on a full-time basis throughout the period of cohabitation and also held a part-time employment until about the year 2000. I find that he applied the income that he so earned towards the parties’ living expenses and liabilities.
The husband joined in with the wife in the purchase of the D property, its financing and subsequently the former matrimonial home and its financing.
I find that the husband also carried out negotiations either direct or indirect with the insurer following the fire which destroyed the home.
The husband’s evidence is that he carried out various improvements to the D property as well as to the former matrimonial home including but not limited to design work.
In 2000 the husband’s evidence uncontroverted is that he received a redundancy package of about $30,000.00 to $35,000.00. He applied that amount towards meeting the parties’ liabilities.
The husband also supported the wife in her undertaking a beauty therapy course.
The husband made a contribution in the role of homemaker and parent in the course of which he assisted the wife in the care of the children attending to their needs and activities.
Subsequent to the separation of the parties, and particularly their physical separation in April 2004, the husband remained in occupation of the former matrimonial home. He met mortgage instalments and outgoings until November 2005. During that time the former matrimonial home was also occupied by the husband’s friend Mr S and for part of the relevant period by his parents who assisted him due to his health deterioration.
In about August 2005 the husband engaged in part-time work and applied his income towards his living expenses and outgoings in relation to the former matrimonial home.
The husband has also provided intermittent child support to the wife.

Assessment of contributions

The parties cohabited for a period of approximately nine years. They have two children.
During the period of cohabitation there is no doubt that each of the parties applied herself or himself to the extent of their ability in the earning of income and for the purpose of making a contribution to the welfare of the family in the role of homemaker and parent.
It is not a matter of controversy that the primary financial contributions were made by the husband whilst the wife made the primary contribution in the role of homemaker and parent.

As at the separation of the parties I assess their contributions as equal.
Subsequent to the parties’ separation the wife has made the primary contribution in the role of homemaker and parent as well as providing financial support for the two children by the application of her income towards living expenses.
The husband provided irregular child support which became greatly diminished so far as the amounts were concerned following the cessation by him of full-time employment in August 2005 due to a worsening in his health. He has largely made minimal amounts of child support since that time as he recognised during the course of his oral evidence.
The husband has continued to make a contribution in the role of homemaker and parent for limited periods in comparison to that of the wife.
I assess the totality of the wife’s contributions since separation as exceeding those of the husband by 2.5 percent.
As a consequence I assess the contributions of the parties to their net property as being in the proportions of 52.5 percent in favour of the wife and remaining 47.5 percent in favour of the husband.

