Corrichio & Corrochio

FAMILY COURT OF AUSTRALIA

CORROCHIO & CORROCHIO

[2008] FamCA 220

FAMILY LAW – CHILDREN – PARENTING – Significant and Substantial time – Best interests of child of the marriage found to be best served by the child residing with wife and spending significant and substantial time with husband – Sections 60CA, 60CC, 61C and 65DAA Family Law Act1975 (Cth) considered – Significant and substantial are cumulative requirements – Eddington & Eddington (No 2) (2007) FLC 93-349 cited – Most reasonably practicable outcome that child reside with wife and spend time with husband on alternate weekends and two weeknights during the other week.

FAMILY LAW – CHILDREN – RELOCATION APPLICATION – Wife’s application to relocate with child found not to be in child’s best interests – AMS & AIF (1999) 199 CLR 160 cited.

FAMILY LAW – PROPERTY – SUPERANNUATION – In the circumstances superannuation treated as part of the asset pool rather than as separate pool – Coghlan & Coghlan (2005) FLC 93-220 cited.

FAMILY LAW – PROPERTY – ADD-BACKS – Notional add-backs not conceded on behalf of wife not added back. Wife had not recklessly nor wantonly utilized the funds – Husband had greater financial resources during the post-separation period – Husband and his legal advisors had not previously raised the issue although husband conceded he was aware of the withdrawal.

FAMILY LAW – PROPERTY – CONTRIBUTIONS – Contributions not controversial – Held to be 60 per cent to the wife and 40 per cent to the husband.

FAMILY LAW – PROPERTY – SECTION 75(2) FACTORS – Section 75(2) factors found to favour wife by 15 per cent – Wife to have primary responsibility for the care of the young child –Wife has limited future employment capacity – Husband’s cohabitation provides him with not insignificant financial resources.

C & C (2005) FLC 93-220
Eddington & Eddington (No 2) (2007) FLC 93-349
AMS & AIF (1999) 199 CLR 160

APPLICANT:

MR CORROCHIO

RESPONDENT:

MRS CORROCHIO

FILE NUMBER:

PAC

3394

2007

DATE DELIVERED:

7 April 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

COLEMAN J

HEARING DATE:

3 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BROWN

SOLICITOR FOR THE APPLICANT:

Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

MR GIVNEY

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That … (“the husband”) and … (“the wife”) have equal parental responsibility for the child … (“the child”) born … May 2002.
That the child spend time with the husband:-
(a)       From after school Friday to the commencement of school Monday each alternate weekend;
(b)       From after school Wednesday to the commencement of school Friday in each other alternate week; and
(c)       For one-half of all school holiday periods.
(d)       For the weekend upon which Fathers Day falls, from after school Friday to the commencement of school Monday.
(e)       Any other time as agreed between the parties.
That, in the event of the weekend of Mothers Day falling upon a weekend during which the child would otherwise spend time with the husband, the child spend time with the wife from after school Friday to the commencement of school Monday.
That the child otherwise spend time with the wife.
That the child’s usual place of residence remain within a radius of 20 kilometres of the M Town Hall.
That the parties do henceforth hold as tenants in common in shares of 78 per cent to the wife and 22 per cent to the husband the whole of their right, title and interest in the property known as and situate at … (“[W Property]”).
That until 31 December 2008, or the wife acquiring the husband’s interest in W property pursuant to these orders, the wife be entitled to occupy W property to the exclusion of the husband provided that during the period of her occupancy of the property the wife shall be responsible for the payment of mortgage instalments, rates, taxes and other outgoings on the said property and shall maintain insurance cover over the property in the names of herself and the husband in shares reflecting their beneficial interests in the property.
That, on or before 31 December 2008, or such further or other time as the parties shall agree in writing, the wife be entitled to acquire the husband’s interest in W property by tendering to him a sum calculated as 22 per cent of the market value of W property as agreed between the parties or determined by a registered valuer nominated by them for that purpose, less the outstanding balance of the mortgage secured over W property, whereupon the husband shall deliver up to the wife a duly executed memorandum of transfer in registrable form of his interest in W property.
That, in the event of the wife exercising the option to purchase the husband’s interest in W property created by these orders, upon the completion of such option to purchase, the wife shall indemnify the husband and forever keep him indemnified with respect to the mortgage over W property and all outgoings and other liabilities relating to the said premises.
That, in the event that the wife does not exercise the option created by these orders in accordance with these orders, the parties shall do all acts and things and execute all documents necessary to cause W property to be sold at and for a price agreed or, failing agreement, determined by a registered valuer nominated by the parties for that purpose, and shall cause the proceeds of sale, after payment of the outstanding mortgage balance, agent’s commission and selling expenses to be divided between the parties in accordance with their beneficial interests in the property.
That, in the absence of any prior contrary agreement in writing, the sale of W property pursuant to these orders is to be completed by 31 December 2008.
That the parties otherwise retain or receive all property real and personal, including superannuation interests, possessed by them and be liable for any debts owed by them.
That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC394/2007

