COAD & COAD

FAMILY COURT OF AUSTRALIA

COAD & COAD

[2011] FamCA 622

FAMILY LAW – CHILDREN – With whom a child communicates – Best interests of a child – Where the husband is incarcerated in goal for the attempted murder of the wife and associated offences – Where the child is to have no telephone communication and limited written communication with the husband, which is to be vetted by the wife.

FAMILY LAW – PROPERTY SETTLEMENT – Final property orders under section 79 of the Family Law Act 1975 (Cth) – Where the husband is incarcerated in goal until at least 2019 – Where the contributions of the parties are assessed at 60 percent / 40 percent in favour of the wife – Where the application of section 75(2) of the Family Law Act 1975 (Cth) results in the wife receiving 90 percent and the husband receiving 10 percent of the total property pool.

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Treatment of a $10,000 gift and $10,000 interest free loan by the husband’s parents to the parties at the commencement of the marriage.

FAMILY LAW – COSTS – Where the husband is ordered to pay half of the wife’s legal costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Where the husband failed to attend Court after the first day of the hearing – Where the husband had been advised that the matter would proceed in his absence and did proceed in his absence.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

B and B: Family Law Reform Act (1997) FLC 92-755
Brown & Brown (1998) FLC 92-822
Essex & Essex (No. 2) [2007] FamCA 639
Gosper and Gosper (1987) FLC 91-818
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Kohn (1977) 30 FLR 175
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Kessey and Kessey (1994) FLC 92-495
LAC and TRF and LKL [2005] FamCA 158
Limmen & Limmen [2007] FamCA 27
McCall & Clark [2009] FamCAFC 92
Pellegrino and Pellegrino (1997) FLC 92-789
Pierce v Pierce (1999) FLC 92–844
R and R: Children’s wishes (2000) FLC 93-000
Re: H & Ors (1996) 1 All ER 1
Russell v Russell (1999) FLC 92-877

APPLICANT:

Ms Coad

RESPONDENT:

Mr Coad

INDEPENDENT CHILDREN’S LAWYER:

Mr Mulvany

FILE NUMBER:

MLC

8274

2008

DATE DELIVERED:

01 July 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

2 February 2011 and 25 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Curtin

SOLICITOR FOR THE APPLICANT:

CE Family Lawyers

COUNSEL FOR THE RESPONDENT:

Self Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

Orders

IT IS ORDERED THAT:

1.All previous parenting orders be and are hereby discharged.
2.The wife have sole parental responsibility for the child W COAD (“W”) born in June 2000.
3.The child W live with the wife.
4.The husband be entitled to write to W on seven occasions each year being:-
a)      once every 3 months being on or around 1 August, 1 November, 1 February and 1 May;
b)     on or around W’s birthday, being on … June;
c)      on or around Father’s Day; and
d)     on or around Christmas Day –
and, subject to the provisions of paragraph 5 of this Order, the wife do all acts and things necessary to facilitate such correspondence being delivered to W and for having delivered to the husband, by pre-paid post, any correspondence or gift(s) which W writes or wishes to give to the husband.
5.For the purpose of implementation of the preceding order concerning correspondence between the husband and W:-
a)      all correspondence is to be sent by pre-paid post and through the prison system and notwithstanding the terms of any intervention or domestic violence order;
b)     within 7 days the wife notify the husband, through her solicitors, of the postal address to which all such correspondence is to be sent;
c)      the husband forthwith notify the wife, in writing, and keep the wife notified of the postal address to which she may send gifts or correspondence from W;
d)     the wife be entitled to read any correspondence from the father to W and may, at her discretion, decline to pass that correspondence on to W on the basis that she considers that it is not in W’s best interests to read or to receive the correspondence;
e)      the wife retain any correspondence that she does not pass on to W until W attains the age of 18 years whereupon she advise him of the existence of the correspondence;
f)      the wife, at her absolute discretion, may seek guidance from the independent children’s lawyer, or any other person, as to the appropriateness of the correspondence sent to W;
g)      the provisions of subparagraphs (d) to (f) inclusive apply mutatis mutandis to gifts from the husband.
6.As soon as practicable the wife facilitate the attendance of W upon Mr P, psychologist or, in the event that he is not available, any other appropriately qualified person of the wife’s choice for the purpose of W being assisted with the diminished role the husband will henceforth play in his life.
7.Upon completion of the counselling provided for in the preceding order the independent children’s lawyer file and serve a brief affidavit in which he recites whether the process has been completed and summarises the gist of the psychologist’s opinion as to its success.
8.The reasons for judgment this day be provided by the independent children’s lawyer-:
a)      to the proper officer of the prison at which the husband is held, together with a request that that part of the file be transferred in the event that the husband is transferred to another prison facility;
b)     the grief counsellor retained by the wife to see W; and
c)      any other person who, in the opinion of the independent children’s lawyer, should have the reasons so as to promote the best interests of W.
9.The mother have the conduct of sale of the former matrimonial home situated at a Melbourne suburb.
10.The mother place the former matrimonial home on the market for sale prior to the end of this year and upon settlement of the sale the proceeds be divided as follows:-
a)      To meet the proper adjustments between vendor and purchaser at settlement;
b)     To discharge the registered mortgage to the Commonwealth Bank of Australia;
c)      To meet the legal costs and disbursements of and incidental to the sale including any costs of nomination of a real estate agent to conduct the sale; and thereafter
d)     The balance to be divided as follows:-
i)X to the husband, subject to paragraphs 12 and 14 of this Order; and
ii)the balance to the wife.

11.For the purpose of implementing the payment provided for in paragraph 10(d)(i) of this Order X = A – B where:-
a) “A” is calculated as ((NP + HS + WS) + $2,000) x 10% where:-
i.“NP” is the net proceeds of sale of the former matrimonial home after payment of adjustments, the mortgage and legal costs, estate agents fees and disbursements;
ii.“HS” is $21,509 (being the husband’s superannuation interest);
iii.“WS” is $43,238 (being the wife’s superannuation interest); and
iv.“$2,000” representing the parties’ motor vehicles; and

b) “B” is $21,509 + $1,000.
12.The husband’s entitlement to a payment pursuant to paragraph 10(d)(i) of this Order be held in interest bearing trust deposit on his behalf by the solicitors for the wife pending a determination by the court, or an agreement between the parties evidenced in writing, as to the extent of the husband’s liability to contribute to the wife’s costs pursuant to paragraph 14 of this Order and the amount of the husband’s liability for the wife’s costs be deducted from the monies due to him from the sale of the former matrimonial home.
13.Pursuant to s106A(2) of the Family Law Act 1975 a Registrar of the Court is appointed to execute on behalf of the husband all and any documents which are necessary to effect a sale of the former matrimonial home and completion of the sale.
14.The husband pay and be responsible for one half of the wife’s costs of and incidental to these proceedings from the date of preparation of the wife’s amended application in a case filed on 3 March 2009, such costs to be calculated on a party/party basis and, in the absence of agreement between the parties, be assessed in accordance with the Rules of Court.
15.The wife’s practitioners provide a copy of this Order and the reasons for judgment herein to the proper officer of Victorian Legal Aid under cover of a letter which requests that the caveat which Victoria Legal Aid has lodged against the title to the former matrimonial home be withdrawn.
16.All exhibits tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless any Notice of Appeal is lodged.
17.The Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner after the expiration of the appeal period.
18.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8274 of 2008

