Delaney & Delaney

[2009] FamCA 194

FAMILY COURT OF AUSTRALIA

DELANEY & DELANEY [2009] FamCA 194

FAMILY LAW – CHILDREN –  Best interests
FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

APPLICANT: Mr Delaney

RESPONDENT: Ms Delaney

FILE NUMBER: SYC 236 of 2007

DATE DELIVERED: 21 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 18 December 2008,
2 and 13 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Wight & Strickland

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Kazi Portolesi Lawyers

Orders

PARENTING ORDERS

1. The children K born … March 2002 and H born … September 2004 are to live with each parent on a week about regime during school term. The changeover time will be the conclusion of school each Friday in relation to K and 5.00pm each Friday in relation to H until she commences school. Once H commences school the changeover time and place for her will be Friday at the conclusion of school at the children’s school.

2. The changeover venue until such time as H commences school is to be the same site that the parties have been using during the last twelve (12) months unless otherwise agreed between them.

3. The parents are to have equal shared parental responsibility for the children.

4. Until the Christmas school holidays at the conclusion of H’s first year at school the parties are to continue the week about arrangement with changeovers during school holiday on Friday at 6.00pm to take place at the site used by the parties during the last twelve (12) months for those changeovers. For the Christmas school holidays at the end of H’s first year in school and all holidays thereafter the parties are to share equally in those holidays with the first half to the mother during the years ending in an even number and the first half to the father in the years ending in an odd number.

5. Each party is to ensure that the children spend some time with each parent on Christmas day and on each of the children’s birthdays. In the absence of agreement to the contrary the arrangement is to be as follows:-

   (a)Christmas: 3.00pm Christmas Eve until 3.00pm Christmas Day with the mother in years ending in an even number. 3.00pm Christmas Eve to 3.00pm Christmas Day with the father in years ending in an odd number. 3.00pm Christmas Day to 3.00pm Boxing Day with the mother in years ending in an odd number and 3.00pm Christmas Day to 3.00pm Boxing Day with the father in years ending in an even number.

   (b)Children’s birthdays: From after school until 7.00pm with the parent with whom the children are otherwise not living on the day of their birthday.

   (c)Mother’s Day and Father’s Day: From 5.00pm the day before Father’s Day until school time on the Monday after Father’s Day with the father. From 5.00pm on the day before Mother’s Day until school time on the Monday after Mother’s Day with the mother.

6. With the exception of the maternal grandmother being able to take H to dancing on one afternoon in each week whilst H is in the care of the mother (and with the mother’s permission) the mother is to ensure that the maternal grandmother is not left alone with the children for other than very short periods of time. Either the mother or the maternal grandfather or a responsible adult is to be present at the same time as the maternal grandmother with either of the children.

7. The mother is to ensure that the maternal grandmother does not make any derogatory statements about the father, his family or associates to the children or in their hearing.

8. Each party is to do all things necessary to attend upon a community based organisation nominated by the Family Consultant who prepared the family report for the hearing. The parties are to attend upon the community based organisation to seek assistance in improving their ability to communicate with each other for the benefit of the children. The docket Registrar is to advise each of the parties of the community based organisation recommended by the Family Consultant and the parties are to forthwith thereafter each make appointments to attend upon that community based organisation. A copy of these Orders and the family report may be provided by the parties to any counsellor assisting the parties in improving their communication.

9. Upon completion of the sale of the former matrimonial home the mother is to arrange alternate accommodation for herself and the children as soon as practicable. Such accommodation is to be reasonably proximate to N School. Should the mother not have moved her residence within three (3) months of the completion of the sale of the former matrimonial home the father has liberty to apply to seek interim orders for the children to live with him for a greater time than the mother pending the mother’s relocation.

10. Each of the parties is restrained from indulging in any argument with the other in the presence or hearing of the children.

11. When the parties need to communicate in the absence of them feeling comfortable about communicating via telephone they are to use email.

12. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY ORDERS

1. I make Orders pursuant to paragraphs 1, 2, 3, 4, 6, 7 and 9 of exhibit M1 as amended and set out hereunder:

   Exhibit M1

   1.That within twenty one (21) days from the date of the making of the Orders, the parties do all such acts and things and sign all such documents and authorities necessary to list the former matrimonial home at [A Street], in the State of New South Wales (“the [A Street] property”), for sale by public auction and in particular, are to:-

   a.List the home with such real estate agent as shall be agreed between the parties, or in default of their agreement for a period exceeding seven (7) days, such agents as shall be appointed by the President for the time being of the Australian Property Institute Inc. (NSW) or his nominee;

   b.List the [A Street] property for sale at a reserve price agreed between the parties, or in the absence of agreement, at a price determined by a valuer appointed by the President for the time being of the Australian Property Institute Inc. (NSW) or his nominee;

   c.Instruct such solicitor to act on the sale of the [A Street] property as shall be agreed between the parties, or in default of their agreement for a period exceeding seven (7) days, such solicitor as shall be nominated by the President for the time being of the Law Society of New South Wales, or his nominee.

   d.Attend the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached.

   e.Execute the Contract for Sale.

   f.Execute all other documents required to complete the sale.

   2.That in the event that the [A Street] property is not sold at the auction pursuant to Order 1 hereof, and in the absence of agreement to the contrary, the Husband and the Wife forthwith thereafter shall do all such acts and things and execute all documents, instruments and writing necessary to submit the [A Street] property for sale by such further auction or auctions as may be necessary to effect the sale of the home, and the provisions of Order 1 to apply in like manner to such further auction or auctions.

   3.That the parties are to co-operate in every way with the Agent appointed for the sale of the [A Street] property including (but not limiting the generality of the foregoing);

   3.1      Making the key available to the agent.

   3.2Allowing inspection of the property at all reasonable times requested by the Agent.

   3.3Doing or saying nothing to hinder or prevent a sale being effected.

   3.4Ensuring the property, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers.

   3.5Signing all documents requested by the Agent in relation to the listing for sale of the [A Street] property, except a contract or agreement for sale which has not been authorised by the parties lawyers.

   4.That upon settlement of the sale of the [A Street] property, the Husband and the Wife shall do all such acts and things necessary to direct the proceeds of sale to be paid in the following manner and priority:-

   a.        In payment of agents’ selling commission and auction expenses.

   b.In payment of the legal costs and disbursements of and incidental to the sale.

   c.In repayments of any amounts outstanding and charged upon the said property by mortgage/loan (including the viridian loan).

   d.In payment of any outstanding rates and taxes in respect of the said property.

   e.In payment of the balance as to 77% to the Wife and balance to the Husband.

   …

   6.That the Husband is entitled to be the sole legal and beneficial owner of all his entitlements to superannuation.         

   7.That the Wife is entitled to be the sole legal and beneficial owner of all her entitlements to superannuation.