MR CORROCHIO

Applicant

And

MRS CORROCHIO

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court relate to the parenting of the one child of the marriage, who was born in May 2002 and is now aged 5 years. The husband seeks that the child spends one half of her time with him and the other half of her time with her mother (“the wife”) on a week-about alternating basis. Integral to the husband’s claim is that the wife and the child would continue to reside within the vicinity of W, a suburb of Sydney.
The wife seeks that the child primarily reside with her on the Central Coast and spend two of each three weekends during school term with the husband, such periods commencing after school on Friday and concluding with the commencement of school on Monday.
In the alternative, if the Court determines that the child’s best interests would be served by her continuing to see both parents on a more regular and substantial basis than the wife proposes, thereby necessitating the wife continuing to reside in the vicinity of W, the wife would resign herself to such fate rather than relinquish primary care of the child. There are thus three possible outcomes of the parenting dispute. Unsurprisingly, no other possible outcome of the parenting dispute is suggested and the evidence does not raise the prospect of any additional options.
So far as the property settlement proceedings are concerned, as will be seen, a limited number of issues impact upon the Court’s exercise of discretion pursuant to Part VIII Family Law Act 1975 (Cth) (“the Act”). Counsel for the parties agree that the contribution based entitlement of parties to the date of their separation should favour the wife by 60 per cent to the husband’s 40 per cent. On behalf of the wife a 15 per cent adjustment to her contribution based entitlement is sought pursuant to s 75(2) whilst on behalf of the husband a 10 per cent adjustment pursuant to s 75(2) is conceded.
The ambit of the dispute is not as simple as the narrative to this point might imply. The post separation period has yet to be referred to. Inferentially at least, the husband’s case is that the wife be awarded 70 per cent of the asset pool as asserted on his behalf. At least inferentially, the wife’s case is that she be awarded 75 per cent of the asset pool as was asserted on her behalf.
On behalf of the wife some $62 000 of notional add-backs has been conceded. On behalf of the husband notional add-backs of $145 000 have been asserted. Whilst clearly the sum of $62 000 will in the circumstances be added back, the exercise of discretion in relation to the further sum of $80 000 may result in further add-backs or, in their absence, the contribution based entitlements of the parties being impacted by the receipt of the monies which are not added back.
Although ultimately perhaps a minor matter, Counsel for the parties have approached the husband’s superannuation interest somewhat differently, Counsel for the husband inviting the Court to include the husband’s superannuation interests at its current value as part of the asset pool, Counsel for the wife urging the Court to consider the superannuation interest in a “separate pool”. As the majority in C & C (2005) FLC 93-220 make clear, either approach is potentially open to the Court and neither approach precludes the Court from reaching a just and equitable determination of the entitlements of the parties pursuant to Part VIII, or guarantees the attainment of such an outcome.

Credit

The issue of credit does not assume significance in the proceedings which the court is obliged to determine. The husband impressed as a frank and forthright witness whose evidence can be accepted as essentially reliable. As will be seen, whilst that operates to the husband’s credit in a number of areas, that same candour might be thought to operate to his detriment in relation to the disputed add-backs asserted on his behalf. The husband’s present partner Mrs B impressed as an honest and reliable witness.
The wife impressed as an honest witness who gave evidence in a frank and candid manner under what were demonstrably and clearly having substantial difficulties in regard to the medical evidence relied upon in her case. To the extent that the wife was unable to recall events with accuracy or particularity, the Court concludes that to have been more referrable to matters identified by her specialist medical practitioner Dr R in his evidence than to any mendacity on her part. As will be seen when the wife’s capacity for future employment is considered within the context of s 75(2), some care will need to be exercised by the Court in the drawing of inferences with respect to that topic in reliance upon the wife’s demeanour during cross-examination.
The wife’s partner Mr V gave evidence and was cross-examined in relation to a number of matters which impact upon his credibility. With respect to him, whilst it is perhaps understandable that he would not wish to do so, Mr V did reveal an unfortunate unwillingness to engage with Counsel’s questions in relation to his criminal antecedents. As Counsel for the husband suggested, it is significant that Mr V was categorical about what he had not done or said in a number of instances, but when invited during cross-examination to offer his version of those events was substantially unable to do so. Ultimately, the diminution of Mr V’s credibility assumes only peripheral significance in the determination of the proceedings before the Court. In a very minor way, Mr V’s conceded negativity towards the husband will require some consideration in the context of the parenting dispute.
For the foregoing brief reasons, the outcome of neither dispute turns decisively or event significantly on the Court’s conclusions with respect to credibility.

Material Facts

The husband was born in May 1963 and the wife was born in November 1968. Accordingly the parties are aged 44 and 39 years respectively.
The parties commenced their relationship in July 1991 and began cohabiting in January 1992. The parties were married in November 1995.
Neither of the parties owned substantial assets at the commencement of their cohabitation. In 1996 they bought a property at W for $170 000, financed by a mortgage to MLC in the sum of $149 000 and a personal loan.
Both parties were engaged in paid employment from the commencement of their cohabitation, until the end of 1998. Since 1999 the husband has remained in employment however the wife has not returned to the workforce.
In 1999 the wife suffered a significant illness with ongoing ramifications. For a period of approximately four months she was hospitalised. The wife has been able to access her superannuation fund as a result of her health condition, and received from it the sum of $227 508.05 in June 2001. These monies were applied to debts owed by the parties, the purchase of a motor vehicle and renovations to the W property.
In May 2002 the child of the parties, a daughter, was born.
In October 2002 the husband commenced a relationship with a Mrs B with whom he has resided since November 2004.
The parties separated in February 2003, attempted to reconcile in June 2004 and finally separated in November 2004.
Since separation the child has lived with the wife and spent time with the husband on a regular basis, which was initially each Saturday. In May 2006 the parties agreed on interim parenting arrangements the effect of which is that the child spends alternate weekends and two nights in the alternate week and half of school holidays with the husband. The husband has paid child support since May 2006.
The wife commenced a relationship with a Mr V in mid-2006.
In 2005 the wife drew down $95 000 from HSBC mortgage, redepositing two sums of $15 000, thus leaving net drawings of $65 000 which she utilised for purposes which are disputed. The husband drew down $10 000 in February 2006.
The husband paid the mortgage repayments until April 2006 at which time the wife commenced to do so, becoming solely responsible for so doing in January 2007. The husband ceased to contribute to the upkeep of the W property in May 2005.