Ms Coad

Applicant

And

Mr Coad

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These proceedings dispose of the competing applications of the husband and the wife for parenting orders in relation to their child, W, born in June 2000, and a final alteration of property interests. The proceedings were commenced by the wife’s application filed on 19 December 2008, and subsequently amended on 8 September 2010. However, the wife now seeks orders somewhat at variance with the orders sought in that application, and I will define her proposals later in these reasons.
The husband is incarcerated at a Prison, serving a gaol sentence for his attempted murder of the wife, intentionally causing serious injury to the wife and conduct endangering life in respect of a person who came to her assistance. The wife relies on the following documents:
a)Two affidavits of the wife, sworn respectively on 8 September 2010 and 15 December 2010;
b)Two affidavits of her lawyer, both sworn on 5 November 2010;
c)An affidavit by a registered valuer in respect of the value of the former matrimonial home, sworn 5 November 2010;
d)An affidavit of the surgeon who performed reconstructive surgery on her face, Dr M, sworn 4 November 2010;
e)An affidavit of another doctor who attended her, Dr L, sworn 17 January 2011;
f)An affidavit by her father, Mr H, sworn 4 December 2010;
g)An affidavit of Mr B, sworn 4 December 2010, who is her behavioural therapist; and
h)An affidavit of the husband’s father, Mr Coad Snr, sworn on 18 February 2011.
The husband filed no material. All of the wife’s documents were served on him in prison via the appropriate authorities. The husband claimed not to be able to prepare any documents on his own behalf in prison. I note that he is a person of some education. He was formerly a public servant, and is a qualified legal professional. On 11 November 2010, I made an order which required the husband to attend court personally for the hearing, and granted him leave to make an oral application in specific terms for the final alteration of property interests and parenting orders. The terms of the orders sought by him were, of course, in specified terms.
I extended the time in which the husband could comply with previous orders for the filing of documents until 4 pm on 10 January 2011. I ordered that, in the event that the husband failed to file any documents pursuant to the orders of the court, he be permitted at the final hearing to give evidence orally, but that his evidence would precede that of the applicant wife. That is what occurred on the first day of the trial, which was 2 February 2011. The trial was conducted in two courtrooms. The wife, her counsel, Mr Curtin, the independent children’s lawyer, Mr Mulvany, and myself were in one courtroom, linked by video to another courtroom, in which the husband, two prison officers, and a court officer were located. This was pursuant to my decision on the wife’s application that she not be required to be in the same room as the husband.
On the first day, there was some agreement in relation to parental responsibility for the child and that he live with the wife. The matters that remain in issue in relation to the child are whether there ought to be any telephone communication between the husband and the child, and if so, the frequency of such communication; whether the child should be enrolled in an Anglican Sunday School; the frequency of any written communication between the husband and the child; and the wife’s entitlement to vet any written communication between the husband and the child. All matters in relation to a final alteration of property interest were in issue, although on the first day of the hearing the applicant withdrew her applications pursuant to the Child Support (Assessment) Act1989 (Cth) for lump sum child support.
On the first day the husband gave his oral evidence in chief. The matter was adjourned late in the day to 25 February 2011. A gaol order was made to enable the husband to attend Court on the adjourned date and a further order was made to facilitate him being able to produce documents in Court which he said would assist his case. These included the photographs which had been sent by the wife which, he alleged, were of the same image of the child, and documents in support of his property application including correspondence about a credit card debt incurred by him but for which he alleges the wife is responsible. The husband’s viva voce evidence also put in issue for the first time whether the parties owed his parents $6,000 (as the husband alleges) or nothing on the basis that they had forgiven the balance of a loan in the sum of $2,000 (as was alleged by the wife). There was discussion about which party would be expected to adduce evidence from the husband’s parents. Ordinarily the husband would be expected to adduce evidence from his parents about money which he alleges they require to be repaid. However, the evidence in the parenting proceeding satisfies me that the husband has far less to do with his parents than the wife does so the Court’s expectation was that, if any evidence was to be adduced, it would be adduced by the wife. That occurred and in the week of the trial an affidavit sworn by the paternal grandfather was filed by the wife which was corroborative of her allegation that no monies had to be repaid. The paternal grandfather was made available for cross-examination, but ultimately was not required.
Prior to 8.45 am on the second day of the defended hearing, my Chambers was contacted by the Prison and informed that the husband was refusing to be escorted to Court. By successive telephone calls, arrangements were made for the husband to appear electronically by video link between the Prison and the Melbourne Registry. Ultimately, however, the husband refused to participate by video link either. When the hearing commenced, evidence was given by Senior Prison Officer, Mr J, and Mr T as to the details of the husband’s refusal to attend. In particular, that it was explained to the husband after the initial call at 8.43 am that, if he did not attend Court, the hearing would proceed in his absence. I received evidence that the husband was not unwell or otherwise unable to attend Court.
As indicated, the wife was represented by Mr Curtin of counsel. The husband represented himself on the first day but did not attend Court thereafter. Mr Mulvany appeared as the independent children’s lawyer.

Findings of fact

The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. That means that a court must be satisfied on the evidence that the occurrence of an event is more likely than not. The inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger the evidence must be that it did occur, before, on the balance of probability, its occurrence will be established.[1]
[1] As Lord Nicholls discussed in Re: H & Ors (1996) 1 All ER 1, 16.
In these reasons a statement of fact is a finding of fact.

Matters to be determined

I will deal first with parenting matters, and then with an alteration of property interests.
The wife’s application for parenting orders included the husband being permitted to write to the child once every three months, in addition to on Father’s Day, the child’s birthday, and at Christmastime, being a total of seven times per year. Her proposal is to vet and be entitled to dispose of any communications between the child and the husband, and vice versa. There was no suggestion by her that she would dispose of these communications unless, on her assessment, there was some harmful or unsatisfactory content. She opposed any face-to-face communication or any communication by telephone.
The husband’s proposal did not include any face-to-face time between himself and the child for the time being. He acknowledges that the maximum security area of the prison in which he is currently held is not an appropriate place for a young child, and says that it may change in the event he is moved out of maximum security. The husband now seeks to have four telephone calls with the child each year, within a 48 hour period of his birthday; the child’s birthday; Father’s Day; and Christmas Day, 25 December. He maintains an objection to the wife being able to vet or veto any communication passing between him and the child, or vice versa.
He seeks an order that the wife must facilitate all communications from the child to the husband. He opposes any distribution of the report of the Family Consultant, which was prepared for the purpose of this proceeding, but concedes that the Court’s reasons for judgment ought to be distributed to various persons who will have a role in the care of the child. The husband originally sought “some say” in the type of school the child goes to, and to be notified about major health issues. The latter did not trouble the wife at all. The husband said his preference was for the child to attend an Anglican school. When pressed, he had no proposals in this regard. He then said that he wanted the child to go to a school where there was some religious education offered, because he did not think that the wife would otherwise provide that at home, and that the child would miss out on part of a family tradition from his side.
Ultimately, the husband distilled his position to an application that the wife do all acts and things necessary to ensure that the child is enrolled in, and attends, an Anglican Sunday School convenient to her.
In relation to an alteration of property interests, the wife seeks an adjustment in her favour of 95 percent of the total pool of assets which she says is divisible between herself and the husband. This would result in the husband receiving little more than his superannuation entitlements of some $21,509, and the wife receiving the balance of the assets, including all of the liquid assets. Part of the wife’s evidence was directed to a claim by her that the husband had forged her signature, deceived her generally vis a vis dealings with their mortgagee bank, withdrawn funds and used these funds inappropriately. The husband conceded that he forged her signature, but said it was with her consent and at her direction. The wife agreed in part. Ultimately, the wife did not pursue this aspect of her claim.

The husband seeks an adjustment of 60/40 percent in favour of the wife, and specifies that from his 40 percent, which would be in the approximate sum of $160,000, inclusive of his superannuation entitlement, he would pay back his money owing to Legal Aid for his criminal trial, $15,500 on a Commonwealth Bank credit card, $6000 to his parents, and place the balance in an interest-bearing trust deposit for his own benefit, and pay child support from the interest earned on his invested funds at a rate of 18 percent of the interest which accrues annually.

The parties

The husband is currently aged 44 years. He has variously been employed as a public servant, a telephone canvasser, a legal professional, and in that latter role, as a senior public servant for the State of Victoria.
The wife is 38 years of age. She is in full-time employment on her own account as a writer. The wife has re-partnered. Her description of her current circumstances was not challenged.