   …

   9.Except as otherwise provided in these Orders, the Husband and the Wife are each entitled to be the sole legal and beneficial owner of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and other personal effects currently in the possession or control of each of them respectively. And shall be solely responsible for all liabilities in their respective names.

2. Pending completion of the sale of the former matrimonial home the husband is to have occupation of same and is to pay the outgoings including the mortgage of the viridian loan.

3. The Court notes that the parties have reached agreement in relation to the distribution of the jointly owned chattels.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 236 of 2007

MR DELANEY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

1. These proceedings are parenting and property proceedings.  The parents are Mr Delaney born in December 1971 (the father) and Ms Delaney born in December 1971 (the mother).  The children are K born in March 2002, now six years of age, and H born in September 2004, now four years of age. 

2. On 18 March 2008 I recorded, with the parties' consent, a document which became exhibit X4.  That document sets out non-contentious background facts.  I here incorporate into these reasons that document:

   Basic facts regarding the marriage:

   ·The applicant husband, [Mr Delaney], was born [in] December 1971.

   ·The respondent wife, [Ms Delaney], was born [in] December 1971.

   ·The father of the respondent wife, [the maternal grandfather], was born [in] June 1934 in the Netherlands and arrived in Australia in 1953.

   ·The parties were married [in] May 1999.

   ·There are two children to the marriage: [K] born [in] March 2002 and [H] born [in] September 2004.

   ·The parties separated in October 2006 but continued to live under the same roof until 29 May 2007 (husband claims the specific dates were 16 October 2006 and 27 May 2007 respectively).

   ·The applicant husband works fulltime at [C Company], while the respondent wife works fulltime in retail and marketing at […].

   ·On or about 29 May 2007 the respondent wife and the children moved out of the matrimonial home at [A Street]. The husband and wife have lived apart since this time.

   ·The respondent wife and children then moved into her parent’s house ([the maternal grandparents]) at [address].

   ·The applicant husband has continued to live in the matrimonial home since the respondent wife moved out.

   ·From 9 June 2007 the children have spent alternate weeks, from Friday 7 pm until Friday 7pm with the wife and husband. The parent who cares for the children in the coming week picks the children up from the other party on the Friday.

   Detailed chronology of non-contentious facts in this matter

   ·The husband and wife commenced cohabitation in 1998 at the wife’s parent’s house (there is dispute as to when cohabitation commenced stemming from what date each party asserts the husband moved in - whether husband moved in during February 1998 or April 1998).

   ·In early 1998 the wife’s parents paid $64,120 towards the deposit, stamp duty and legal expenses for the purchase of a property at [D].

   ·In late June/ early July 1998 the husband and wife purchased the property at [D] for $258,000 and commenced living there.

   ·The parties married [in] May 1999.

   ·On 14 August 1999 the wife’s parents paid $3,550 for renovations to the attic in the [D] property.

   ·In January 2001 the wife’s parents paid $14,000 for the purchase of a motor vehicle (mainly driven by the husband).

   ·On 7 June 2001 the parties borrowed $22,000 to purchase the wife’s motor vehicle.

   ·On 17 September 2001 the wife sold a property she received by way of inheritance from the estate of the late […] (grandmother) for approximately $225,000. A portion of this money ($16,100) was used to pay for renovations of the [D] property.

   ·Although the date is unclear (sometime in late 2001), the parties sold the [D] property for $488,000 receiving net proceeds of approximately $467,000.

   ·On 31 December 2001, following the sale of the [D] property, the parties commenced living in rental accommodation at [B] where they remained for 6 months.

   ·In January 2002 the husband was made redundant from his employment at that time.

   ·[In] March 2002, the parties son [K] was born.

   ·In May 2002 the wife’s parents paid $80,000 towards the purchase of the [A Street] property.

   ·On 30 May 2002 the wife’s parents paid an additional $25,009 to assist with the purchase of the [A Street] property.

   ·In June 2002, the husband commenced employment with [M Company].

   ·On 1 July 2002 the wife, following the birth of [K], returned to fulltime work with [R Company].

   ·On or about October 2002 the parties finalised the purchase of the [A Street] property.

   ·On 13 January 2003 the wife received a payout from [R Company] of $11,817 upon leaving that employment.

   ·On 25 March 2003 the wife commenced fulltime employment with [S Company] for 3 months.

   ·On 1 May 2003 the wife commenced casual work with [T Company].

   ·On 2 May 2003 the maternal grandfather ([…]) retired to assist maternal grandmother in providing childcare to the children when they are in their care (ie: during the times when wife is unable to provide care to the children due to work commitments).

   ·On 19 August 2003 the parties borrowed a “Virdian Line of Credit” for $68,000. Home loan repayments are paid from this account and the balance of the personal loan for wife’s motor vehicle is paid from this account (remaining loan is agreed to be $17,026).

   ·On 21 February 2004 (until July 2004) the wife commenced casual work at [G Company].

   ·[In] September 2004 the parties daughter [H] was born.

   ·On or about October 2006 the wife commenced employment with [L Company].

   ·In October 2006 the parties separated but continued to live under the same roof until 29 May 2007 (Husband claims the dates are 16 October 2006 and 27 May 2007 respectively).

   ·On or about 26 May 2007 the wife was arrested and charged in relation to physical assault on the husband.

   ·In or about May 2007 the husband completed a parenting after separation program recommended by the Family Consultant but the wife has not completed such a course (according to Family report dated 1 November 2007 at p7).

   ·On 9 June 2007 the informal one week alternate parenting agreement between the parties commenced (now formalised through the Orders of Le Poer Trench J dated 24 October 2007). The husband placed the daughter [H] in day care but failed to provide wife with details of the day care location (it is unclear when the details where given but both parties assert that the husband did at some time provide the details of the location of the day care).

   ·In early 2007 [K] commenced Kindergarten at [N] School.

   ·When the children are in the care of the husband, [K] attends before and after school care and [H] attends Family Day Care five days per week. When the children are in the care of the wife, [K] is picked up and dropped to school each day by the maternal grandfather and [H] is cared for by the maternal grandparents while the wife is at work. The parties agree that [K] is to continue attending [N] School.

   ·On 27 September 2007 the wife was convicted in Hornsby Local Court (in relation to the events of 26 May 2007) and placed on a 12 month good behaviour bond and an AVO was issued against the wife for the benefit of the husband.

   ·In the first week of February 2008, the wife makes a complaint to [H’s] day care centre ([W] Day care program) regarding alleged abuse of [H] by another child at day care. Following these events [Ms NN], the carer of [H], decided to no longer care for the child.

   Non-contentious issues regarding mortgage repayments:

   From the financial statements of the husband (filed 16 January 2007) and the wife (filed 12 February 2007):

   ·Both husband and wife claim a 50/50 share in the matrimonial home at [A Street] (Husband claims the value of his share is $500,000 while wife claims her share is E$450,000).