Parenting proceedings

Competing proposals

The husband’s proposal that the child spend equal time with her parents on a week-about alternating basis is predicated on both the husband and his partner Mrs B continuing in their respective full time employments, and continuing to live in the area in which they currently live in rented accommodation. The child would be the third usual member of the household of the husband and his partner.
Nothing to which the Court has been referred suggests that the child’s needs would in any way be neglected or adversely impacted by spending time with the husband on a week-about basis. The husband “officially” works from 8.30am to 5.00pm although he has some flexibility in that regard, provided that he completes the 50 or more hours a week of work which are required to discharge his employment obligations. The husband’s partner leaves for work between 6.15am and 6.45am.
In the post separation period, which now approximates almost five years, subject to the resumption of cohabitation for about five months in 2004, the wife has overwhelmingly been the child’s primary carer although the husband has had significant contact with the child throughout that period.
The husband first sought to challenge the wife’s ongoing primary care of the child on 19 February 2007. There is little room for doubt that the husband’s position changed at that time upon his learning earlier that month at a “round table conference” that the wife proposed relocating the residence of herself and the child to the Central Coast.
The husband’s evidence is that the travel associated with implementation of the arrangements proposed by the wife would be burdensome on him and his partner and that, for reasons which he detailed, relocating the residence of himself and his partner to the Central Coast is not a realistic option. During the course of his evidence, the husband’s “fallback” position in relation to the child’s care became that, if the child were to continue to reside in the W area, but not live with him on an alternating week-about basis, he would seek that the child live with him and his partner each alternate weekend from after school on a Friday to commencement of school on a Monday and overnight for two consecutive nights during the “off week”, a total of five nights per fortnight.
The wife’s proposal is that she would relocate her residence to the Central Coast where she would reside with Mr V with whom she has been in a relationship since mid-2006. Mr V rents premises at the Central Coast where he is in employment, commencing work very early and often finishing about 2pm. The wife’s proposal is that she would continue to provide full time care for the child, and foster embryonic social and support networks which currently exist on the Central Coast, that the child could attend a suitable Catholic School on the Central Coast and that the wife would facilitate the changeovers necessary to implement her proposal with respect to the time the child would spend with the husband. The evidence suggests, at least inferentially, that the wife would be significantly financially supported by her partner were she to relocate her residence to the Central coast. The wife’s partner gave evidence, which the Court accepts, that a move to Sydney is not a financially viable option for him.
As is not uncommon in parenting disputes, in this case there exist two adequate, capable and loving households in which the child could reside, whether one of those (the wife’s) was physically located at W or on the Central Coast. As is perhaps less uncommon in parenting disputes, the Court has, thankfully, been spared the excruciating and pointless task of considering the material advantages and disadvantages of the competing proposals, it being sensibly conceded by learned Counsel for both parties that there were, ultimately, a very small number of important issues which impacted on the “balance” between the wife’s entitlement to freedom of movement within the state of New South Wales, and to her consequential ability to get on with her life on the one hand, and the impact which such a move would have on the relationship between the child and the husband on the other. As will be seen, for reasons which it will detail in due course, the Court does not consider a week-about alternate care arrangement to be in the child’s best interests. That however does not render deciding between two remaining options any less difficult.
On the evidence before the Court, it is both unrealistic and unfair to expect the husband and his partner to relocate to the Central Coast or to expect the wife’s partner to relocate from the Central Coast. Although minor compared with the distances involved in many disputes which arise in this country, the “tyranny of distance” cannot be readily resolved in this case by one of the parties to the dispute moving to where the other party lives, or wishes to live, without the potential for major and unjustified social and economic upheaval.

The Family Report

The Court has the benefit of an insightful and thorough Family Report prepared by a highly qualified and experienced child psychologist. The Court has also, through brief but relevant cross-examination of the author of the report, the considerable benefit of the report writer’s intuition with respect to the welfare of the child. The report was prepared prior to the Court hearing evidence from the parties. The effect of the evidence the Court has heard is to substantially underpin the contents of the Family Report. Although nothing of substance ultimately turns on it, the author of the Family Report had not seen Dr R’s report with respect to the wife’s health prior to writing the report.

In his report, under the heading “Evaluation”, the author of the Family Report recorded his conclusion, which is uncontroversial for present purposes, that “[the child] loves the adults with whom she interacted”. Those adults, it is clear from earlier passages in the report, include the parents, their new partners and other members of the husband’s extended family.
What might be thought to be veiled criticisms of the wife were then detailed by the author of the Family Report. He suggested that the child “needs her mother and her father” and that relocation from W to the Central Coast would mean that the child “will miss her father as well as the frequency by which she interacts with him”. The author of the report suggested that “in spite of [the wife’s] love for [the child] as well as [the child’s] love for [her], [the wife] lacks the ability to recognise, let alone fulfil, all of [the child’s] needs”.
The report writer recommended that the child live with the wife “in close proximity” to where the husband lives and that the Court “substantially increase the amount of time” which the child spends with the husband.
During brief cross-examination, the author of the Family Report very properly declined to specify the “more time” that he felt that the child needed to spend with the husband, for reasons which he detailed, reiterating that the child needs to spend more time with the husband than she currently does, and that the child would benefit from more time overnight with the husband. The Court counsellor said that the time spent with the husband could be “up to equal time”. Understandably, Counsel for the wife relied upon the addition to that answer in which the author of the report said that he “wants the child to be raised by her mother” or words to that effect.
It is reasonably apparent from the evidence of the author of the Family Report that a particularly strong bond exists between the child and the husband and that relocating the child’s primary residence to the Central Coast would be likely to compromise the child’s emotional wellbeing.
Significantly, the author of the Family Report, at least inferentially in the final sentence of his report, suggested that for the child’s needs to be fully met, the complimentary input of the husband was required. Also significantly, the author of the Family Report remained firm in his conviction that the child should be “raised” by the wife rather than that task being shared equally by the parents.
As noted at the outset, no finding of fact which the Court will or could make in reliance upon the evidence before it provides a rational basis for rejecting the recommendations advanced by the author of the Family Report. The qualifications of the author of the Family Report to provide expert opinion evidence was, sensibly, not challenged. In the Court’s view the Family Report, and its recommendations, are entitled to substantial weight when the relevant provisions of Part VII of the Act are considered.
The law governing the proceedings is codified in Part VII of the Act and it is by reference to the relevant provisions of that Part that the case must be decided. It is convenient to refer to the objectives of the legislation and the terms in which the Parliament has seen fit to enact such objectives.
Section 60B(1) of the Act provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act, headed “How a Court determines what is in a child’s best interests” provides as follows:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Primary considerations: s 60CC(2)

The child the subject of this dispute would benefit from having a meaningful relationship with both of her parents. The evidence does not reveal any need “to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

Additional considerations: ss 60CC(3), (4) & (4A)