Relevant Chronological History

The husband and wife commenced cohabitation in mid-1997, at which time the wife was employed as a writer, earning approximately $30,000 per annum, and the husband was employed as a full-time public servant, earning approximately $37,000 per annum. He had $10,000 invested in his parents’ name, and otherwise the parties had no assets of significance.
The parties married in April 1998. The wife continued in her full-time employment. The husband commenced to work part-time.
In December 1998, the parents purchased the former matrimonial home in a Melbourne suburb. There was lack of agreement between the husband and the wife about the purchase price, which has no bearing on the issues which I have to determine. The wife concedes that the husband contributed the $10,000 he previously had invested with his parents. The husband contends that his parents also lent the parties $20,000 on very favourable and interest free terms, of which $6,000 still remains. The wife claims that the loan was $10,000, of which only $2,000 remains unpaid. The balance of the purchase price of the property, and improvements effected to the property during the marriage, were financed by way of joint borrowings.
The child was born in June 2000. The wife took six weeks maternity leave to care for the child at home and thereafter enrolled the child in full-time child care. The husband remained in part-time employment for the public service, but shortly thereafter resigned that position. The husband says that the part-time employment with the public service did not suit him. By the end of 2000, the husband was undertaking a trades traineeship and by March 2001 he had commenced working for a Bank in their call centre.
In March 2002, the husband commenced studying law full-time, and worked at a local petrol station for two or three shifts per week. The wife otherwise supported the family.
The wife alleges that by November 2006 the parties had repaid $8,000 of the moneys owing to the parents, and that the husband’s parents then forgave the balance of $2,000. That is an issue I have to decide in these proceedings.
The husband was unemployed from February 2007 until August 2007. In May 2007 the wife commenced her own business. Between August 2007 and September 2007 the husband commenced full-time employment as a senior public servant.
The wife deposes that from approximately 2002 she and the husband moved into separate bedrooms. The husband disputes this and says that in approximately 2003 he spent some nights in a spare room in the former matrimonial home so that he would not wake the wife when going to bed after studying late into the night. He says that otherwise the marriage was intact and the parties remained on intimate terms with each other.
At the end of June 2007, the wife says that she told the husband that she wanted a divorce and that shortly thereafter they each told the child that they would be getting a divorce. The husband denies that they ever told the child this. He denied that he had any realisation that the marriage was over, although he had agreed to attend some counselling with the wife and did so. Nothing turns on these disputed facts. The wife deposes that the husband initially said that he would move out of the former matrimonial home and then, weeks later, informed her that he was no longer going to move out. She was in the process of finding accommodation for herself and the child and a gentleman with whom she had formed a relationship when, in late 2007, the husband attempted to murder her.
The events of the offence are described comprehensively in the sentencing comments of the Judge handed down early in 2010 in the Supreme Court of Victoria. They are an annexure to the wife’s affidavit, sworn 3 September 2010 in the following terms:
[Sentencing comments have been omitted to comply with the requirements of s 121 Family Law Act 1975 (Cth)]
Before me, the husband took issue with some of the sentencing comments and has appealed his sentence to the Court of Appeal. The issue taken by the husband related to his subsequent threats to kill the wife, which was the subject of evidence by a probationary prison officer and the husband’s mother. He did not take issue with the description of what occurred in late 2007. I accept that the sentencing comments are more or less accurate.
The husband was arrested and charged. The injuries sustained by the wife are described at paragraphs 47 and 48 of the sentencing comments as a fracture to her right eye socket and cheekbone, which had to be reconstructed with a titanium plate, and her broken nose realigned.
For about eight weeks she could not see properly and her balance and coordination suffered. The initial bruising was so bad that the child did not recognise his mother in hospital, calling her “a black-eyed freaky monster”. The bruising to her face took some months to fade. Due to the effect of painkillers, she needed the help of others with bathing for about four weeks after the attack. For months she suffered a constant throbbing in her head due to nerve damage to the right side of her face. The bruising to her chest rendered her unable to breathe properly for weeks, requiring physiotherapy. At the time of the sentencing, she still had ongoing physical problems because of her injuries, including nerve damage to her right iris, which renders her hypersensitive to changes in light and teeth sensitivity.
Her eye spasms when she has to concentrate for long periods, which makes it difficult for her to perform her work. The wife relied on the evidence of two medical practitioners, who, ultimately, the husband did not seek to cross-examine. Dr M is a medical practitioner who examined the wife seven days after the incident, and saw her again on four occasions, as well as operating on her under general anaesthetic to surgically repair her fractured nose and a fracture to her right infraorbital margin. He describes the wife’s presentation at his final review as having “had an excellent result from her surgery”.
There was an affidavit by Dr L in relation to his examination of the wife for injuries to her eye. During the hearing, the husband initially sought to cross-examine the surgeon to ascertain whether some of the injuries to the wife’s eyes, nose and face were the result of the car accident rather than his punches to her face. I indicated that it did not matter for my purposes whether he inflicted injury in the car accident or by punching the wife to the face. Thereafter he did not seek to cross-examine the surgeon.
The wife describes her injuries as follows:
During the incident, the respondent beat me on the face and the body so badly that when [the child] was brought into hospital two days later, he did not actually recognise me. It was not until I started speaking to him that he realised it was me. He nicknamed me the “black-eyed freaky monster”. As a result of the blow to my face, the respondent broke my nose and cheekbone, and I now have a titanium plate. He also damaged my eye socket and crushed the nerve. To this day, I still have nerve damage problems with my face, and three of my top teeth continue to cause me pain. I am affected when I eat hot and cold foods, and I have to live with a constant pins and needles sensation in my mouth. Even cold wind is enough to cause me pain in the mouth.
I still experience a lot of pain with my right eye. Because of the nerve damage, the right iris is fixed open wider than the left eye, and allows more light in. I am hypersensitive to changes in brightness and darkness, and camera flashes, flickering lights and seeing sunlight through trees whilst driving can result in a twitching spasm in my eye. The right eye becomes tired more often than the left. When I have to concentrate for long periods of time, for example, when I stare at a computer screen, which I do constantly for my work, my right eye spasms. [2]
[2] Wife’s affidavit sworn 3 September 2010, [42] – [43].
I note that the surgical intervention on the wife was “a success”, but I am satisfied that it has left her with the nerve damage and physical sensations described by her in her affidavit.
Following the assault, the child was cared for by the wife’s father for approximately a month.
On 8 October 2007, the wife vacated the former matrimonial home and commenced residing with the child and her new partner in rental accommodation. The former matrimonial home was leased.
In September 2008, the wife filed an application for divorce, which was granted on 23 October 2008.
On 19 December 2008, the wife instituted these proceedings. On 23 February 2009, the wife filed an application in a case seeking interim orders, pursuant to which she would receive the net rental income from the former matrimonial home, which she could apply in payment of the mortgage affecting the home. The husband would not agree to the same. The wife amended her proceedings, by an amended application in a case and the matter was relisted before Senior Registrar FitzGibbon on 11 March 2009, at which time the husband did finally consent.
The former matrimonial home has been rented substantially since October 2010, but there is a shortfall in the expenses associated with the property. The rental income is approximately $1,520 per month, whereas the mortgage repayments are $2,010 per month, and rates and other outgoings are estimated by the wife at $150 per month. That is a shortfall of some $640 per month, which has been solely born by the wife. During the period of approximately one month in January 2009, when the husband required half the rental funds to be paid to him, he received $536.78 of those rental proceeds, and the wife had to cover the resultant shortfall. The wife deposes that she has made over $30,000 of contributions to the property since separation, and that those contributions have come from her income.[3] In oral evidence she said that, taking into account the tax deductibility of some expenses, she was probably $10,000 out of pocket.
[3] Wife’s affidavit sworn 3 September 2010, [59].
I am satisfied that there has been delay in this matter proceeding to a final hearing which has caused the wife’s costs to escalate. It could have been listed for hearing much earlier than it was listed. However, I am satisfied that there was some delay whilst the parties awaited the husband’s sentencing. He pleaded guilty in mid-September 2008, following his committal. As was commented by the judge in her sentencing reasons:
Your counsel accepts that the plea was not made at the earliest possible opportunity but I accept that the plea was “timely”[4].
[4] Sentencing comments of the judge in the Supreme Court of Victoria on … 2010, [70].
Up until mid-September 2008, I am satisfied that the wife had the expectation that both she and the child would have to give evidence at the husband’s criminal trial.
In April 2009 the husband retained a firm of solicitors, Kenna Teasdale, to act on his behalf, but ultimately they ceased to act in August 2010. The matter was listed for directions on 26 June 2009, by telephone, but could not progress to a final hearing because the husband was not in a position to file documents or evidence until after he was sentenced in the criminal proceedings.
In early 2010, the husband was convicted of attempted murder, intentionally causing reckless injury, and reckless conduct endangering life. He was sentenced to a period of 15 years incarceration with a fixed non-parole period of 12 years, and his time already served was fixed at 902 days. The husband’s unchallenged expectation of his release date is August 2019 at the earliest and August 2022 pursuant to the head sentence, although as indicated, the husband has an appeal pending in relation to the period of his sentence, alleging that it is manifestly excessive.
These proceedings were listed for further review on 5 March 2010 when it was adjourned, again, to 6 April 2010 which was adjourned, by consent, until 13 May 2010 and again to 5 July 2010. On 5 July 2010 it was assessed as ready to proceed to a listing for final hearing before a judge and was allocated to my docket. I am satisfied that the husband’s incarceration increased the wife’s legal expenses.
On 12 August 2011 the matter came before me and the parties were ordered to file documents in anticipation of a final hearing. The husband did not appear although his previous solicitor did attend as a courtesy to the Court. The husband did not ever comply with the orders for filing of documents. On 11 November 2011 I gave permission to the husband to proceed by way of oral evidence and with an oral application. I am satisfied that this substantially increased the wife’s costs because it extended the hearing considerably. However, the husband did not file documents and it was the only practicable way to proceed. In the event, however, the husband announced his oral application and gave evidence in chief but refused to participate for the balance of the hearing,
The wife made a victims of crime claim, for which she received approximately $19,000. The funds were invested but have now been expended.
In December 2008, the wife had lodged an application for an assessment of child support. The first assessment required the father to pay $93.50 per month. That was apparently based on an income of approximately $37,000 which, of course, was no longer applicable to the husband. The husband applied, from prison, to have the assessment reduced to nil. He succeeded. The husband says that he was assisted by an assessment officer.
The wife deposes that she is employed in her business and earning a total of approximately $1,782 per week. Her expenses are $1,773 per week, inclusive of rental payments of $327 per week. The husband’s statement was that he is currently entitled to $15.75 per week, of which he can access $12.60 per week. The husband stated that the rest is set aside for him on his release, and he estimates that will amount to some $1,800 by way of savings. From his meagre income he says that he buys his own toiletries, matches, tobacco, cigarette papers.
In the course of outlining his proposals for a final alteration of property interests, he said that he would only access $200 of any interest which accrued on invested funds so that he could buy the newspaper.
I will now deal with the parenting matters, and then make a determination of property interests.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to s 60CA, in deciding to make any parenting order in relation to a child, I must regard the child’s best interests as the paramount consideration.
Subject to the best interests of the child being the paramount consideration, s 60B sets out the Objects and Principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. Section 60B defines the objects of Part VII as to “ensure that the best interests of the children are met” by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
In the event that I was to decide that the parents are to have equal shared parental responsibility for the child, before making any orders, I would have to consider whether it would be in the child’s best interests and reasonably practicable[5] for the child to spend equal time with the parents and, if not, then whether it is reasonably practicable for the child to spend substantial and significant time with the husband. Section 65DAA(3) defines substantial and significant time to include weekends, holidays, weekdays and time which would permit the husband to be involved in the child’s daily routine and occasions and events of particular significance to the child and time which would allow the child to be involved in occasions and events of particular significance to the husband. Regardless of the child’s best interests, the husband’s detention in a maximum security prison makes it impracticable for the care of the child to be shared between his parents on an equal basis or for the child to spend substantial or significant time with the husband.
[5] “reasonably practicable” as defined in the Family Law Act 1975 (Cth) s 65DAA(5).
The best interests principle is relevant to the allocation of parental responsibility as well as to time to be spent or communication to be had between the husband and the child.