   ·Both parties agree their liability regarding the home mortgage is 50/50 with the amount of each share being $143,500.

   ·Both parties agree that their liability for other mortgages is a 50/50 share of $34,000 each.

   General non-contentious issues relating to parenting and the relationship of the parties:

   ·Both husband and wife acknowledge their relationship with each other is poor and they are unable to communicate meaningfully without harsh verbal exchanges.

   ·Prior to and since separation the husband and wife have frequently argued, involving verbal and physical abuse, sometimes in the presence of the children.

   ·Both parties agree that the respondent’s father and the husband have a good relationship while the relationship between the respondent’s mother and the husband is very poor and has resulted in heightened exchanges of words.

   ·Both parties agree that they are concerned regarding the interaction at times between the applicant father and the son [K] regarding the son kicking and punching his father and needing to be physically restrained by the father.

   ·Both parties agree that the consumption of alcohol by the mother in mid to late 2006 was a concern.

   ·Parties have been using a communication book which travels with the children from one household to the other but both parties have had difficulties regarding this as a method of communication.

   ·The parties agree that discussion of financial commitments (ie: the mortgage of the matrimonial home) over the phone generally results in fighting and one party hanging up on the other.

   The document is read subject to paragraphs 30 through to 36 of the wife's affidavit of 13 June 2008 and the husband's concessions.

3. Prior to the hearing commencing on 12 January 2009 the parties collaboratively prepared a document entitled "Combined Chronology of Events".  That document was marked as exhibit X5.  Those portions in bold show each party's assertion as to relevant facts.  I incorporate that document into these reasons:

   Combined Chronology of Events

[…] Dec 1971

Wife born (now aged 37 years)

[…] Dec 1971

Husband born (now aged 37 years)

The Wife Asserts

24 Feb 1998

Parties commence cohabitation when the husband moves in to live with the wife at her parents’ home where the parties reside free until they move to [D] (5 months)

Wife’s parents contributes $64,120.00 for the purchase of [D] Property

The Husband Asserts

April 1998

Parties commence cohabitation when the husband moves in to live with the wife at her parent’s home where the parties reside until they move to [D] approx 2 months.

Wife’s father contributes $64,120.00 for the purchase of [D] Property

The Husband Asserts

June 1998

Parties move into [D] home, purchased for $258,000.00 (just before fin year end)

The Wife Asserts

01 Jul 1998

Parties purchase [D property] for $258,000.00 and commence to live there following settlement

[…] May 1999

Parties marry

14 Aug 1999

Wife’s parents pay for attic in [D] Property $3,550.00

03 Jan 2001

Wife’s parents pay $14,000.00 for purchase of motor vehicle (principally driven by husband)

The Husband Asserts

Early 2001?

[…] (wife’s grandmother) lives with husband and wife (for approx 4 months)

7 June 2001

Parties borrow $22,000.00 to purchase wife’s motor vehicle

17 Sep 2001

Wife sells property at [P] she received by way of inheritance from estate of late […] (grandmother) for approx $225,000.00

The Husband Asserts

Sept 2001?

Wife contributes $198,000.00 to payment out of mortgage of [D] property

Parties sell property at [D] for $488,000.00 receiving net proceeds of approx $467,000.00

The Wife Asserts

(undated)

Parties sell property at [D] for $467,000.00 receiving net proceeds of approximately $488,000.00

31 Dec 2001

Parties commence living in rental accommodation at [B] where they remain for 6 months

The Husband Asserts

Jan 2002

Husband received redundancy payments, 3 months redundancy pay (approx $8,000), further 3 months care for wife and newborn son

The Wife Asserts

(undated)

Husband is retrenched and remains out of employment for 6 months

[…] March 2002

[K] born (now aged almost 6 years)

8 May 2002

Wife’s parents pay $80,000.00 towards purchase of the parties’ [A Street] property

30 May 2002

Wife’s parents pay $25,000.00 towards purchase of the parties’ [A Street] property

June 2002

Husband commences employment with [M Company]

01 July 2002

Wife returns to full time work with [R Company]

The Husband Asserts

Aug – Oct 2002

Husband and Wife attend marriage counselling, counselling ended at the request of wife

The Wife Asserts

24 Oct 2002

Parties finalise purchase of [A Street] property

13 Jan 2003

Wife receives $11,817.00 payout from [R Company] (her employer) upon leaving that employment

25 March 2003

Wife commences full time employment with [S Company] for 3 months

01 May 2003

Wife commences casual work with [T Company]

02 May 2003

Maternal Grandfather retires and assist maternal grandmother in providing childcare

The Husband Asserts

19 Aug 2003

Parties borrow “Viridian Line of Credit” $68,000.00 (limit)

a. This account facilitates home loan repayments

NOTE: Husband makes payments to counter loan repayment each month

b. The balance of outstanding personal loan for the motor vehicle (wife) of $17,026 being paid from this account.

Balance outstanding of $68,000.00 as at date of separation 16 Oct 2006 (husband makes all interest repayments to maintain home loan and interest debt)

The Wife Asserts

19 Aug 2003

Parties commence operating Viridian Line of Credit for $68,000.00 by:-

a. Having home loan repayments paid from this account;

b. The balance of outstanding personal loan for the motor vehicle of $17,026.00 being paid from this account

21 Feb 2004

Wife commences casual work at [G Company] (until July 2004)

[…] Sep 2004

[H] born (now aged 3 years)

Oct 2006

Wife commences employment with [L Company]

The Husband Asserts

16 Oct 2006

Parties agree to separate – husband and wife remain in the matrimonial home.

Husband pays almost all necessary household bills, mortgage and interest repayments, insurances, rates, school fees etc (Oct 06 – Feb 08 total of over $60,000.00)

The Wife Asserts

Parties separate – husband remains in the former matrimonial home

The Husband Asserts

November 2006

Parties attend mediation at Relationships Australia, ended by Wife

The Husband Asserts

Jan 07

Parties submit initial documents to Family Court

The Husband Asserts

Feb & March 07

Parties attend meetings with Family Consultant, [Ms Y]

The Husband Asserts

May 2007

Meeting with Registrar Micallef at Family Court

The Husband Asserts

May 2007

Husband attends “Parenting after separation course” as directed by Family Consultant 2 Saturdays in May

The Husband Asserts

27 May 2007

Wife arrested for assault on husband

The Wife Asserts

25 May 2007

Parties involved in altercation resulting in the wife being charged for assault by Police

The Husband Asserts

June 2007

Parties commence informal arrangement (now formalised through orders) whereby the children spend alternate weeks with each parent.

Husband places [H] in accredited family day care hours 8 – 5pm. Wife was not informed of exact location, but was placed as emergency contact, due to continual threats to “pick her up and do what she likes” [and] interfere with the relationship of husband and children

The Wife Asserts

June 2007

Parties commence informal arrangement whereby the children spend one week with each parent on an alternating basis.