The child has not expressed views or wishes, and even if she did, her level of maturity and understanding would not result in any significant weight being attached to any such views or wishes.
The nature of the relationship of the child with each parent reveals both a qualitative and quantitative difference. It ought not be forgotten that the child has primarily lived with the wife for the overwhelming bulk of her short life to date. Whilst the husband has at all times had a meaningful involvement in the child’s life, both in terms of the nature of the relationship between the child and each of her parents and its duration are there differences which reality demands be acknowledged. Those factors do not preclude the child spending equal time with both parents being in her best interests should other factors impact the Court to conclude that to be the case, but rather serve to highlight the quantum shift which such a regime would represent relative to the history of the child’s upbringing to date.
The relationship of the child with the new partners of each of the parents is satisfactory but, with no disrespect to the new partners, does not materially advance the claim of either party to the dispute. Whilst the relationship the child has with other members of the husband’s family, as reported by the author of the Family Report, supports the husband’s desire for the child to continue to reside in the W area, that factor does not advance his claim that the child spend equal time with each parent.
The likely effect of any changes in the child’s circumstances is relevant in a number of respects. The terms of the relevant legislative provision (s 60CC(3)(d)) are not insignificant in this context. The focus of the provision is the child. The likely effects of changes in the child’s circumstances in this case include, on the one hand being able to spend more time with the wife’s partner, with whom the child has a good relationship, whilst on the other spending less time, or time less frequently, with the husband to whom she is closely bonded, his partner with whom she has a good relationship, and members of his extended family who the unchallenged evidence of the Family Report suggests to be important. Those are the probable impacts of changes in circumstances on the child, and they are the matters to which the Court is obliged by the legislative provisions governing the dispute to have regard.
The effect on others of a change in circumstances, or the Court making orders which effectively preclude a change in circumstances, though significant in human terms, are not matters which can impact upon the determination of the present dispute. So far as the husband is concerned, his life, and that of his partner, would be significantly disadvantaged if the child’s usual place of residence is changed to the Central Coast.
On the wife’s part, the inability to change the child’s usual place of residence to the Central Coast will undoubtedly cause her some unhappiness, or at least the curtailment of the pursuit of residence and, as she genuinely believes, a more satisfying and secure financial existence. Whilst these matters may assume relevance in the determination of the dispute by reference to other provisions of the Act, they cannot properly arise for consideration in the present context.
The impact of the child’s right to maintain personal relations and direct contact with both parents on a regular basis by virtue of practical difficulties associated with the competing proposals overlap somewhat with the matter last discussed. Objectively, if the child relocates to the Central Coast, only with some practical difficulty, and even then on a reduced basis in terms of frequency, will the child maintain her personal relations and direct contact with the husband on a regular basis. Conversely, if the wife is not permitted to relocate the child’s usual place of residence to the Central Coast, the time the child spends with the wife’s partner will continue to be curtailed.
Quite apart from the qualitative difference between the relationship of the child with the husband on the one hand and the relationship of the child with the wife’s partner on the other, the Legislature, no doubt advisedly, enacted s 60CC(3)(e) in the terms in which it did. Unlike the previous provision of the Act to which reference has been made, s 60CC(3)(e) is limited to the child’s relations with “parents” and does not extend to other persons. A proper application of this provision obliges the Court, on the evidence before it, to conclude this factor to favour the husband. This is particularly so as no expanded definition of “parents” is to be found in the Act.
So far as the capacity of the parents and other persons to provide for the child’s needs, including emotional and in intellectual needs, is concerned, the evidence of the author of the Family Report to which reference has been earlier made with respect to the wife assumes relevance. Having seen and heard the parties give evidence, and reflected on the evidence of the author and his report, it emerges clearly that both parents have the appropriate “capacity” in the sense envisaged by this provision. What also emerges clearly is that the complimentary capacities of the parties have to date produced a very satisfactory and enduring parenting regime for the child. With all due respect to the wife, it cannot be assumed on the evidence, particularly in the light of the expert opinion evidence contained in the Family Report, that reducing the husband’s role in the child’s life might not leave a capacity deficit of the kind to which the author of the Family Report alluded.
The Court does not conclude on the evidence that the husband has a greater capacity than the wife to parent the child, but does conclude on balance that the wife has a greater demonstrated capacity than the husband in that regard. The most significant point is the matter relates to the benefit for the child of residing in a situation where the husband’s capacity can compliment that of the wife to the child’s advantage.
No indigenous, ethnic or other issues within the ambit of ss 60CC(3)(g) or 60CC(3)(h) arise on the evidence in this case.
The attitudes of each of the parties to the responsibilities of parenthood have, on balance, been entirely satisfactory, and have been so over a very long period (see s 60CC(3)(i) of the Act).
As observed earlier, no matters falling within the ambit of ss 60CC(3)(j) or (k) are relevant.
So far as s 60CC(3)(l) is concerned, it could not realistically be suggested that any of the available options in this case is more likely to produce litigation or avoid it than is any other. If the wife relocates the child’s primary residence to the Central Coast, there are significant unknowns in terms of how well future arrangements for the child’s care will evolve. Conversely, if the wife is effectively restrained from moving to the place where she wants to live, and from living with the man with whom she wishes to live, proceedings could occur in the future. Whilst this provision no doubt expresses an admirable sentiment, it is of little practical utility in a case such as the present, and certainly cannot assume significance in the determination of the dispute.
Although, viewed through the prism of perfection, each of the parties has probably fallen short of the literal requirements of s 60CC(4) of the Act, the determination of their dispute could not fairly or properly be influenced in any way by reference to such matters. The evidence reveals that at all material times each parent has discharged the various obligations referred to in this subsection in an acceptable and adequate way. That conclusion appears, to the extent that it may require it, to derive support from what appears to be the intent of the s 60CC(4A).

Shared Parental Responsibility and Time Spent with each Parent

As noted earlier, the views of the child do not assume any significance in the present dispute. Nor do issues relating to the risk of family violence. It is then necessary to consider shared parental responsibility and the implications of it. There is no issue that in this case the parents should both have parental responsibility for the child pursuant to s 61C of the Act. “Parental responsibility” has the meaning which s 61B of the Act gives that term.
It follows from the undisputed reality that the parties will both have parental responsibility for their child that the presumption of equal shared parental responsibility is not rebutted. The parties will accordingly have equal shared parental responsibility for the child, either on the basis that the parties consent to that outcome, or on the basis that the presumption created by s 61D(a) of the Act has not been rebutted.
It is then necessary to consider whether the child spending equal time with both parents would be in her best interests. The preservation of the presumption created by s 61D(a) invokes s 65DAA of the Act which requires the Court to consider whether equal time spent with each parent would be in the child’s best interests. In this case, the Court does not consider that the child spending equal time with each of the parents would be in the child’s best interests. The reasons for that are essentially that the Court expert, whose opinion evidence the Court accepts, does not support such a regime. The husband’s hours of work, and those of his present partner, when compared with the full time availability of the wife are a further factor militating against the child spending equal time with each parent.
The wife’s longevity, competence and, at least until February 2007, the husband’s acquiescence in the wife’s primary care of the child militates against now moving to equal time sharing. Put simply, other than by presuming equal time being spent with each parent was in the child’s best interest, which the Court does not perceive the legislation to provide, the evidence provides no rational basis for concluding that such a regime would be in the child’s best interests.
The terms of s 65DAA are significant in that they oblige the Court to “consider” each of the matters therein referred to. Unlike s 61D(a) of the Act, s 65DAA does not create a presumption. It is clear that, albeit the exercise of discretion is driven by a consideration of certain matters, a determination pursuant to s 65DAA remains discretionary. Essentially for the reasons which have been referred to, the Court does not “consider” that the child spending equal time with each of the parents would be in the child’s best interests. Although in the circumstances it is unnecessary to express a concluded view in that regard, the Court has real doubts as to the practicality of such a regime in any event.