Relevant Section 75(2) matters

I make the following findings in relation to relevant matters that arise pursuant to the provisions of Section 75(2).
The wife and husband are 36 and 29 years of age respectively.
I find that the wife’s current health is sound there being no evidence to the contrary.
The husband’s health is not good. He has suffered from Crohn’s Disease for many years prior to the commencement of cohabitation and since. However it did not affect him to such a degree that it prevented him from being engaged in his employment on a full-time basis as well as for some years having a second part-time employment position to which earlier reference has been made.
I accept the husband’s evidence that his Crohn’s Disease commenced to adversely affect him in 2000 with subsequent deterioration causing marked residual disabilities.
The husband has had specialist medical treatment including for avascular necrosis of the left shoulder and sleep apnoea.
The husband’s further evidence is that he was medically declared unfit for work from mid-August 2005 albeit it that he carried out some part-time work in the period August to December 2005. He states that he has not been engaged in employment since that time.
The husband relied upon the evidence of his general practitioner Dr E and that of Dr R a specialist in chronic pain management who he has been consulting during 2003.
The affidavit of Dr E sworn 16^th November 2005 annexes his report dated 31^st October 2005. The report provides a detailed history and refers to the husband having been certified unfit for work since 15^th August 2005 with a recommended review. Dr E expresses the opinions that “it is likely that his period of incapacity for work will need to be extended. His condition, at this point, appears far from stable and his prognosis uncertain”.
Dr R swore his affidavit on 31^st October 2006 which annexed his report dated 18^th October 2006. It referred inter alia to the husband’s current regime of treatment which involved “a combination of pharmacological and psychological treatment”. He noted that the husband was receiving “regular bone chelation therapy” from Professor H and further surgery may be required but was under review by the husband’s orthopaedic specialist Dr G. Dr R expressed the view that such surgery would probably be required in the near future.
So far as surgery is concerned Dr R was of the opinion that successful surgery would lead to an improvement in the husband’s condition “such that he could work full-time”, although he would be left with “some degree of chronic pain in this scenario but on a more manageable level. I must emphasise that I am not sure that surgery is a viable option and this is being reviewed by Dr [G]”.
No evidence was adduced from Dr G.
Neither Dr E nor Dr R was required for cross-examination.
I accept the evidence of Dr E and Dr R and that of the husband. He gave evidence of having driven a motor vehicle from time to time and showed mobility in different ways. Nonetheless, there is no evidence to suggest that he does not continue to be severely affected by Crohn’s Disease and avascular necrosis of the left shoulder.
Accordingly I find that the husband’s health has been adversely affected by Crohn’s Disease and the other medical issues to which I have referred.
The wife’s income amounts to $539.00 per week gross principally including her wage of $377.00 per week and family benefits $161.00 per week.
The wife has the property and financial resources described in paragraph 176 and the additional liability for unpaid school fees of $14,737.00 less jointly accepted liability of $3,300.00. The parties jointly hold an option for what is described as a “three year buy-back” of their forfeited timeshare in “Beach Resort”. Having regard to the affidavit of the wife sworn 1^st September 2006 Annexure “U” it seems that such an option will expire in or about October 2008. The evidence is not more precise. The wife’s evidence is that she would like the opportunity to exercise the option. The husband’s evidence is that he is not interested in doing so. No value is attributed to the option.
The wife has the physical and mental capacity to be engaged in her current employment providing customer service on a part-time basis each week day from 9.30am to 2.30pm. I accept her evidence that generally employment is not available to her on weekends. The wife also has a demonstrated capacity for employment as a bookkeeper. However whether that employment in reality is open to her given her past unlawful activities with a former employer is doubtful on the evidence let alone the range income that she could earn.
The husband’s income amounts to $267.46 per week gross which principally includes disability support pension $217.16 and rent assistance $50.30.
The husband has the property and financial resources described in paragraph 176. He has a potential further financial resource represented by the willingness by his mother to provide that financial assistance to the extent that she is able to do so although her evidence, which I accept, is that there are now significant limitations on her ability to do so.
The husband currently does not have the physical and mental capacity for appropriate, gainful employment due to the debilitating affects upon him of medical issues to which I have made earlier reference. I accept his evidence that he had an expectation of returning to employment during last year. It is not clear to me whether that was bravado on his part or realistically based. Having regard to his unsound health described earlier in this judgment, it is clear that there are grave doubts as to whether the husband’s aspirations are realistic. So far as the evidence is concerned, there has not been a change in his position in relation to return to employment, as no further evidence was adduced either by him or on behalf of the wife which revealed any such change. There was opportunity to do so given that I granted leave for the case for each of the parties to be re-opened. Each of the parties has been competently represented and no doubt further application would have been made to re-open the case of one or other of them should there have been evidence of an improvement in the husband’s employment prospects.
The wife has the primary care of the two children who are aged 11 and 9 years respectively. The children will spend other periods of time in the care of the husband in accordance with the orders foreshadowed in this judgment. That situation is likely to continue for the foreseeable future.
The parties have the commitments for the support of themselves and the children as set forth in their respective financial statements.
Each of the parties is eligible for superannuation entitlements described in paragraph 176.
I accept the evidence of the wife that her priority is to provide continuing primary care for the children and to that extent prefers to continue with her part-time employment.
I accept the evidence of each of the parties that neither of them is cohabiting with their former partners.
Child support provided by the husband amounts to an estimated $45.00 per week. That amount is clearly inadequate as was recognised by the husband in his evidence.
Since the wife and the two children ceased to reside in the former matrimonial home in April 2004 they have lived in rented premises. They lived in a granny flat until February 2005 which consisted of a converted garage with additional rooms attached. It had two bedrooms one of which the two children shared. Since then the wife and the two children have lived in other rented flat premises.
The husband continued to occupy the former matrimonial home until it was sold in June 2006. I accept the evidence of the wife that the former matrimonial comprised six bedrooms, four bathrooms, five living areas and parking spaces for four cars. It is surprising that it was the husband, rather than the wife and the two children, who occupied the former matrimonial home given its expansive facilities in contrast to the granny flat and other flat premises which the wife and the two children have occupied. That aspect of the matter was not re-explored in the evidence. As far as I am aware, no application was made by the wife for exclusive occupancy of the former matrimonial home with the two children.

Assessment of relevant Section 75(2) matters

I have determined that there will be an adjustment in favour of the wife of a further 7.5 percent of the parties’ net property for the following reasons.
The husband has serious health issues which on the evidence before me and the findings that I have made unfortunately do not suggest the likelihood of marked improvement in the near future. Surgery whilst viable, was not encouraging. I did not have before me evidence from the surgeon mentioned in medical reports.
As a consequence I am very doubtful that the husband has the capacity to earn income which can be effectively exercised in the foreseeable future notwithstanding his aspirations in that regard to which earlier reference has been made.
The wife’s health is good. The wife is engaged in part-time employment earning a modest income.
Factors which have led me to make an adjustment in her favour, notwithstanding the negative findings that I have made so far as the husband is concerned to which I have made brief reference, are that the wife will have the primary care of the two children for many years in the foreseeable future given that their ages are 11 and 9 years respectively. That care will carry with it the need for suitable accommodation on a daily basis, inhibition of the wife’s capacity to earn income, especially as I have accepted her evidence that it is desirable for her to continue in part-time employment, in order to provide after school care for the two children implicitly at least until they are more independent. The economics of the situation were not fully explored in terms of the offset of after school care expenses as against additional net income that might be earned by the wife.
In addition the wife will have almost total responsibility for child support from a practical viewpoint given the negligible amounts which the husband pays pursuant to the last child support assessment that was in evidence. That situation is also likely to continue for the foreseeable future.