Husband places [H] in long-term day care without consultation with the wife and fails to provide the wife with any details of the day care centre.

The Husband Asserts

[…] Sept 2007

WIFE CONVICTED OF ASSAULT

The Wife Asserts

27 Sep 2007

Hearing of the AVO and Assault charge against the wife

28 Sep 2007

First LAT Intake Hearing date

24 Oct 2007

Orders made in relation to changeover arrangements by Le Poer Trench J

The Husband Asserts

6 Feb 08

Wife makes complaint to [W] family day care of false allegations of abuse of [H] whilst in care by a 2 year old girl (this issue was dealt with by Husband in November 07). Subsequently, family day care are required to notify Department of Community Services of any complain[t] by a parent (founded or not) and even though wife is not contractual parent.

This resulted in unnecessary stress to the carer and her family business. Her quote to the father “I can not have your family affairs interfere with my family business, what is your crazy wife going to accuse me of next”.

End result [H] will no longer be cared for by [Ms NN] (has been the case since June 07, alternate weeks)

Wife interfered with the child care of the husband, resulting in changing of carers for [H].

The Husband Asserts

As at 16 Feb 08

Husband has made a total of $20,380.00 payments on behalf of wife to cover mortgage and line of credit interest to date post separation, and payment of necessary household bills Oct 06 – May 07. Husband also contributes same amount to payments.

The Husband Asserts

98 – Separation

Husband’s parents have made a total of $15,625.00 in payments and transfers to husband and wife

The Husband Asserts

99 – 2007

INCOMES: Husband has earned a total of $482,098.00 salary & $170,000.00 in contributions to the family in the form of company cars and 1 year of car allowance. Total amount $652,098.00

Wife has earned a total of $432,298.00, although submitting no tax returns for the 05 & 06 years (allowing last 4 years to current salary of $46,000.00 as “home maker”). Without this allowance, total taxable income earned by wife of $305,009.00 (99 – 07)

1. In early 2008 the parties provided to the Court a document titled "List of the Parties' Respective Contributions".  That document became exhibit X2 in the hearing.  It was further amended at trial.  I incorporate that document into these reasons:

CONTRIBUTION	PARTY	AGREED/DISAGREED
Rent free accommodation from February to July 1998	Wife (parties lived with wife’s parents)	Disagree, it was April to May
$64,120.00 towards deposit, stamp duty and legal expenses for purchase of property at [D]	Wife (paid for by wife’s parents	Agreed
$4,334.00 paid for the parties’ honeymoon	Wife (paid by wife’s parents)	This was a gift
$3,550.00 towards the costs of constructing an attic at the [D] property	Wife (paid by wife’s parents)	Agree
Inheritance of [P] property in 2001 resulting in $15,100.00 being paid towards renovations of [D property], $108,000.00 towards the mortgage secured over [D property] and $10,800.00 towards rental and living expenses of the parties following sale of [P property]	Wife	Agree with $16,100 Disagree with $108,000, it was $198,000 Agree with $10,800
$1714.00 in costs of air-conditioning installed in [A Street] property + $4000.00 for mortgage repayments for [A Street] property	Wife (paid by wife’s parents)	This was a gift by father It was a gift
$80,000.00 towards the purchase of the property at [A Street] in 2002	Wife (paid by wife’s parents)	Agree
$25,009.00 on 30 May 2002 to assist with the purchase of [A Street]	Wife (paid by wife’s parents)	Agree
$14,000.00 towards payment of a car loan	Wife (paid by wife’s parents)	Disagree it was for car loan
Major homemaker/ parent contribution	Wife	Disagree

1. On the first day of the trial an agreed balance sheet was tendered, exhibit X3. I incorporate that document into these reasons: 

Balance Sheet
Assets
[A Street]	$ 1,025,000.00
Wife’s Super	$31,491.56
Husband’s Super	$54,390.00
Wife’s Car	$4,500.00
Husband’s Shares	$4,000.00
$1,118,781.00
Liabilities
Mortgage	$288,020.00
Line of Credit	$68,000.00
Husbands Credit Card	$30,500.00
Wife’s Credit Card	$19,000.00
$405,520.00
Net	$713,261.00

1. On the first day of the trial I asked each counsel to collaboratively prepare a list of findings of fact they each sought from the Court in the trial.  That document was marked as exhibit X7 in the trial.  A Family Report was prepared and became exhibit X6.  The Family Consultant gave oral evidence on 18 December 2008 as she was not available for 12 and 13 January 2009. I will refer to that evidence later.

2. The parties have now agreed that K will continue to attend N School in the future.  Further, they agreed that H will attend that same school when she commences her schooling.  The parties have agreed that the former matrimonial home at A Street is to be sold.  The father has previously pursued orders which, if granted, would see him retaining the property. 

Competing Proposals

1. The mother's proposals for the care of the children and the orders she seeks in relation to property matters are set out in the minute of order which exhibited as M1.  The father's proposals appear in his application for final orders filed 16 January 2007 subject to minor variation as provided in his evidence.  Exhibit H2 sets out those amendments.  Exhibit H2 is to be read in conjunction with the husband's application for final orders.

2. Each of the parties has filed a parenting questionnaire which has now been overtaken by their other written and oral evidence but was nonetheless exhibited in the proceedings.

Credit

The Father

1. The father gave his evidence in a straightforward and apparently honest manner.  He made concessions against interest when they were properly called for.  He did not appear to be harbouring continuing animosity towards the mother. He did not attempt to condemn the mother in his answers.  He presented as a caring and committed father.  I was very impressed with him as a father, a person and a witness. 

The Mother

1. For the large part the mother presented in the witness box as a truthful witness.  I did think she was not disclosing all that she knew in relation to subjects such as her mother's drinking habits and conflict in her parents' home.  I did not think that she was completely forthcoming about her own drinking habits during the time the parties lived together up until May 2007.  I understand that she was embarrassed about her behaviour during the last 12 to 18 months prior to May 2007 and did not wish to relive this time by recollection of them.

Conclusion

1. Generally I found the father a more reliable witness than the mother and in areas of factual dispute I do prefer his version of the facts.

Findings of Fact

Whether or not either or both of the parties during the period of cohabitations exposed the children to family violence including physical and verbal violence

1. Each of the parties submit there was physical violence and verbal abuse exhibited to the children prior to the physical separation of the parties in about May 2007.  The father set out extensively in his affidavit evidence of verbal and physical altercations in the presence of the children and otherwise.  The mother admitted some of those matters and not others.  Those that she did admit were sufficient to paint a very harmful emotional environment for the children.

2. During cross-examination the mother claimed that although she physically assaulted the husband she was in turn assaulted by the husband.  None of those allegations were put to the husband in cross-examination.  The only allegation the wife had made in writing was that she had been pinched on one occasion by the husband. The husband in cross-examination admitted that he had called the mother a slut and a whore.  He said he had done that away from the children.  He later conceded he may have made derogatory statements about the mother in the presence of the children. 