It is then necessary to consider the provisions of s 65DAA(2). Having concluded that the parties should have equal shared parental responsibility for the child, and that the Court will not be making an order that the child spend equal time with each of the parents, the Court must consider whether the child spending “substantial and significant” time with each of the parents would be in the child’s best interests, and the practicality of so doing. The Court perceives there to be no legislative impediment in considering these two factors together. In the circumstances of this case, where the two are inextricably linked, so doing is sensible and more conducive to determining the matter in the child’s best interests than attempting to consider the two separately.
As noted earlier, although not recommending that the child spend equal time with the husband, the author of the Family Report was firmly of the opinion that the child should spend more time with the husband than she now does. Counsel for the husband submitted that, if not equal time, the child should spend from Friday afternoon to Monday morning each alternate weekend and from after school on one day to the commencement of school two days thereafter (two consecutive nights) with the husband. Implicitly, and correctly in the Court’s view, that was submitted to constitute “substantial and significant time” with the husband. There could be no rational basis for suggesting that the balance of a 14-day period spent with the wife would not also constitute substantial and significant time with her.
It is apparent that this regime would not be reasonably practicable were the wife to reside on the Central Coast. It would not be impossible, nor even impracticable, but the travel would, having regard to the times which that travel would have to be undertaken and the demands of the husband’s employment, be onerous if the burden fell upon him. Given the fact that the wife does not drive and has issues with the use of public transport, quite apart from the nature of the journey from the Central Coast to W in Sydney, were the bulk of the obligation to facilitate such contact to fall upon the wife, real questions arise as to her ability to discharge her responsibilities with respect to such a regime. The wife’s partner would be unable to materially ameliorate those difficulties as he could only be available for afternoon travel and could not be available for morning journeys.
If the wife’s proposed regime for time to be spent with the husband clearly involves the potential for less frequent practical difficulties to arise. On the other hand, it would, during school term, result in periods of two weeks every fortnight in which the child did not see her father at all. Such an outcome is clearly inconsistent with the recommendation of the author of the Family Report, and, though arguably only marginally less in substance than the alternative to which reference has been made, would in the Court’s view result in a diminution of “significant time” to be spent with the husband.
As the authorities make clear, the requirements of “substantial and significant time” are conjoint. In Eddington & Eddington (No 2) (2007) FLC 93-349 the Full Court said (at 82,000):
Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances …
The Court perceives that an abundance of substance cannot compensate for a deficiency of significance, and vice versa.
Objectively, on balance, the most reasonably practicable regime in terms of the child spending substantial and significant time with each of her parents involves the wife continuing to reside in the W area, and the child being with the husband from Friday afternoons to Monday mornings each alternate weekend, and from after school Wednesday to the commencement of school Friday in each other week.
This tentative conclusion derives further support from the provisions of s 65DAA(3)(a)(iii) in that, as is obvious, the wife’s proposals involve only days “that fall on weekends and holidays” during school term. It is arguable by reference to the terms of s 65DAA(3) of the Act that such a regime may not be capable of constituting “substantial and significant time” within s 65DAA(2). On a literal reading of s 65DAA(3)(a) of the Act the Court would not necessarily so conclude given that the wife’s proposals involve the child spending Friday evenings and the very early part of Monday mornings with the husband but, such a regime clearly does not fall readily within the spirit of s 65DAA(3).
Whilst not a reason for concluding as it has with respect to s 65DAA(2), these observations with respect to s 65DAA(3) support such a conclusion. Implicit in the foregoing discussion is the Court’s awareness of s 65DAA(4) whilst the consideration of reasonable practicality has, although not expressly so stated, been impelled by the sorts of matters referred to in s 65DAA(5) of the Act.
The foregoing appears to be the statutory provisions to which the Court must have regard in determining this dispute. There are other matters to which reference can and should be made. The unchallenged medical evidence of Dr R, a specialist medical practitioner who has been the wife’s treating specialist since 1999 is significant, both to s 75(2) of the Act and the parenting dispute.
Without referring to it in detail, Dr R recorded the consequences of the wife’s 1999 neurological event. Objectively, as Dr R there described, and as the evidence, including the evidence of the wife herself makes clear, the wife has historically benefited from a significant and ongoing support network in the W region. The husband has been part of that network, not perhaps to the extent that he suggests, although on the wife’s evidence that has nevertheless been to a significant extent. So have other members of the husband’s family, as the author of the Family Report suggested and the wife herself, fairly substantially acknowledged.
Without referring to the evidence in detail, reflecting upon the evidence of the medical difficulties which the wife has, and will continue to have, and the practical implications of them, and the impact of an established network of support suggest that, other things being equal, the welfare of the child would be better served by her remaining in circumstances where those networks of support can continue than moving to an area where, it is clear on the evidence of the wife’s partner, those networks would be significantly less available, if only by reason of the wife’s partner’s obligation to work from very early in the morning until about 2.15pm.
It could be suggested by the wife that she is in a sense to some extent the victim of her own success in devising and implementing a very beneficial caring regime for the child over the five years since the parties first separated. The contrast however between what is, and will continue to be available for the child in the W area with the alternative is significant, assuming, as the Court does, that the wife would do everything she reasonably could, wherever she lived, to provide adequate arrangements for the child and an appropriate support network.
It remains to consider the matter agitated on behalf of the wife in relation to the wife’s entitlement to freedom of movement and enjoyment of life. Reference was made in this regard to the judgment of Kirby J in AMS & AIF (1999) 199 CLR 160 in which his Honour said (at 208):
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 [Family Law Act 1975 (Cth)] and FCA 1975 [Family Court Act 1975 (WA)]) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies143 and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. (footnotes omitted).
Inevitably one of the parties to this dispute will, with justification, see unfairness in the Court’s decision. Realistically, if the child continues to live at W, the wife’s entitlement to live where she chooses and with whom she chooses will be curtailed in a very real practical sense. On the other hand, and given that the Court accepts that it is not reasonable to expect the husband and his partner to relocate to the Central Coast, if the wife is able to relocate to the Central Coast that will have adverse practical consequences for the husband. There is simply no available outcome of this dispute which can accommodate the reasonable desires of both parties.
The Court is sympathetic to both parties but ultimately, as the legislation and Kirby J make clear, must make the welfare of the child the paramount consideration. The Court is comfortably persuaded on the evidence, essentially for the reasons which have earlier been recorded, that the best interests of this child will be served by her continuing to reside in W, primarily with the wife, but spending substantial and significant time with the husband, that being from Friday afternoon to Monday morning each alternate weekend and from after school Wednesday to the commencement of school Friday in the week following such time having been spent with the husband.
Whilst the Court is sympathetic to the wife’s position, and to the difficulty which this conclusion will create for the wife and the wife’s partner, the Court cannot elevate such sympathy to the status which it would require in order to determine the dispute in the way the wife seeks.
Objectively, the factors and the relevant statutory provisions which persuade the Court that the best interests of the child would be served by the regime to which reference has been made could not be offset by the greatest weight properly able to be given to the wife’s entitlement to freedom of movement and association. Objectively, only by elevating those factors to a status above the statutory provisions relating to the welfare of the child could the wife be successful in the parenting dispute. That is not an option available to the Court.
Though less than perfect, the regime referred to above is considered to be the most conducive to the best interests of the child in this case.