Conclusion

The net property of the parties including superannuation following my revision of that property set forth in paragraph 176 amounts to $330,861.07. Given the comparatively low amount of net property it is extremely unfortunate to say the least that the parties were unable to reach a settlement and instead had to spend funds litigating these issues.
It is clear that the contribution based entitlements of the wife to the parties’ net property together with the adjustment that I have made in her favour, having regard to relevant Section 75(2) matters, amounts to 60 percent. On that basis the result is that the wife should have net property including superannuation of $198,516.60. The remaining 40 percent in favour of the husband amounts to $132,344.42.
I have considered the practical implications of orders being made that reflect the percentages to which I have referred for the purpose of reaching a conclusion that orders in those terms are just and equitable as required by Section 79(2) of the Act.[11] Particularly where there is relatively small pool of net property, the possible percentage entitlement of that net property needs to be closely examined which I have done in these proceedings.
[11] Preece and Preece (1981) FLC 91-048 at 76,404; Elsey and Elsey (1997) FLC 92-727 at 83,799.
Each of the items of property ascribed to each of the parties reflects money which is in effect notional as it has undoubtedly been spent, not to mention legal fees that have been paid. There are also considerable liabilities that need to be met. The parties may have to consider making an application to access their respective superannuation entitlements.
The reality is that the most significant accessible property is represented by the net proceeds of sale of the former matrimonial home held in Trust amounting to $278,390.49. The following tables set out the net property and superannuation that each of the parties will retain, together with the lump sum which will be payable to them pursuant to orders that I will make in relation to the funds held in Trust:-

wife to retain/receive

Property

Timeshare	Nil
Add back proceeds relating to motor vehicle	$1,000.00
C Company (wife’s business)	Nil
Funds released to wife pursuant to Order dated 18 July 2006	$10,000.00
IAG shares – 284	$1,599.00
Jewellery	$5,000.00
Bank accounts	$77.00
Furniture and home contents	$5,000.00
Legal fees paid	$825.00
Legal fees paid	$42,846.00

$65,846.00

Superannuation

$10,571.00
$672.00	$11,243.00

$77,089.00

Liabilities

Tax liability – C.G.T.	$39,331.47
School fees	$3,300.00
R Bodyworks	$1,399.00
Coles Myer	$4,107.00
Commonwealth Bank Mastercard	$21,252.00

$69,389.47

Net property including superannuation $7,699.53

Wife to receive 60 percent $198,516.60

Less $ 7,699.53

Lump sum to be paid $190,817.07

husband to retain/receive

Property

Rental bond and advance and rent paid	2,280.00
Funds released pursuant to Order dated 18 July 2006	$5,140.00
Bank accounts	$980.00
Furniture and home contents	$5,000.00
Legal fees paid	$19,240.00
Legal fees paid	$5,342.65
Legal fees paid	$9,000.00
Legal fees paid	$15,357.00
Legal fees paid	$18,000.00

$80,339.65

Superannuation

$24,975.00
$22,460.00	$47,435.00

$127,774.00

Liabilities

Tax liability – C.G.T.	$14,838.73
Loan – husband’s mother	$22,154.34
R Company	$3,723.00
Commonwealth Mastercard	$5,925.00
Commonwealth Mastercard Gold	$7,900.00
Commonwealth Mastercard Platinum	$25,465.00
Costs Order	$2,638.00
Costs Order	$360.00

$83,004.07

Net property including superannuation $44,769.93

Husband to receive 40 percent $132,344.42

Less $ 44,769.93

Lump sum to be paid $ 87,574.49

The wife seeks an opportunity to exercise the option that the parties have held in relation to re-acquiring an interest in the timeshare. The husband does not seek to do that. No value is ascribed to that option. Orders will be made as sought to the wife.

Child support departure application

The wife sought a departure from then current child support assessment for an unspecified monthly amount but otherwise described as “to the maximum monthly amount payable pursuant to the Act for two children”. The order so sought is contained in her further amended application filed 4^th September 2006.
During the course of his opening counsel for the wife stated that the ground relied upon was pursuant to Section 117(2)(c) of the Child Support (Assessment) Act.
The written submissions lodged by counsel for the wife did not advance the matter any further. The amount sought to be paid was not stated and submissions were not made in relation to all of the relevant steps that are required to be addressed pursuant to the legislation.
The written submissions lodged by counsel for the husband are silent in relation to the wife’s child support departure application.
The issue was not raised when the case for the parties was re-opened last year.
I am concerned that having regard to the paucity of submissions, that conceivably there could be a denial of natural justice to the parties were I to determine this application in those circumstances. Accordingly, I propose to have the matter listed for mention before me so as to ascertain the position of the parties. In the event that the application is persisted with then I will make appropriate directions.

I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:

Date: 11 April 2008

[2008] FamCA 239

11 April 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Fiduciary Duty