3. I am satisfied and so find the mother was physically violent to the father as he alleges.  I am satisfied the mother used the language complained of by the husband.  I am satisfied that the father used denigrating statements on occasions about the mother in the presence of the children.  I find the use of abusive language by the parties in the presence of the children has largely disappeared since May 2007.  I am satisfied the children have seen their parents arguing at changeovers on occasions.

Whether or not while living in the home of her parents the wife has exposed the children to family violence including physical and verbal abuse

1. It is submitted by both parties that the answer to this finding should be yes.  The husband says K spoke of this to the Family Consultant.  Paragraph 22 of the Family Report contains admissions by the mother that her parents were often engaged in conflict, however she stated that the children were not badly or directly affected by it.  The Family Consultant went on to say:

   It appears that [the mother] does not adequately recognise the risks to the children as a result of exposure to family conflict.

2. In her oral evidence I am satisfied that the mother understated the conflict in her parents' house.  She attempted to portray a picture that the children were shielded from it because she kept them in her room.  This, however, ignores the times when the children were/are present in that house without their mother.  She does not get home from work until 6.00 pm.  During the week the mother's father cares for H and collects K from school at about 3.00 pm.  It really is in the best interests of the children that they are removed from that home as soon as possible.  I will refer to these matters later in these reasons.

Whether or not the wife has difficulties with alcohol, anxiety and depression which impact upon her capacity to care for the children

1. The evidence satisfies me that prior to May 2007 the mother was abusing alcohol and this, I am satisfied, adversely impacted upon her capacity to properly care for the children.  I am satisfied that the mother no longer abuses alcohol.  I accept her explanation that her abuse of alcohol was a reaction to great unhappiness she was experiencing in the relationship with the father.

2. The father says that the mother abused alcohol throughout the whole of the relationship.  I do not accept that this occurred in the way observed during the period of about 18 months prior to May 2007.  The maternal grandmother has a problem with alcohol. This seems to be acknowledged.  She has had a problem, it appears, for many years.  This should be a significant reminder to the mother to ensure that she does not abuse alcohol in the future.  The mother gave evidence that she has taken Valium under prescription for anxiety.  She says that she takes it as required. She says takes it infrequently and I accept that evidence. 

3. It was submitted by the husband that I should be concerned the mother is still a heavy drinker.  I do not have any evidence to support making such a finding.  I am also unable on the evidence to make conclusions about the mother's anxiety or depression from time to time impacting upon her ability to care for the children.

Whether the wife has placed her own needs ahead of those of the children in continuing to reside in the home of her parents

1. The parties tried to live a separate life under the one roof; that was plainly a disaster for each of them and for the children.  The mother says she would like to have her own accommodation and not be dependent on her parents.  I accept she is genuine in that desire.  In May 2007 the mother says her income was not sufficient to enable her to meet a rental of between $450 and $600 per week to accommodate herself and the children.  Her parents are unable to assist her further financially.  I accept that evidence.

2. I also accept that the mother is dependent upon the sale of the former matrimonial home or the payout of arrears of child support (currently about $6000) to be able to meet a bond and pay rental of about $450 per week, minimum.  She has asked the husband on a number of occasions since separation to agree to the sale of the former matrimonial home.  However, he has declined her request and until recently was proposing to keep the property as part of the property settlement.

3. In all the circumstances I cannot be satisfied that the mother had the capacity to rent appropriate accommodation for herself and the children away from her parents since May 2007.

Whether or not the wife's mother, whether intoxicated or otherwise, is an appropriate person to care for the children or be left alone with the children

1. The evidence discloses that from time to time the wife's mother is very badly affected by alcohol.  It seems she becomes abusive and conflicted with the wife's father when inebriated.  The mother agreed the police had been called to the house to deal with such a situation.  It seems it is her mother that calls the police.  The evidence of the mother and her father is that the maternal grandmother's behaviour is generally very good.  They both say she loves the children and it is clear that she has been very significantly involved in their care for a number of years. She currently takes H to dancing in the late afternoon one day per week. Of concern is the evidence of the Family Consultant about the maternal grandmother.  In paragraph 26 of the Family Report the following appears:

   [The maternal grandmother] talked incessantly about the financial and other contributions she and her husband had made and her intense dislike for [the father].  She spoke in florid language about [the father] killing or trying to kill the maternal great-grandmother or her daughter by criticising them and by being selfish and breaking their spirits.  [The maternal grandmother] did not appear to be able to effectively contain emotions or perceive normal social boundaries.  She had to be limited from speaking on a number of occasions and at numerous times throughout the interview her husband told her to shut up and [the mother]told her to "be quiet".  At one point her husband asked, "Does she have to be here?"

1. In addition the Family Consultant reported in paragraphs 28 and 29 of her report as follows:

   [The father] stated that the police have attended the home of the maternal grandparents on many occasions as a result of family arguments and violence.  [The father] confirmed that on 31 July 2007 while the children were there the police attended.  [The father] said that [Ms Delaney] (the mother) told him that her father had given her mother a black eye.  In interview, [the mother] said that her mother had falsely alleged that [the maternal grandfather] had hit her. 

   [The father] said that [K] told him that his grandmother had run into a wall and had tried to blame Opa, that is his maternal grandfather.  [Ms Delaney] (the mother) stated that police have attended [the maternal grandparents’] home on two or three occasions since she moved in during May 2007.  [The father] stated that on two occasions when he as gone to pick up the children [the maternal grandmother] has been intoxicated and on at least one of those occasions she was apparently locked in the front room for containment. [The father] stated that [the maternal grandmother] has been very verbally abusive to him in front of the children. 

2. If the children are exposed to their maternal grandmother's negative views of their father it could well impact on their relationship with him and/or their maternal grandmother.  As a balance to the views of the maternal grandmother about the father the children have their maternal grandfather.  It is clear that he has a good and supporting relationship with the father and that is reciprocated.  The maternal grandmother did not give evidence in the case when clearly she is a significant person in the case of the children. I must accept that the mother had good reason not to call her and that reason would not have assisted the mother's case. 

3. I find there is reason for concern about the maternal grandmother's interaction with the children.  In my opinion an injunction should be made to ensure there is a supervising role taken by either the mother or her father in the time that the maternal grandmother spends with the children.  I do accept the maternal grandfather's evidence that the maternal grandmother has contained her drinking and behaviour as she loves the children and would not wish to be excluded form their lives.

Whether or not the husband is better able to attend to the day to day needs of the children

1. It was submitted by the father that I would find he is better able to attend to the children's day to day needs.   He submitted the evidence establishes that he is able to spend more time with the children; he collects the children at about 4.45 pm (H) and 5 pm (K) from their after school care and day care.  He drops them off at 8 am and 8.15 am in the morning. The father would have me accept that his household environment is likely to be more settled and a better emotional environment for the children than that of the mother because of the maternal grandmother and the possibility that the mother may revert to excessive alcohol intake. There is some merit in this argument. 