Determining the child’s best interests

In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:
(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.

The benefit of a meaningful relationship as a primary consideration

Section 60CC(2)(a) of the Act requires an evaluation of the nature and quality of the relationship between the child and his parents by reference to additional considerations. It is a prospective[6] enquiry in which I evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to them into the future.
[6] McCall & Clark [2009] FamCAFC 92 (Bryant CJ, Faulks DCJ & Boland J), [118] – [122].
The husband contends that the child should know him and his point of view. The husband’s incarceration circumscribes what kind of relationship he can enjoy with the child now and for about the next ten years. The husband accepts that his being held in maximum security makes it too hard for the child to have face to face time with him now but he looks forward to a time when he is relocated to a prison facility more conducive to the child being able to visit him, and to the child attaining a degree of maturity which will make a prison visit less daunting than it would now be. In the meantime, the husband seeks to continue his relationship with the child by telephone calls and correspondence. By implication, the husband’s case is that any lesser involvement by himself with the child would be too restrictive and not constitute a “meaningful relationship”.
The wife and the independent children’s lawyer appear to have adopted the opinion of the Family Consultant that the husband should have only as much involvement with the child and only be in the child’s life as is required to maintain the child’s emotional health and to relieve the child from feelings of sadness or guilt about his father’s incarceration. It is implicit in their joint position that an interactive time or communication between the husband and the child is not in the child’s best interests. That said, the wife and the independent children’s lawyer readily accept that the child must maintain a real and evolving sense of his father. In other words, neither seek to eradicate the husband from the child’s life.
I will consider this aspect, of what benefit there is for the child in having a meaningful relationship, further and after I have taken into account the additional considerations.

Protection from harm – as a primary consideration

The other primary consideration requires the Court to consider what, if any, arrangements are necessary to protect the child from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, “abuse” is narrowly defined in s 4 of the Act as “an assault, including a sexual assault, of the child”.
The Court must assess the future risk of exposure of the child to physical or psychological harm and formulate orders which protect him from that harm.
Neither parent contends that the child is at risk of physical abuse at the hands of the other.
It is implicit in the husband’s case that it would be psychologically harmful for the child to be deprived of an ongoing communication with him in the form of telephone calls and correspondence.
The position of the wife and the independent children’s lawyer is that the husband is a highly manipulative and seriously flawed personality and that the child should be protected from the negative impact of those traits. From the perspective of the wife and independent children’s lawyer, direct involvement of the husband in the child’s life, be it spent face to face, electronically or by correspondence, will expose the child to an unacceptable risk of emotional abuse by the husband, as the child will begin to have a real understanding of the husband’s offences against the wife and there is a possibility that the husband will unconsciously or consciously undermine the wife in the child’s company, out of spite or self justification.
I will consider this aspect, of the extent to which it is necessary to protect the child from physical or psychological harm, further and after I have taken into account the additional considerations.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. They are included in the legislation to assist the Court make the best decision for the family whilst having regard to the child’s best interests as the paramount consideration. The additional considerations provide very useful perspectives to the Court’s evaluation of the benefit to the child of having a meaningful relationship with the husband and what (if anything) is necessary to protect the child from psychological abuse or harm given that the husband is in prison and there is no concern about physical harm. They are the windows through which the Court can assess the larger landscape of the child’s best interests and map out how each parent can best contribute to the child’s optimal well being.
Section 60CC(3)(m) of the Act requires me to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.[7]

The child’s views[8]

[7] B and B: Family Law Reform Act (1997) FLC 92-755.

[8] Family Law Act 1975 (Cth), s 60CC(3)(a).