Property Settlement

The property of the parties to the marriage is largely uncontroversial although where there is controversy it is reasonably intense. The parties jointly own the former matrimonial home at W, which has an agreed value of $410 000. The wife has $12 700 in an ING Bank Account, $48 043 in an ANZ Progress Saver Account, $696 in the ANZ Bank and furniture worth $1000. The husband has guitars worth $5000, and two ANZ Bank Accounts worth $6500 in total.
As noted earlier in these Reasons, the area of factual disputation with respect of property settlement concerns add-backs. On behalf of the husband it was submitted the Court would add back $145 000 had and received by the wife. Through her learned Counsel, the wife conceded add-backs totalling $62 268.64 comprising $39 118.64 for paid legal fees, $8000 being 50 per cent of mortgage payments paid and $15 150 being 50 per cent of “unaccounted for living expenses” totalling $30 300. In broad terms, the parties are thus $80 000 apart in relation to add-backs.
The W property is encumbered to HSBC Bank in the sum of $120 000 (wife’s Outline of Argument) or $116 000 (husband’s equivalent document). No other liabilities are asserted on behalf of the wife. On behalf of the husband it was conceded that the Court could properly have regard to $13 000 of a larger sum claimed by the husband to be owed to an individual and on a credit card. The sum of $13 000 emerges from the husband’s evidence as sundry debts, apparently in the form of credit card debts existing at the date of separation of the parties.
The net asset pool is accordingly, on the husband’s case $499 939 and on the wife’s case $413 208.
Counsel for the husband included in the asset pool the husband’s superannuation interest which has an agreed value of $70 041. Counsel for the wife approached the superannuation interest via a second pool and sought to have the sum taken into account as a financial resource of the husband pursuant to s 75(2).
Little probably ultimately turns mathematically on whatever approach is taken to the superannuation interest. If it is included in the asset pool the wife will receive on a contribution based entitlement approximately $42 000 with respect to the husband’s superannuation interest, together with potentially another $6000 to $9000 pursuant to s 75(2). Conversely, if the superannuation entitlement were taken into account pursuant to s 75(2) the wife would be likely to receive approximately $35 000 by way of adjustment. The former approach is more favourable to the wife, and is the approach which the husband invites the Court to take with respect to the superannuation interest. In the circumstances the wife could hardly complain if the Court adopts that approach rather than the approach urged on her behalf.
The net asset pool of the parties accordingly is either $483 249 (wife’s case) or $569 980 (husband’s case).
It is then necessary to consider the add-back issue. As will be seen, the add-backs arise from two sets of financial transactions. For reasons which will become apparent, it is preferable to refer first to the disputed transactions which occurred second in time. It is common ground that on or about 3 March 2006 the wife redrew against the HSBC mortgage the sum of $95 000 which sum she placed in an account under her sole control. The effect of that transaction was to increase the debt over the W property to almost $120 000.
The wife deposed in her affidavit of evidence-in-chief (filed 7 June 2007, paragraph 41) to having disbursed the funds in the account in the following ways:
41.1$30,118.64 to Watts McCray Lawyers, for legal expenses;
41.2$8,000 to Sayan & Associates for legal expenses;
41.3$1,000 to Sarah Bevan & Associates for legal expenses;
41.4Installation of a split system air conditioner for the former matrimonial home in the amount of $3,000;
41.5Installation of a built-in wardrobe to the master bedroom to the former matrimonial home in the amount of $1,500;
41.6Plumbing works in the amount of $300;
41.7Locksmiths cost for new locks for the former matrimonial home, including the most recent occasion in May 2007 when my handbag was stolen, in the amount of $500;
41.8Rectifications works to the bathroom after a fire in March 2007 in the amount of $500;
41.9Repairs and replacement of skirting boards for the former matrimonial home in the amount of $1,000;
41.10Pest control for the former matrimonial home in the amount of $200;
41.11Replacement of venetian blinds for the former matrimonial home in the amount of $2,500;
41.12Removal of a tree in the backyard of the former matrimonial home in the amount of $200;
41.13Mortgage repayments, totalling $11,000, comprising of payments in the amount of $5,000 in 2006 and $6,000 to date in 2007;
41.14Medical expenses in the amount of $5,000 relating to an operation I had in 2007 at […] Hospital; and
41.15General living expenses.
The total of those funds (exclusive of the items referred to in paragraph 41.15 which is not quantified in any way) is $64 818.64. It is with respect to the $95 000 that the wife conceded the add-backs earlier referred to and totalling $62 268.64.
In cross-examination of the wife, for reasons which are not hard to understand having regard to the evidence of Dr R, she was less than able to provide cogent explanations for the fate of the difference between the amounts identified in paragraph 41 of her affidavit and the sum of $95 000. To the extent that the wife was tested in cross-examination in relation to the matters referred to in paragraph 41, there is no reason to reject her assertions in that regard.
Sensibly, the wife’s learned Counsel, in the absence of clear or documented explanations for the fate of the balance of the $95 000 relied upon circumstantial evidence in support of his assertion that, whatever the wife did with such balance of funds, the Court could conclude, on the balance of probabilities, that they were utilised for legitimate family purposes of one kind or another.
The circumstantial evidence relevant in this context relates more to the absence of the indicia of reckless, or wanton or indulgent expenditure than to affirmative evidence of anything else. The evidence is clear that the wife did not have a lavish lifestyle at any time after she received these funds, did not travel overseas, undertake expensive holidays or recreational pursuits, nor did she gamble or visit largesse upon religious, charitable, social or other groups or organisations. There is no evidence that the wife acquired valuable assets of any kind during this period. The absence of such evidence is significant. The significance is only increased by the evidence in the parenting proceedings of the nature and extent of the husband’s involvement in the life of the parties’ child, and the abundance of opportunity that created for him to see or hear or suspect that the wife was utilising funds other than responsibly and in relation to the marriage.
Notwithstanding the circumstantial evidence, save for the wife’s state of health, as that is established by Dr R’s evidence, the Court would be inclined to a different conclusion with respect to the balance of the $95 000 for which the wife has not provided an adequate explanation. That evidence however cannot be lightly ignored.
It is also relevant in this context to have regard to the comparative earnings of the parties at the time the wife was utilising these funds, a significant proportion of which she asserted to have been disbursed for “general living expenses” which, as noted earlier, she did not attempt to quantify. At all material times since separation the wife has been in receipt of government benefits, child support from the husband and modest interest on her bank account, and at no time has had employment or income from employment.
The husband by comparison has had a significant income and has been cohabiting with his present partner who also throughout that period has derived a significant income. The rent paid by the husband and his present partner appears only marginally greater than the monthly mortgage payments on W property after the mortgage had been increased in March 2006. Whilst the husband was paying substantial child support, he has never paid, but in fairness has never been requested to pay, spousal maintenance in circumstances where, on the evidence before this Court, but for the drawdown of $95 000, the wife may well have had an entitlement in that regard.