2. On the other hand I would have concerns the children may resist the change to the current regime because, according to the Family Report, they perceive the father as being more rigid than their mother in relation to discipline.  Each of the parents appears to have a slightly different approach to parenting.  I am satisfied that the children would benefit from exposure to both styles.  I am satisfied that the parents each love their children and that the children love each parent.  The evidence would not allow me to make a positive finding as is suggested by this issue.

Whether or not the Court could be confident that the wife will implement her stated proposal to relocate so that she can facilitate the children's attendance at N School

1. The parties now jointly support the children attending N School.  H will start that school in 2010.  The mother has told me she proposes to move within three to six months of the completion of the sale of the former matrimonial home.  She does not oppose me making an order requiring that she do so.  I did have some concern that the mother may not expeditiously relocate after completion of the sale of the former matrimonial home because she does not appreciate the possible damage which may be caused to the children's psychological and personality development of being exposed to her mother's aberrant behaviour.

2. I am satisfied that the mother will relocate within a reasonable period (three months) of the completion of the sale of the former matrimonial home.  I also propose to order she do so as soon as practicable after the sale of the property. 

Whether or not the wife's father's involvement in the care of the children may be of limited duration given his age and whether or not this may be an impediment in the wife's care of the children

1. The wife's father gave evidence both in an affidavit and orally.  He is clearly a very decent and supportive grandfather who significantly inconveniences himself in order to assist his grandchildren and the parties.  He has been able to tread a line between the parties which allows him to be loved and appreciated by both parents. Being able to achieve that position in the dynamics of this family he deserves the highest of accolades and probably canonising by a church.

2. He appeared to give his evidence honestly and competently. He is 73 years of age, he looked fit and well, and there is no medical evidence to suggest he has any health problems.  I could not find on the evidence that the maternal grandfather's care for the children in the foreseeable future is likely to be affected by poor health or other incapacity arising as a result of his age or state of health. 

Whether or not the poor and conflictual relationship between the parties indicates that equal shared care is not appropriate

1. The father submitted that the parties' relationship is poor and that communication is difficult.  He submitted this would suggest equal time would be difficult to implement because of the necessary level of communication required.  The mother agreed communication is poor, however she said a contributing factor is that the father uses communication to press her in relation to financial contribution towards the house expenses (mortgage in particular) and other costs of the children.

2. The father in cross-examination agreed that he did try to discuss these matters with the mother and there were arguments.  The Family Consultant saw the financial dispute between the parties as significantly impacting upon the parenting arrangements and the level of conflict between the parties.  Perhaps one of the saving aspects of the current arrangement is the ability of the father and the maternal grandfather to communicate.  Both parents recognise that the poor level of communication handicaps the emotional environments they can each provide for the children.  Both appear to harbour a desire for things to change between them.

3. Each is prepared to engage in counselling with a community based organisation to improve their relationship.  Although the level of communication is currently poor there is cause for optimism that this will change for the better in the future and I conclude therefore it does not, in this case, preclude an equal time arrangement.

Whether or not the wife's failure to attend a Parenting After Separation course does not reflect well on her

1. The father did attend a Post Separation Parenting Course as recommended by the Family Consultant, the mother did not.  No real explanation has been provided by the mother as to why she did not attend.  The mother was not cross-examined about this matter.  I am unable, on the evidence, to make a positive finding that the mother's failure to attend a parenting after separation course should reflect badly upon her; however, I suspect it probably does.

Whether or not the wife's proposal for the children to attend school at V indicates a lack of insight on her part into the needs of the children

1. The mother in her parenting questionnaire filed in September 2007 proposed that K attend N School.  At a later time she changed that proposal to one where the children would attend private schools in the eastern suburbs of Sydney.  She said the school she proposed was geographically about half way between each of the parties' current residences.  Following the Family Consultant giving evidence in the case the mother again changed her proposal so that she now proposes both children will attend N School.

2. The mother in cross-examination was asked questions about her proposal for the children to attend the schools in the eastern suburbs.  She was asked whether she had considered that the children would be attending school which was quite remote from the residences of each parent, the consequence being a difficulty for the children while still quite young to socialise with school friends after school.  The mother's answers to these questions left me with the feeling that she had not seriously thought about the consequences for the children of her proposals.  The mother said she thought the school she had formerly chosen attracted students with a good socio-economic family background.

Whether or not it is in the children's interests for the husband's application, if successful, for them to spend additional time in before and after school care and family day care

1. The father's proposal involved K being in both before and after school care.  It involves H in day care from 8.15 am to 4.45 pm on each week day she is with him.  The mother's proposal would see her father assisting in taking K to school and collecting him from school.  The mother, once she moves to the north side of the harbour, hopes to be able to take K to school herself.  H is cared for by the maternal grandfather during the day.

2. There is merit in each party's proposals.  The evidence does not allow me to conclude that one proposal would be better on balance than the other.  There are many unknowns in each proposal, such as the quality of care, the personality of each child, and the interests of each child.  In 2010 both children will be attending school.

Whether or not it is in the children's interests to have their current week and week about arrangements altered

1. The children have been experiencing the week about arrangements since June 2007.  There has been no complaint by the husband that the children are not coping with the arrangement.  There is no evidence that the children do not like the arrangement.  The father has not told the children he is seeking to change the current arrangement.

2. The Family Consultant supports and recommends the continuation of the week about arrangement for the children.  I will reserve my conclusion on this issue until I have considered the other relevant matters.

Whether or not the husband's proposal for the children to spend less time with their mother indicates a lack of insight on his part

1. The husband submitted this could not represent lack of insight on his part; rather, it demonstrates his ability to assess the needs of the children. The mother submits that the father's proposals demonstrate his lack of appreciation of the mother in the children's lives.  She submits there is evidence to support a conclusion that the father does not see the mother as being of great importance to the children.  Examples of this are his refusal to provide the mother with details of where H had attended day care and his failure to consult the mother before he arranged the day care for H.

2. I could not conclude that the father lacks insight into the children's needs as a generality.  Clearly he attends to many of the children's needs very well, however, I do have reservations about his ability to understand the consequences to the children of his failure to consult with the mother on some important decisions for the children and/or his failure to keep her fully informed about all important aspects of the children's lives.

3. Neither party made any specific submission in relation to s 60CC of the Act.  They each submitted that each important matter they wished to put in relation to the subsections of that section was put in relation to the findings of fact which was sought. 

Relevant Law

1. The principles governing this case are set out in the Family Law Act 1975 (Cth).  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA).  In determining what is in the child's best interests, I must consider certain matters under section 60CC.  Those matters are the "primary considerations" and the "additional considerations" set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:

   FAMILY LAW ACT 1975 - SECT 60B

   Objects of Part and principles underlying it

   (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.