In determining what is in the child’s best interests, the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
Previously there was a provision,[9] which required the court to take into account the child’s “wishes”. There is significant jurisprudence from this court in relation to children’s wishes which, as will become apparent, I consider relevant and helpful in relation to the Court’s assessment of, and weight to be accorded to, children’s views in the context of s 60CC(3)(a) of the Act.
[9] The repealed s 68F(2) of the Family Law Act 1975 (Cth).
“Views” will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion, whereas “wishes” are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind.[10] I agree that that consideration of the children’s views should allow for a decision to be made in consultation with the child without the child having to make a decision or express a “wish” as to which parent he or she is to live or spend time with.[11]
[10] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[11] Ibid [56].
Consideration of a child’s views does not exclude consideration of a child’s wishes. In this case, it is common ground that the child told the Family Consultant that he would like to spend time with the husband although not at prison.[12] In the Family Report, Mr N records that the child:
stated that he would feel comfortable spending time with [his father] and would like to. However, he did not like the notion of the prison environment, but wanted to spend time with his father because he loves him and stated that is his dad.[13]
That is a reasonable and understandable for a boy of the child’s age and experience. His reluctance to face to face time with the husband is associated to the environment in which he knows the husband is detained for many years to come rather than to the husband personally.
[12] Family Report dated 24 January 2011, [67]
[13] Ibid [66].
Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R and R: Children’s wishes (2000) FLC 93-000, in relation to children’s wishes, as follows:
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that in the discussion by the Full Court in R v R, reference to “wishes” may be read interchangeably for “views”.
The Family Consultant, to whom the child expressed his views, expressed a strong opinion against the introduction of face to face visits between the child and the husband. I am satisfied that the same considerations which apply to face to face visits apply to spontaneous and interactive communication between the child and the husband such as by telephone, as the husband proposes. Relevantly, the Family Consultant expressed the following opinion:
Based upon the above, this Family Consultant is unable to support [the child] spending any face-to-face time with his father until he becomes an adult and is able to self-protect and decide for himself what sort of relationship he would like from his father upon his release from prison. [The father] has been incarcerated for attempting to kill [the child’s] mother and the knowledge and gravity of his father’s crime will be understood more fully as [the child] matures. This Family Consultant has taken into consideration [the child’s] expressed views of wanting to see his father, but at ten years of age [the child] does not appear to have maturity, level of understanding or capacity to effectively comprehend the magnitude of this matter. Furthermore, his innocence could potentially place him and his mother at significant risk of harm and he would inadvertently reveal certain pieces of information. In this Family Consultant’s opinion, the risk to [the child’s] emotional stability is simply too great and would likely be significantly compromised if he commenced spending regular time with his father in a maximum security prison.[14]
[14] Family Report dated 24 January 2011, [81].
I note the husband’s evidence to the effect that the child said to him during a prison visit that he wanted to visit the husband once a month and for the husband to write to him each day. The husband’s evidence was untested because he did not submit himself to cross-examination. The wife’s evidence was that she very much doubted that the child would have made that statement. When pressed, she acknowledged that the child may have uttered something to that effect to make the husband happy. The husband claimed that the child said that he took a letter from the husband to school for two weeks. The wife’s evidence was that she knew that the child had not done so because he left the letter in her possession after reading it. However, I think that she accepted that the child may have told the husband otherwise in order to appease him. I find that to be an entirely reasonable interpretation of events.
I am satisfied that the child is not sufficiently mature to appreciate the implications and consequences of interactive or unfiltered communication between his father and himself. The Family Consultant considered the adverse consequences to the child of being directly exposed to the husband in the following terms:
74.      […] Notwithstanding [the father’s] conviction, sentencing and pleading guilty to the charge of attempted murder, he advised this Family Consultant that [the mother] lied, that the prosecution’s evidence did not make sense and that he did not attempt to kill [the mother]. He also maintained that [the child] should be afforded an opportunity to hear “his side of the story”. In this Family Consultant’s view, as [the child] soon embarks upon adolescence it would likely cause him enormous confusion, difficulty and emotional turmoil if his father professed from prison that he did not attempt to kill his mother. Adolescence is generally a developmental stage whereby young people start to make sense of their place within society, they test boundaries, establish a greater understanding of authority and the values they learned from their parents as a young child are often reinforced as they gain more independence. In this Family Consultant’s view, [the child] being exposed to such contradictory information from his father would be emotionally abusive. Furthermore, this Family Consultant lacks the confidence that [the father] would be able to contain himself and not share his very strident views with [the child] even in the strictest of visitation conditions.
75.      As [the child] continues to mature his capacity to more fully understand and comprehend the ramifications of his father attempting to murder another person, let alone his actual mother may cause enormous confusion and anger as he struggles to make sense of this significant incident in his family. Whilst [the child] is not attending counselling at the moment, it is quite important that he be linked into an appropriate professional whom he may access at various stages in the future. [The mother] may require the assistance of professional support to help [the child] through these struggles and the challenges she may experience as a parent.
76.      The sentencing comments by the [Supreme Court Judge] indicated that [the father] demonstrated no remorse for his actions and appeared to pose a real threat to [the mother]. After some three years incarceration, [the father] appears in this Family Consultant’s opinion, to be a very controlling, but a calculating and angry individual. He seems to hold significant resentment, anger and hostility towards [the mother] and boldly took the opportunity to profess his power and dominance by stating that he knows [the mother’s] residential address, the vehicle she drives and that if he wants to seek retribution upon his release he will simply do so. [The father] could not convince this Family Consultant that there was no risk and he would likely utilise any opportunity to communicate with [the child] for the purposes of soliciting information from him about [the mother].[15]
[15] Ibid [74].
I accept the Family Consultant’s assessment of the husband. The risks to the child’s well being directly and indirectly through the wife, are very significant.
I take into account the child’s view about being comfortable to see the husband. His views are important. However, his view does not support face to face time between himself and the husband at this time. Very importantly, however, the risks identified by the Family Consultant as being associated with the child having direct contact with the husband weigh heavily against communication occurring between the child and the husband. For this purpose, I draw no distinction between face to face time and telephone communication between the husband and the child.

The nature of the child’s relationship[16]

[16] Family Law Act 1975 (Cth), s 60CC(3)(b).

I have considered the nature of the child’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
There is no evidence to suggest that the child has anything other than a loving and extremely close relationship with the wife. The Family Consultant recorded that the husband’s mother “stated that [Ms Coad] has been a remarkable mother with [the child] and she has been amazed with her commitment as a mother, she takes him everywhere and does everything with him.”[17] On the other hand, both of the husband’s parents expressed caution and concern about the child spending time with the husband now. The paternal grandmother also recalled that during the marriage “her son appeared to spend little time with [the child] and was always on the computer” [18], which is corroborative of the wife’s evidence that she was the primary carer of the child.
[17] Family Report dated 24 January 2011, [49].
[18] Ibid [46].
The Family Consultant considered the nature of the child’s psychological relationship with the husband in the following terms:
73. For all intents and purposes, [the child] does not presently have a relationship with his father. [The child] has memories of his father from an earlier time and likely bases his views upon these memories coupled with an occasional card from his father on special occasions. Therefore, in the event [the child] would start spending regular time with his father it would be necessary to effectively rebuild their relationship once again rather slowly. [19]
[19] Ibid [15].
I am satisfied that the child recognises that he has a father. I accept the Family Consultant’s description of the lack of psychological relationship between father and son and conclude that the child is not, at this stage, burdened by a sense of loss due to the husband not being involved in his day to day life. The child sounds like a generous and kindly natured young boy. Given that the child is aware of the husband’s circumstances, I am concerned to avoid a situation where the child assumes a sense of responsibility for the husband’s happiness or unhappiness and/or a sense of guilt over the husband’s predicament. Given the potential strength of the relationship between father and son, I consider that the less that the child has to do with the husband the better. Put another way, given the negative and disruptive influence that the husband could bring to bear on the child’s state of mind (if the two of them were to develop a strong relationship), I conclude that it is best not to nurture any psychological relationship between father and son until the child is sufficiently mature and emotionally equipped to deal with all of the consequences which may flow from such a relationship and the husband being placed in a position of emotional influence over him.

The willingness and ability of each parent to facilitate and encourage the children’s relationship with others[20]

[20] Family Law Act 1975 (Cth), s 60CC(3)(c).

I am required to consider the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. It is also necessary for me to assess the extent to which each of the parents has, to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard.[21]
[21] Ibid s 60CC(4).
The independent children’s lawyer submitted that the wife’s facilititation of appropriate communication between the husband and the child has been “exemplary in the extreme”. He referred to the wife having initiated letters and cards being sent to the husband by the child together with photographs of the child. The husband gave evidence that he had received photos of the child from the wife but that they appeared to be duplicates and did not depict any changes in the child. In this regard, the husband was reminded to bring the allegedly unsatisfactory photographs with him to Court on the second day of the hearing. The husband’s evidence was not tested because he did not submit himself to cross-examination and he did not produce any photographs because he refused to attend Court or participate on the second day of the hearing. Copy photographs were tendered in evidence by the wife. I accept her evidence that they were sent to the husband. Two photographs are similar inasmuch as the child is shown in school uniform but the alteration in his appearance is entirely consistent with the images having been taken a year apart.