In the 2006 calendar year the wife paid $4900 in respect of the W property mortgage and the husband paid $4550. After January 2007 the wife paid the mortgage instalments of approximately $1200 per month. Notwithstanding that the wife was occupying the premises and the husband was deriving no benefit from them, the relative financial positions of the parties during that period militate against adding back, or otherwise reflecting in the contribution entitlements of the parties, the portion of the $95 000 for which the wife cannot adequately account.
Albeit received earlier in time, the second category of potential add-back relates to monies received by the wife from the parties’ HSBC Account between 1 December 2004 and 1 June 2005. During that period the wife withdrew $65 050 from the parties’ HSBC Account. After allowing for three repayments to the account between 28 July 2005 and 1 August 2005, each of $5000, the fate of $50 050 remains unexplained. It is that sum which the husband’s Counsel seeks to have notionally added back to the asset pool. Counsel for the wife contends that no portion of that sum should be treated thus.
Counsel for the wife raised a matter of importance in relation to this topic in the course of his final address. Counsel asserted that the issue had never assumed significance until the commencement of the trial and had not been raised by the husband in any affidavit sworn in the proceedings and relied upon by him. The wife was thus said to have been placed in the position of having no reason to expect, prior to the commencement of the trial, that she would be called upon to account for these monies.
It was submitted on behalf of the wife that it was inconceivable that this topic would not have been agitated sooner had the husband, who must have known of the transactions, had any cause for complaint. This was said to be particularly so given that the account from which the monies were drawn was a joint account to which, until April 2005, the husband’s entire wages were deposited.
The evidence of the husband, which is corroborated by the relevant account statements, is that whilst his wages went into the account during the period in question, he did not draw any monies against the account. The husband’s case is thus necessarily that during this period he was “kept” by his partner Mrs B.
The submission on behalf of the wife has considerable attraction. The Court must ponder how likely it is that the husband, an astute and intelligent man, with undoubted financial acumen, would have countenanced, or at least have acquiesced in the wife’s withdrawing from the joint account, what, essentially, were his wages, and utilising them were he not satisfied that they were being utilised for legitimate expenses in relation to the marriage.
The husband’s cross-examination provided some support for the version of events urged on behalf of the wife. The husband conceded that he was aware that the wife was withdrawing monies from the joint account during the relevant period and, at the very least, did not appear to assert that such withdrawals had been other than legitimate for family purposes.
Unsurprisingly, having regard to the circumstances in which these transactions were raised, and the wife’s health difficulties, the wife’s evidence in relation to this topic was less than compelling.
The Court has closely examined the affidavits relied upon at trial. Nowhere does it appear that the husband had raised the fate of $50 000 withdrawn by the wife in early 2005 prior to the commencement of the trial. Without criticising him or his legal Counsel for that apparent oversight, the failure to do so has the potential to visit an injustice upon the wife, insofar as her explanation of the fate of those monies is concerned, particularly given the matters relating to her health to which Dr R referred in his report.
The husband raises the add-backs and bears the onus of establishing that the Court should add back all or some portion of the $50 000 withdrawn by the wife from the joint account. The wife asserts that, in unspecified ways, the money was used for joint expenses. It is difficult to reject her assertions, particularly given the absence of any evidence of the kind of expenditure alluded to earlier in the context of the $95 000 which the wife withdrew and utilised.
Moreover, the circumstantial evidence militates against concluding that any portion of the $50 000 should either be added back or impact upon the contribution based entitlements of the parties. The evidence is clear that the husband knew that his salary was going into the joint account and that the wife was withdrawing funds from the account. The Court does not accept, with all due respect to the husband, that he would have permitted or acquiesced in the wife withdrawing these funds and utilising them inappropriately, particularly as he was not directly receiving anything from his salary during this period.
Whilst the Court cannot find with any precision what became of the funds, it does not need to, it being sufficient to find on the evidence that the funds were not dissipated or utilised in other ways which would render adding any portion of that sum back into the net asset pool of the parties.
Having rejected the claims with respect to add-backs, and not concluded that any adjustment to the contribution based entitlements of the parties should result from such refusal, the net asset pool of the parties becomes either $483 249 (wife’s case) or $569 980 (husband’s case). Taking the sum of $118 000 as the mortgage balance, the net asset pool is worth $485 249.