   (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).

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that: “… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

6. Subsection (4) provides as follows: “…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

7. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility. 

Consideration of s 60CC

1. In determining what is in the best interests of K and H I am required to consider the provisions of sub-s (2) and sub-s (3) of section 60CC.  I am required to consider the following primary considerations:

   a)The benefit to the child of having a meaningful relationship with both the child's parents.

   b)The need to protect the child from physical and psychological harm of being subjected to or exposed to abuse, neglect or family violence. 

2. I understand and accept the application of the primary considerations in the determination I am required to make in this case.  I am also required to consider the other subsections of 60CC. 

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parents

1. Each parent submits that whether I maintain the current week about regime or a more restricted regime of time for the children with their mother the children will have a meaningful relationship with each parent. 

The need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. Any orders to be made will have regard to this need.  A consideration of this issue arising when considering the role of the maternal grandmother in the mother's care proposal.

Additional Considerations

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

1. The children are six and four years of age. Any views they have can only be of marginal weight.  No particular view about the arrangements for their care were elicited from K or H by the Family Consultant.

The nature of the relationship of the child with each of the child's parents and other persons including nay grandparents or other relative of the child

1. I accept the assessment made by the Family Consultant that the children love and are attached to both parents.  The children, I accept, have a good relationship with the maternal grandfather and for the majority of time with the maternal grandmother. There is difficulty in the relationship between the children and the maternal grandmother.  K complained to the Family Consultant about aspects of the maternal grandmother's behaviour.

The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. Although being critical of the other's style of parenting both parents have ensured that the orders of the Court have been complied with.  Both seem to recognise the right of the children to have a relationship with the other parent. 

The likely effect of any changes in the child's circumstances

1. During the last 18 months the children have been living in a week about parenting arrangement. It seems they have progressed well in this arrangement.  It is untested how they would react to an arrangement where they spent less time with one parent and more with the other.

The practical and expense of a child spending time with and communicating with parent

1. Given the parties' commitments to each live close to K’s school there should be no practical difficulty in each parent caring for the children or in the changeover of care from one parent to the other.  Until the mother moves the children will have to spend some time travelling to and from school.  This has not been the subject of any complaint by either of the children during the last 18 months.

The capacity of: (i) Each of the child's parents (ii) Any other person including a grandparent to provide for the needs of the child including emotional and intellectual needs

1. This consideration took up some time in the hearing.  The attack was on the mother because she has required/allowed her mother to care for the children.  I refer to those parts of the reasons already given which deal with that matter, otherwise each parent is satisfied with the standard of care provided for the children by the other.

The maturity, sex, lifestyle and background of the child and of either of the child's parents and any other characteristic of the child that the Court thinks are relevant

1. The children are young; they have been cared for by both parents individually during the last 18 months.  There is no special characteristic of the children which requires mention here.

If the child is an Aboriginal child or Torres Strait Islander child

This consideration is not applicable.

The attitude to the child and for the responsibility of the parenthood demonstrated by each of the child's parents

1. This has largely been addressed elsewhere in these reasons.  Subject to the matters already mentioned I consider that since the physical separation in May 2007 the parties have largely demonstrated responsible parenting.  Their arguments in the presence of the children do not demonstrate responsible parenting.

Family violence involving the child or a member of the child's family

1. This has been dealt with earlier in these reasons.  The mother was found guilty of having assaulted the father.  No conviction was entered. 

Any family violence order that applies to the child or a member of the child's family

1. This matter has been dealt with earlier.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. Final orders should be made in this case.

Any other fact or circumstance the Court thinks is relevant

1. Criticism was made of the mother and her inability to ensure K attended school. The mother, in my view, gave a satisfactory explanation for his absences whilst in her care. 

2. S 60CC(4) requires me to consider:

   The extent to which each of the child's parents has fulfilled or failed to fulfil the responsibilities of a parent and in particular the extent to which the child's parents have taken or failed to take opportunity to participate in making decisions about major long term issues, spend time with the child and communicate with the child or has facilitated or failed to facilitate the other parent in those matter.

3. And finally:

   Has fulfilled or failed to fulfil the parent's obligations to maintain the child.

4. These matters have largely been addressed in the reasons so far.  The parties have been able to ensure that the Court orders have been complied with.  There has been difficulty in the parties being able to consider and make decisions about major long term issues.  Neither of the parties is particularly to blame for the circumstance.  I am satisfied that each of the parties has taken every opportunity to spend time with the children as time is available to them and to communicate with the children.

5. The mother's argument and sumbission referred to the arrears of child support.  The evidence is that there is $6000 in arrears of child support.  No explanation was provided by the father as to why those arrears have not been paid.  The mother is now receiving a little under $100 per week as child support and this includes an amount for arrears.  The father allowing the arrears to accumulate in the absence of explanation demonstrates a failure to fulfil a parental responsibility. There is no other matter to be considered under s 60CC(4)(A).

Section 61DA

1. The Family Consultant recommends that the parties have equal shared parental responsibility.  The wife seeks such an order; the husband's application is silent about this topic.  No submission was made by him against the making of an order for equal shared parental responsibility.  The Act provides for the existence of a rebuttable presumption in favour of equal shared parental responsibility.  The resumption is rebutted by a finding of family violence.  In this case the mother was found guilty of assaulting the father.  Notwithstanding that fact I can still make an order for equal shared parental responsibility.

2. The parties' communication is not good; however I find that it is adequate.  The mother has agreed to communicate with the father by email.  The parties previously had a communication book.  Two versions of the book were lost by the mother.  The third's fate is not known.  That method of communication clearly didn't work.  In my view it is for the benefit of the children that there be an equal shared parental responsibility order.  The parties have agreed to attend upon a community based organisation to assist them in better being able to communicate in the future.

S 65DAA

1. Having set out that I propose to make an order for equal shared parental responsibility I now have to consider if it is in the best interests of the children that I make an order for equal time.  The Family Consultant recommends equal time.  It has, in my view, worked reasonably well for the children during the last 18 months.  No evidence convinces me that the children's best interests would be better served by the father's proposal.  I propose therefore to order equal shared time on a week about arrangement as the parties have implemented during the last 18 months.

Conclusion on the Parenting Issues

1. Having considered all the matters set out in these reasons and in the evidence I conclude that the arrangement of equal shared time sought by the mother best suits the current assessed best interests of the children and I propose to so order.

Property

1. There is substantial agreement between the parties about matters of fact in relation to property matters.  As set out earlier exhibit X2 contains agreements between the parties about matters of fact. 

The Balance Sheet

1. Exhibit X3 is an agreed balance sheet.  The only changes to be made relate to the parties’ credit card loans.  Those loans represent the current balances.  The balance of the husband's credit card at separation was $7000.  The balance of the wife's credit card shortly after separation and during the period of separation under the one roof was $9500.  I accept that is probably about the amount of the debt at separation.