The husband’s case is that the wife is determined to eliminate him from the child’s life. He says, in effect, that any appearance by the wife of her permitting or facilitating the child to have a relationship with him is disingenuous in the extreme and, implicitly, an attempt to divert the Court’s attention away from her real desire, which is for her partner, Y, to completely replace the husband as the child’s father. The wife denies this is the case. The husband could have cross examined the wife and the Family Consultant on this issue but for the fact that he refused to participate in the hearing after his own evidence in chief was concluded. I have difficulty according much weight to the husband’s views given that he did not, of his own volition, submit to cross-examination.
It is common ground that the wife has facilitated frequent and regular time for the child with his paternal grandparents and continues to do so. The husband alleges that his parents are terrified that the wife will withdraw the child from them and, therefore, they will do or say anything which is supportive of her in this proceeding. I am unable to accept the husband’s case in this respect. The Family Consultant interviewed the paternal grandparents. His report contains many examples of instances described by the paternal grandparents to the Family Consultant as being the basis upon which they have become estranged from the husband. In relation to the paternal grandmother, these include[22]:
43.       [The paternal grandmother] said they last saw their son approximately 16 months ago and he does not want to see them any more. She added that her son is angry with them because of information they provided to police about his ongoing threats towards his former wife. With a certain degree of seriousness, [the paternal grandmother] stated that she is frightened of her son and that prior to him being incarcerated, when they visited the family home, he would scream at her. She stated that she is scared for their family and believes that her son holds a lot of anger towards women.
44.       [The paternal grandmother] explained that she was working as a [nurse] in [the Pacific region] many years ago. She and her husband adopted [the father] at eight weeks of age. He was born premature and his birth mother was only 15 years old. She added that they also adopted a girl somewhat later. [The paternal grandmother] said that her son attended university and at one stage decided he wanted to seek out his birth mother and she made several enquiries until eventually learning that she had been killed in a car accident.
45.       [The paternal grandmother] said that her son always spoke of feeling abandoned, but in her view, had a good life. He attended private school, obtained a …degree from university and worked at the … bank. He later travelled to Japan and spoke Japanese fluently. Upon returning to Australia he went into the [public service] for approximately five years and then studied law.
46.       [The paternal grandmother] said after [the child] was born, [the mother] wanted to start her own business and therefore her son had to work part-time to help look after [the child] and this is when everything seemed to change. She said that the marriage was strained and that her son appeared to spend little time with [the child] and was always on his computer.
47.       [The paternal grandmother] said that her son has been a very angry man whilst in prison and she is somewhat uncertain what the future holds regarding visiting him again. She said that he only writes to his father and gives him instructions about what he wants done.
48.       [The paternal grandmother] was not supportive of [the child] spending time with his father in prison. She said that he is doing extraordinarily well at school, has many friends and his maths and reading is well above his age group. She is concerned that if [the child] would start spending time with his father this may result in a lot of problems for [the child]. In her view, [the child] should decide when he is much older and independent, whether he wishes to seek his father out.
[22]         Family Law Report dated 24 January 2011, [43] – [48]
In relation to the paternal grandfather, the Family Consultant records[23]:
52.      [The paternal grandfather] stated that it was his understanding there was a problem regarding the second visit between [the child] and his father some time ago. He said that apparently his son had [the child] alone for a while and told him that he was in prison because of his mother and blamed her for his predicament. [The paternal grandfather] said therefore [the child] did not want to see his father again and was frightened.
53.      [The paternal grandfather] stated that during the last visit to his son in prison he remembered that [the father] was “mouthing off” what he was going to do to [the mother] and her boyfriend. He recalled that when his son was in the assessment prison that he also made threats, but this was recorded. [The paternal grandfather] said that his son was angry with everyone, but does not seem remorseful and has openly spoken about what he will do when he gets out of prison.
54.      [The paternal grandfather] said that he last spent time with his son in September 2009, when he was still at the … Prison. He believes that his son has now been at the Prison for about four months.
55.      [The paternal grandfather] stated that they have maintained a very good relationship with [the child] and acknowledged the tremendous support from his mother for this continuing. [The paternal grandfather] stated that he does not support [the child] spending time with his father because he is doing so well now and in his view, it would not be fair to [the child] to put him in a position that may negatively affect his life. He acknowledges that his son would like to see [the child], but he is unsure whether [the child] could effectively manage such an arrangement.
[23]         Family Law Report dated 24 January 2011, [52] – [55]
The sentencing comments of the Supreme Court Judge record in more detail the husband’s comments of which his mother complained. In particular:
76       I heard evidence from [Mr S], who was working as a probationary corrections officer with protection prisoners at the Melbourne Assessment Prison between late June and September 2009. On the morning of one of your court appearances, he heard you say about your wife “she’s a fucking bitch, and when I get out of her I will do the job properly”. Although [Mr S] was cross-examined about a number of aspects of this conversation, his account of what occurred was detailed, consistent and credible.
77       Your lack of remorse and ongoing hostility are also supported by recordings of telephone conversations between you and your parents, in the period between November 2008 and June 2009. In those conversations, you made various remarks to the effect that your wife is a ‘bitch’ who is going to have to “deal with” you when you get out of custody, that she will “get hers” when you get out, and that “if she makes [you] bloody angry then she will deal with somebody that she don’t want to meet”. Your counsel suggested that those remarks should not be interpreted as some sort of threat towards your wife, but should be understood as an expression of frustration about your limited access to your son. Whilst some of the remarks may indeed be ambiguous, or prompted by child access issues, they nevertheless demonstrate (at the very least) considerable, ongoing hostility towards your wife.
78       In the conversation on 5 December 2008, following her visit to you in prison the previous week, your mother said she couldn’t cope with “the way you keep talking about, you know, getting revenge and killing [your wife]”. It seems that your mother was taking your threats seriously. And you didn’t deny that you had made such threats, or suggest that your mother had misunderstood what you had previously said to her.
79       You do not seem to have accepted responsibility for what you have done. In saying to your mother, in one of the recorded conversations, that if your wife “had been honest and not such a slut and a mole then [you] wouldn’t be in this situation”, it seems clear that you still blame your wife for your current predicament. [Mr C] reports that you ruminate and obsess about your predicament, without suggesting that you accept any real responsibility for it.[24]
[24] Sentencing comments of … J in the Supreme Court of Victoria on … 2010, [76] – [79].
The husband takes issue with the credibility of the probationary prison officer who gave evidence on the plea. He claims that his mother took his comments out of context. He gave evidence that he has appealed his sentence on the basis that the Supreme Court Judge took that evidence into account against him. The husband’s evidence was untested because he refused to attend Court before me on the day he was to be cross-examined. I do not consider that there is any merit to the husband’s explanation.
I appreciate that the paternal grandparents may be fearful of losing a relationship with their grandson whom, I am satisfied, they love very much. However, there is significant of evidence (which I accept) that their estrangement from the husband is based on their own experiences of him rather than partisanship toward the wife.
The wife’s father, Mr H, facilitated the last visit by [the child] to prison about three and a half months after the husband’s attempted murder of the wife. The maternal grandfather deposed:
3         On one occasion shortly prior to Christmas in 2007 I took [the child] to visit his father, (“the respondent”), who was locate at … Prison at the time.
4         When we entered the common meeting room at [… Prison] the respondent entered the room and sat at our table. The respondent then gave [the child] some chocolate bars and began chatting to [the child]. After a few minutes the respondent asked me if he could take [the child] outside into the garden area so they could have some privacy. I initially hesitated but then reluctantly agreed. I then followed them outside but remained at a short distance within full view (but not within hearing). I was also accompanied by one of the prison guards.
5         After approximately 15 to 20 minutes the respondent came back inside with [the child] and they said their goodbyes.
6         After this visit [the child] and I joined my daughter and her partner who were waiting in the front area of [… Prison] and we all went across the road together to the coffee shop opposite…. [The child] appeared quiet and perplexed after the meeting with his father. At the coffee shop [the child] mentioned that his Daddy was asking him where he was living while they were chatting alone in the garden.[25]
[25] Affidavit of Mr H sworn 2 December 2010.
The wife’s evidence was that she and her partner, Y, had accompanied the child and her father to the prison and took them for a refreshment afterwards. Whilst at the café, the child asked her what their new address was. The child said that the husband wanted to know the child’s new address so that he could write to him. The child reported to the wife that he recalled the street name and suburb but queried the house number. I accept the wife’s evidence in this regard. I accept her description that she “nearly fell off my chair”, that she glared at the maternal grandfather in fury and disbelief and finally, that the incident nearly caused a serious rift between herself and her own father.
The Family Consultant interviewed the maternal grandfather and, after discussing the above visit, wrote:
59. [The maternal grandfather] said he facilitated this visit to help ‘smooth things over’ as he anticipated the possibility of [the father] being released from prison and thought this may have helped [the father] not be so angry upon his release.
60. [The maternal grandfather] said that [the child] does not talk about his father at all when he visits. He said if the court ordered that [the child] spend time with his father he would be prepared to facilitate such, provided all the arrangements were adequately safe. [The maternal grandfather] added that he is unsure how [the child] spending time with his father may impact upon a 10-year-old boy, but he indicated understanding some benefit in a child visiting his father.[26]
[26] Family Report dated 24 January 2011, [59] – [60].
The involvement of the maternal grandfather shows a dimension to the wife’s preparedness to maintain a connection between the child and the father that I am satisfied would not present if the wife’s efforts were insincere or disingenuous.
I accept that the wife has facilitated a close and loving relationship between the child and the paternal grandparents. I find that she will facilitate the maintenance and development of an appropriate connection between the child and the husband during the child’s minority but that, in the circumstances of this case, that connection will not, and ought not, equate to the “close” relationship which exists between a child and a nurturing, responsible and appropriate parent.
At the commencement of the hearing, I advised the parties that the parameters of the dispute about the frequency and type of communication the husband could have with the child were not defined by their respective applications and the recommendations of the Family Consultant but would include a consideration by me of a much more restrictive arrangement of, say, one written communication per annum. In the wife’s evidence, she rejected once yearly communication as inappropriate and confirmed her position that the husband should be able to write to the child four times each year in addition to the significant days (Father’s Day, the child’s birthday and Christmas) and that the child could write as often as he wished. The wife gave evidence of why she considered seven communications a year to be preferable to one and said that after six months or so she would be willing and able to vet the letters without assistance from the independent children’s lawyer. Most importantly, she did not agree that this amount of communication between the child and the husband might stop the child getting on with his life or inhibit the child from forming healthy and nurturing relationships with other people. I find that the wife’s rejection of restricted communication between father and son to be genuine and indicative of a real willingness and ability on her part to consider what is best for the child.
I am satisfied that the wife has done all that she could responsibly do to maintain a link between the child and the husband having regard to the countervailing considerations of keeping the child (and herself) safe from harm.