Contributions

As noted earlier, the contribution based entitlements of the parties is not controversial. Whatever view the Court might have come to, the 60/40 apportionment of contributions in the wife’s favour is sustainable on the evidence. The contribution based entitlements of the parties are accordingly respectively $291 149 on the part of the wife and $194 100 on the part of the husband.

Section 75(2)

It is then necessary to consider s 75(2) of the Act. As is not in doubt, this does not entail a question of whether there should be a s 75(2) adjustment in the wife’s favour, but rather how much such adjustment should be. On behalf of the wife it was submitted that a 15 per cent adjustment would be appropriate whilst on behalf of the husband a 10 per cent adjustment was suggested to be appropriate.
The relevant s 75(2) factors are not in doubt, and the facts relating to them are not significantly controversial. The wife will have the primary, but by no means overwhelming responsibility of providing for the care, supervision and upbringing of the parties’ child in the future. Given the child’s age, that is a very significant and enduring burden within the context of s 75(2), and calls for a significant adjustment in the wife’s favour.
The husband will continue to pay child support at an appropriate level, and no further adjustment in the wife’s favour by virtue of s 75(2)(na) would thus be appropriate.
The husband is in a relevant cohabitation. The husband’s partner represents a not insignificant financial resource to the husband. The wife’s partner may or may not cohabitate with the wife in future. Having regard to the wife’s partner’s evidence at trial, the determination of the parenting proceedings must, to whatever degree, reduce the likelihood of the wife and her partner cohabiting in the foreseeable future. Whatever ultimately transpires, the resources of the husband’s household appear likely to be greater than those of the wife’s household, whether or not the wife’s partner lives with the wife.
There is a very substantial disparity in the earning capacity of the parties. The husband suggested in cross-examination that the wife’s “limitations” on her employment prospects and a “reluctance” to rejoin the workforce. Both of those assertions have some substance. Dr R’s evidence makes it clear that the wife’s prospects of employment in the future are indeed limited. When one adds to that the reality that the wife has now not worked for nine years, has, with respect to her, no apparent formal skills or qualifications, and lacks self confidence, as clearly she does, there is no rational basis for finding that the wife has any significant earning capacity.
To the extent that the evidence touched upon this topic, as it tangentially did via Dominos Pizza, the evidence does not enable the Court to even guess what the wife might have earned, had she actually applied and gained employment at Dominos Pizza, or on what terms and conditions. The Court really needs to record no more than it can with absolute confidence in relation to this issue. The husband has a substantially greater earning capacity than does the wife and is likely to continue to do so in the future. That disparity demands substantial recognition.
In an asset pool of the magnitude determined by the Court in this case, a 12.5 per cent adjustment in the wife’s favour pursuant to s 75(2) is readily justifiable. This is particularly so as, if there is a basis for doing so, the financial consequences of the Court’s decision in the parenting proceedings is taken into account pursuant to s 75(2)(o).

Conclusion

For the foregoing reasons, the wife should be entitled to 72.5 per cent of the net asset pool. This means that the wife will receive $351 806 and the husband $133 443.
It remains to consider whether such an apportionment of the assets of the parties is just and equitable and how it may be affected. The wife sought, and the husband did not oppose, that the sale of W property be deferred until the end of 2008 and that, at any time prior to the sale of the property, the wife have the option to purchase the husband’s interest in the property.
On the basis that the wife retains her bank accounts (ING Direct $12 700; ANZ Bank Progress Saver Account $48 043; and ANZ Bank $696 totalling $61 439) and furniture ($1000) and regard is had to the legal fees paid ($39 118.64), half of the mortgage repayments made ($8000) and unaccounted living expenses ($15 150), the wife would be entitled to $227 098 of the equity in the W property [$351 806 - $61 439 - $1000 - $39 118.64 - $8000 - $15 150 = $227 098]. This represents approximately 78 per cent of the equity [$227 098/($410 000 - $118 000) * 100 = 78]. The husband would receive or retain his guitars ($5000), two ANZ Bank accounts (totalling $6500), his superannuation interest ($70 041) and 22 per cent of the equity in the W property (which approximates $64 902). The husband will be liable for his sundry debts ($13 000). Such division is shown below:-

Net Assets - Wife $ Net Assets - Husband $

Equity in W property 227 098 Equity in W property 64 902

ING Direct bank account 12 700 Superannuation 70 041

ANZ bank progress saver account 48 043 ANZ bank accounts 6500

ANZ bank account 696 Guitars 5000

Furniture 1000 Personal Loan (13 000)

Add-backs 62 269

351806 133443

The option to purchase that the wife be granted would be referrable to the market value of W property at the time the option was exercised, either with respect to a value then agreed upon for W property or failing such agreement, a valuation determined by a valuer nominated by the parties for that purpose.
It would be appropriate to now sever the joint tenancy and order that the parties henceforth hold their shares in the property as tenants in common in shares of 78 per cent to the wife and 22 per cent to the husband and that the outgoings on the property by way of mortgage instalments, municipal and water rates and insurances be met by the parties in those proportions.
The parties should otherwise retain all other property, including superannuation interests, which each possesses.

Costs

As foreshadowed at the conclusion of the trial of the proceedings, costs will be reserved.

I certify that the preceding one-hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date: 7 April 2008

[2008] FamCA 220

7 April 2008

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Constructive Trust

Net Assets - Wife	$	Net Assets - Husband	$
Equity in W property	227 098	Equity in W property	64 902
ING Direct bank account	12 700	Superannuation	70 041
ANZ bank progress saver account	48 043	ANZ bank accounts	6500
ANZ bank account	696	Guitars	5000
Furniture	1000	Personal Loan	(13 000)
Add-backs	62 269
351806	133443