Practical difficulties and expense associated with contact[27]

[27] Family Law Act 1975 (Cth), s 60CC(3)(e).

There is no practical difficulty of the child spending time with and communicating with the husband in accordance with the husband’s proposals for telephone communication. The countervailing factors relate to the safety of the wife and the need to protect the child from manipulation and emotional abuse by the husband, as described by the Family Consultant and discussed above in the context of s60CC(3)(a).

Capacity of the parents to meet the children’s needs[28]

[28] Ibid s 60CC(3)(f).

In determining what is in the best interests of the child, I need to consider the capacity of the parents or of any other person to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied that the wife is able to, and has, cared and provided for the child to her utmost ability and to a very high standard. She has been an exemplary mother under very difficult circumstances, all of which were directly or indirectly brought about by the husband. She has demonstrated consistently that she will subordinate her own needs to those of the child. I accept the Family Consultant’s prediction that there will be difficult times ahead for the child, but am satisfied that the wife is prepared to seek professional assistance for the child if need be.
The wife has shown remarkable resilience. However, my impression is that there is a fragility about the wife which reflects her overwhelming need to keep the child safe from psychological harm from the husband as well as herself safe from physical harm from, or at the behest of, the husband so that she may continue to parent the child. She is very mindful the husband’s criminal actions could have resulted in the child being left a double orphan and that, even though the husband survived what she considers to have been his genuine attempt at suicide, she is now effectively the child’s only parent.
I am satisfied that her ongoing capacity to provide a high level of care to the child will be compromised if she believes that she is unable to protect the child from psychological harm at the hands of the husband or herself from physical harm. Her concerns are fully supported by the expert assessment of the Family Consultant and by statements which, I accept, the husband made to his parents. Her fears of the husband are genuine and reasonable and, I am satisfied, that the child’s best interests require that her views be respected.
Consistently with the Family Consultant’s assessment and the wife’s views, I find that the husband has no capacity to meet the child’s emotional needs. There is no indication whatsoever that the husband’s attitudes or behaviours will change, through treatment or otherwise, so that he could in the future acquire the capacity he now lacks. The husband’s incarceration certainly precludes him from being able to provide for the child’s physical needs.

The children’s maturity, sex, background and other characteristics[29]

[29] Ibid s 60CC(3)(g).

I have considered the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and his parents.
The child is only 11 years old. He understands more about his family members now than he did when his parents separated and his understanding of them will continue to increase. On the first day of the hearing, I raised with the parties whether the child should have some assistance to come to terms with the end of these proceedings and, in effect, to farewell the husband. This was considerably developed by the independent children’s lawyer on the second day of the final hearing (when the husband failed to participate) and was distilled as a proposal for the child to attend some counselling, similar to grief counselling. The wife has no opposition to this occurring and said that she would pay for it. Mr P, psychologist, was suggested and agreed upon subject to him being reasonably available. I am satisfied that the child will benefit from this type of intervention, immediately as well as in the medium to long term.
The husband expressed the view that the wife lacks the wherewithal to provide for the child’s spiritual needs and, on that basis, sought that the child attend Anglican Sunday School. I am undecided as to whether the husband’s submissions were based on his own genuine long term or recently embraced religious views, or were a gratuitous insult to the wife. In any event, if the husband realistically sought to impose an obligation on the wife to facilitate the child’s attendance at a religious observance each week, he should have continued to participate in the hearing and put that new aspect of his case to the wife in his cross-examination of her.
There was no suggestion that the child’s religious education has been interrupted. I did not receive evidence as to whether the wife is religiously observant. However, I am satisfied that she knows the husband’s viewpoint. I will leave her to act upon it as she wishes.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[30]

The wife has also made financial contributions over and above those of the husband to the conservation and maintenance of the former matrimonial home. The rent obtainable for the former matrimonial home has been insufficient to cover the mortgage instalments and the wife has met the shortfall of about $140 per week. The wife deposed in her affidavit evidence[69] to having “made over $30,000 of contributions to this property since separation from my income. The respondent has made no direct contributions towards the mortgage repayments or any other outgoings with respect to the [former matrimonial home].” In her oral evidence, she clarified that, having regard to the tax deductibility of some of the expenses, her out of pocket contributions have been in the vicinity of $10,000 since separation. Since the wife’s evidence was concluded and on the assumption that the property is still tenanted, the wife will have to continue to meet the shortfall each month, which is estimated to be about $640 per month[70] without regard to relevant tax deductions.
[69] Wife’s affidavit sworn 3 September 2010, [60] – [65].
[70] Wife’s affidavit sworn 3 September 2010, [62].

Conclusion under Section 79(4)(a) to (c)

As a result of their respective contributions, I calculate that the contribution based entitlement of the husband and the wife, at the time of separation, would have favoured the husband. This is based on the husband’s greater direct financial contributions from the $10,000 which he had invested with his parents, his parents’ gift of $10,000 and the facility which the parties had of borrowing a further $10,000 free of interest.
However, post separation the wife’s financial contributions to the major asset, being the home, and as a homemaker and parent have far outstripped the husband’s contributions in those respects. In fact, apart from a proportion of the rental income, which was in any event insufficient to meet his proportion of the outgoings, the husband has not contributed anything. The wife has paid net expenses in excess of $10,000 and been “an exemplary mother” to the child. Furthermore, the wife has made those contributions under the extraordinarily difficult circumstances in the months following the husband’s attack on her and, thereafter, with permanent disabilities which I have recited above. These contributions have spanned nearly four years. Noting that the parties commenced cohabitation in mid-1997, that equates to nearly one third of their relationship which I find to be a significant proportion. These contributions of the wife and the difficulty under which they were made must be recognised in a real and substantial way.
As a result of their respective contributions, I calculate the contribution based entitlement of the husband and the wife, at the time of the trial, at 40 percent to the husband and 60 percent to the wife.

Section 79(4)(d) to (g)

I now turn to the third step in the process of apportioning the assets available for distribution between the parties.

a) The effect of any proposed order upon the earning capacity of either party to the marriage

The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.

b) The matters referred to in sub-section 75(2) so far as they are relevant

a) The age and state of health of each of the parties

The husband is 45 years of age. The wife is 38 years of age. The husband is in good physical health. The wife has permanent injuries as described in another context at paragraph 133 of these reasons which are life long.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I have no reason to believe that the wife will not be able to be self employed for the foreseeable future. The husband is in prison for some years to come. His release date is … 2019 at the earliest or … 2022 pursuant to his head sentence.
c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
All of the responsibility for the day to day and long term care of the child will in future be borne by the wife. It is a significant responsibility which must be recognised in a real and significant way.
d)Commitments of each of the parties that are necessary to enable the parties to support:
himself or herself;
a child or another person that the party has a duty to maintain;
Whilst the wife has repartnered, she does not assert that she has to support her partner. Therefore, neither of the parties has commitments other than those necessary to support himself or herself and the child.
e)The responsibilities of either party to support any other person;
Neither party has a responsibility to support any one other than each other (to the extent such that maintenance may be required) and their child.
f)The eligibility of either party for a pension, allowance or benefit under
any law of the Commonwealth, of a State or Territory or of any other country; or
any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The parties each have a comparatively modest amount of superannuation. The wife will be able to increase her superannuation over the coming years but the husband will not be in a position to make further contributions from income until he leaves prison. I do not regard that this factor is particularly significant in this case.
g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There was nothing in the evidence of the wife to indicate that her current standard of living is inadequate. It is inappropriate to gauge the husband’s standard of living against that which the family enjoyed prior to separation. The husband says that he wants to buy the newspaper each day together with cigarettes, toiletries and matches, which he can afford based on his prison income and gifts from his family.
h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
This is not a case where either party makes an application in respect of spousal maintenance.
l)The need to protect a party who wishes to continue that party’s role as a parent;
Very fortunately, the wife appears to have been able to coordinate her professional responsibilities around her responsibilities to care for the child.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
The wife’s unchallenged evidence is that her partner is self supporting.
na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The husband pays no child support and I do not envisage that will change. This means that there is no amelioration of the wife’s responsibilities for the child’s care.
o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
I have already mentioned the criminal injuries compensation monies which the wife has had, and spent. I am not satisfied that it would be appropriate to make any allowance in relation to these funds. There is no suggestion that the wife expended them in circumstances where they should be added back into the pool of divisible assets.
It was open to the wife to incorporate a personal injuries claim against the husband in this proceeding. She did not do so at this stage. Accordingly, save as aforesaid, I make no adjustment in relation to the husband’s criminal actions. The husband has been punished for his actions. There is no tortious or punitive aspect to this alteration of property interests.
The wife proposes to sell the former matrimonial home but did not adduce evidence of the costs of sale. Therefore I am unable to take them into account in relation to the value of the home but will structure the orders so that there is a proportional division.
Both parties have legal costs. The husband owes approximately $20,000 to Victoria Legal Aid from his criminal legal proceedings. On 20 December 2007 Victoria Legal Aid (“VLA”) lodged a caveat for registration against the certificate of title to the former matrimonial home in support of a charge given by the husband. In the course of these proceedings, the wife has received written confirmation from VLA that it will not seek to maintain its interest under the charge in the event that the husband is not entitled to any moneys as a result of these proceedings.

c) Any other order made under this Act affecting a party to the marriage or a child of the marriage

There are no other orders made under the Act which affect a party or the child which needs to be taken into account, save for the parenting orders which will be made in this matter and which will result in the child continuing to live with the wife, a situation that has come about with the consent of each of the parties.

d) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

These provisions have been considered in relation to section 75(2)(na) above.

Conclusions on adjustive factors under s75(2)

Taking all these matters into account, and in particular the fact that the wife will have the sole care of the child, it is my view that it is appropriate that a very substantial further adjustment must be made in favour of the wife. This is notwithstanding that on my assessment of contributions, the entitlement of the wife is already greater than that of the husband. It is my view, that a just and equitable result requires the wife to receive by way of adjustment in her favour a further 30 percent of the divisible assets. That increases her entitlement to 90 percent of the assets and reduces the husband’s entitlement to 10 percent.

Fourth step: are the orders just and equitable?

My assessment of contributions and adjustive factors and matters otherwise to be taken into account result in a final alteration of property interests, expressed proportionately, at 10 percent to the husband and 90 percent to the wife.
I have no evidence of the costs of sale of the home. However, based on the pool of assets divisible between the parties having a notional net worth of $461,996, the husband’s entitlement would in real terms approximate $46,200 and the wife’s entitlement would approximate $415,796.
The husband already has his superannuation interest of $21,209 and the car at $1,000, being a total of $22,209. He did not seek a superannuation split in relation to his own superannuation interest. This is likely to be because he envisaged his entitlement being in the vicinity of 40 percent of the asset pool (which has not eventuated). However, if at this stage in the process I considered that it would be just and equitable to require a splitting order so as to have both parties take an equivalent proportion of superannuation interests as part of his/her overall entitlement, I would adjourn the proceedings and direct that the husband’s superannuation trustee be provided with notice.
If the husband receives his entitlement of approximately $46,200 by way of his superannuation interest and the add back in relation to his car, his entitlement will be met as to 48 percent ($22,209) by way of superannuation or illiquid assets and 52 percent ($24,024) in cash. Whereas the wife will receive her entitlement of approximately $415,796 as to only about 10 percent (or $43,238) in illiquid assets and 90 percent ($372,558) in liquid assets. Put another way, the husband takes nearly half his entitlement in illiquid assets whereas the wife takes only 10 percent of her entitlement in illiquid assets. I have considered whether, in real terms, this is a just and equitable outcome and I conclude that it is. The wife has the ongoing responsibility for the care of the child with an attendant responsibility to rehouse him and herself. To require her to take more by way of illiquid assets than she already holds will, I conclude, have some negative impact on her ability to take up equity in any new residential property. On the other hand, the husband will be in prison for at least another eight years and has less need of capital during that time, particularly in relation to the provision of housing for himself. Even when he leaves gaol, on current evidence, he will only have himself to house and to support.
The wife proposes to sell the home in approximately September this year. The husband would be required to execute documents to complete the sale. At the trial (or at least the part in which he participated) the husband did not seek to have any input into the terms of sale. The home is by far the parties’ major asset. I am satisfied that the wife is well motivated to achieve the best price for the property. It is impractical in my view for the wife to be required to have dealings with the husband over the execution of documents for the sale of the property and like matters. Accordingly, I will place responsibility for the conduct of the sale solely with the wife and direct that a registrar of this Court sign any documents on behalf of the husband. The wife should however, keep the husband advised of the progress of the sale, by prepaid post.
Standing back and considering the operation of the orders, I am satisfied that the financial outcome is just and equitable.

Conclusions

For the above reasons I am satisfied that the parenting and property orders set out at the commencement of these reasons are appropriate and I make orders in those terms.

Costs

The wife seeks that the husband pay her costs. The wife’s evidence in that regard is contained in her own affidavit sworn 3 September 2010 and the first affidavit of her solicitor, Tamara Elisa Kay, sworn 5 November 2010. The other affidavit sworn by Ms Kay on 5 November is also relevant as an example of costs to which the wife has been put unnecessarily. Whilst the husband gave evidence that he doubted that his incarceration cost the wife a further $18,652 in costs, the husband did not make himself available for cross-examination, nor did he participate in the trial to challenge that evidence by cross-examination of the wife and Ms Kay. Whilst there are estimates of some components of the costs, such as the $18,652, there was no real attempt to quantify the costs.
Section 117 contains the general rule that each party to proceedings under the Act shall bear his or her own costs. The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[71] However, the Court retains a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so.
[71] In the Marriage of Kohn (1977) 30 FLR 175, 177.
In considering whether to make an order the Court must have regard to the matters set out in s 117(2A). The weight to be attached to any of the considerations in this section is wholly discretionary. However, while no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[72] As Kay J observed in Brown & Brown:
In many cases there will be an outstanding feature … that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations.[73]
[72] LAC and TRF and LKL [2005] FamCA 158, [41].
[73] (1998) FLC 92-822, 85,347.
It appears to me that this application raises the matters in paragraphs 117(2A)(a), (c), (e) and (g). They are:
(a) the financial circumstances of each of the parties to the proceedings;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(g) such other matters as the court considers relevant.
Neither party can afford legal costs. I have regard to the financial circumstances of the parties taking into account the operation of the final property orders I have pronounced. There is no evidence that husband has incurred any significant legal costs for these proceedings. On the other hand, the wife has been put to considerable expense in preparing her case, obtaining valuations and expert evidence about her physical and emotional health in the context of preparing the matter to proceed as an unopposed matter, then as a defended matter and ultimately as an unopposed matter again. Most of the first day was spent getting oral evidence from the husband, because he did not swear an affidavit, which is of limited use as he did not participate again to be cross-examined or to test any evidence adduced by the wife.
This is not a case where one party was wholly unsuccessful. However, the husband was largely unsuccessful in relation to parenting orders and the financial result fell well short of that for which he contended. In particular, he sought 40 percent and received 10 percent, whereas the wife sought 95 percent and received 90 percent.
As indicated at paragraphs [40] to [47] above, I am satisfied that the wife has been put to extra costs by virtue of the husband’s conduct in either not agreeing readily to something which was sensible, such as applying the rental income from the home to the mortgage affecting the home or by the amount of adjournments in this court whilst the husband finalised his plea to the manner in which he conducted the proceedings including failing to file documents. I do not accept the husband’s assertions that he did not have access to writing materials in prison and I accept the evidence of the wife’s solicitor that documents which were required to be served on him were duly served on him through the prison authorities.
I am not critical of the husband for seeking an adjudication of the competing applications from the Court. However, the efficient administration of justice, particularly in family law matters, relies on the parties concerned not starting something that they are not prepared to conclude. The end result was that the husband failed to appear and participate in the trial to the conclusion, but put the wife to very considerable costs in the interim. Not all of those costs would been incurred if the husband’s inclination to participate had not waxed and waned.
In all of the circumstances, I am satisfied that it is appropriate for the husband to be responsible for 50 percent of the wife’s costs from the wife’s application to receive all of the rental income received for the former matrimonial home. That application was concluded on 11 March 2009 with orders consistent with the wife’s application and inconsistent with the husband’s position that he be entitled to one half of the rent. That means that the wife gets her costs of and incidental to that application which was filed, as an amended application in a case, on 3 March 2009. I am unable to be more precise than that because I do not know when the wife’s solicitors commenced preparation of the amended application.

Costs ought to be calculated on a party/party basis.
I do not intend that the husband have access to any of his entitlement to a final alteration of property interests pending quantification of his liability to pay 50 percent of the wife’s costs. The balance of funds due to the husband from the proceeds of sale pursuant to the final property orders are to be held in trust for the husband, on an interest bearing deposit, by the solicitors for the wife pending the outcome of the assessment process and calculation of the husband’s liability for 50 percent of the wife’s costs pursuant to this order.

I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 July 2011.

Associate:

Date: 1 July 2011

[2011] FamCA 622

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Equity & Trusts

Legal Concepts

Damages

Remedies

Causation

Costs

Restitution

Fiduciary Duty