2. In the circumstances of the case I consider, to do justice to the parties, the amounts outstanding at separation should be included in the balance sheet and the remainder of the debt taken into account under s 75(2).  Each of the parties have superannuation.  They have agreed the superannuation should be incorporated into the one pool of assets.  The balance sheet is therefore determined by me to be as follows:

   A Street property  $1,025,000

   Wife's superannuation  $ 31, 492

   Husband's superannuation  $54,390

   Wife's car  $4500

   Husband's shares  $4000

   TOTAL  $1,119,382

   Liabilities:

   Mortgage  $288,000

   Line of Credit  $68,000

   Husband's credit card at separation $7000

   Wife's credit card at separation                  $9500

   TOTAL LIABILITIES  $372,500

   NET ASSETS  $746,882

3. At the conclusion of the trial I ordered each party to provide me with a written statement of the contributions each relied upon and a list of relevant s 75(2) matters.  The husband's document so provided is marked as exhibit H4.  I here incorporate that document into these reasons:

   SECTION 79 CONTRIBUTIONS

   1.Husband worked throughout marriage of 8 years and used income for family purposes including support of family, making of mortgage payments, making of payments in respect of Veridian loan and maintenance and preservation of real property. See affidavit of husband sworn 13 June 2008 paragraphs 19 and 20 (the latter in relation to the provision for six years to the husband  of a company car, thereby saving the parties money).

   2.Husband was solely responsible for doing handyman repairs in relation to [D] property (see paragraph 12) and maintaining and improving the gardens of that property (see paragraph 12).

   3.Husband’s contribution as homemaker and parent was significant – see paragraph 15 of affidavit where husband says at time of [K’s] birth he was not working (but had a redundancy payment) and cared for the wife and the new born child. See also paragraphs 16 to 37 of that affidavit as to his contributions, including the homemaking and parenting contributions made by him when the wife was intoxicated (see paragraph 21).

   4.Post separation, the husband made a significant contribution as parent to the children, whereas much of the parenting on the wife’s side has been performed by her father.

   5.Post separation, the husband’s financial contribution must be found to be greater than that of the wife. See paragraphs 38 to 40 of his affidavit where he outlines mortgage payments made, payments of household expenses in respect of himself and the children, including payment of school expenses in relation to [K].

   6.The husband’s shares valued in the Balance Sheet at $4,000 were purchased by him post separation from income earned by him (oral evidence).

   7.The husband’s superannuation contribution during the marriage and post separation must be found to be greater than that of the wife (see the respective Financial Statements of the parties which indicate payments made on behalf of the husband being more than twice those made on behalf of the wife).

   8.The wife’s income from August 2004 to November 2007 was solely from money she made selling items on Ebay. She gives no evidence as to quantum, but the husband at paragraph 13 of his affidavit alleges that she acquired the items she later sold from the party’s line of credit or monies given to her by the husband. He was not challenged as to this evidence.

   SECTION 75(2) MATTERS

   1.Each party is aged 37 years and is in good health.

   2.Implicit in findings invited in relation to section 79 contributions must be a finding that the wife will have greater property than the husband. The wife asserts that she should be entitled to 80% of the party’s property by virtue of section 79, while the husband concedes 65%. This disparity is a relevant section 75(2) matter.

   3.The husband and wife will have either equal care of the children, or the husband greater care depending on the outcome of the parenting proceedings.

   4.Each party has a commitment to support him/herself and the children of the marriage.

   5.The husband is under an obligation to pay child support to the wife, and that is likely to continue.

   6.Each party is able to support him/herself (see party’s Financial Statements).

4. The mother's document provided is marked as M4. I here incorporate that document into these reasons:

   Section 79 Contributions

CONTRIBUTION

EVIDENCE

Rent-free accommodation from February to July 1998

Affidavit of Wife filed 13 June 2008 at paragraphs 6-8

Affidavit of [paternal grandfather] filed 13 June 2008 at paragraphs 4 and 5

Capital financial contributions amounting to $443,482.91 by and/or in behalf of the wife towards the acquisition and/or improvement of the assets of the parties

Exhibit X2

$11,817 by of [sic] redundancy monies received by the wife in January 2003

Page 2 of Exhibit X4

Contributions by the wife towards the maintenance, improvement and upkeep of the [D] property

Husband’s Affidavit filed 19 June 2008 at paragraph 12

Contributions by the wife’s father towards the improvement of the [D] property

Husband’s Affidavit filed 19 June 2008 at paragraph 13

Contribution of all income derived during the parties [sic] relationship

Exhibit X5

Major homemaker/parent contribution

Wife’s Affidavit filed 13 June 2008 at paragraph 29

Also consistent with the husband’s own evidence of his work commitments during the marriage

Post-separation parenting contribution

The wife has had equal care of the children to the husband and has performed her role in caring for the children with the assistance of her parents (oral evidence)

SECTION 75(2) MATTERS

RELEVANT FACTOR

EVIDENCE

The husband’s income is almost twice that of the wife. There is no suggestion that the [sic] will have the capacity to earn as the husband does

Parties’ respective Financial Statements

As a result of the husband’s greater income, the husband’s superannuation is likely to increase in value at a much greater rate than that of the wife’s superannuation

On the wife’s application, the parties will have the equal care of the children

The husband has not fulfilled his obligation to pay child support resulting in the accumulation of arrears of almost $7,000

Husband’s Financial Statement

Each of the parties will have an ongoing commitment to support himself/herself and the children during periods the children are in their respective care

The husband has the benefit of occupation of the former matrimonial home since separation in May 2007 in circumstances where the wife has made numerous requests to have the property sold

Husband’s Affidavit filed 19 June 2008 at Annexure C. Parties’ oral evidence

1. With the exception of point 4 under the heading “Section 79 Contributions” in exhibit H4 I accept the submissions made by the husband.  In relation to point 4 I do not accept "much of the parenting on the wife's side has been performed by her father".  It is true that the husband collected the children from after school care and day care at a time earlier than the wife was able to get home from work to participate in the care of the children while they were in her care. However, she was at work earning money to help support the children and as such was making a contribution.

2. Further, it is true that the maternal grandfather cared for H during the day.  The father on the other hand had her cared for during the day in day care.  I find that some of the care provided in the mother's time with the children was provided for by her father.  I accept that this arose as a result of financial circumstances and a preferred arrangement for care for H as the mother saw it.  The mother's contributions are set out in M4.  I accept she is able to rely on the contributions she has set out therein.  

Assessing and Weighing the Contributions

1. Each party in their submissions acknowledged that the wife's contributions should be seen as superior to those of the husband because of the gifts made by the wife's parents.  The husband acknowledged that but for the gifts of the wife's parents the parties could not have acquired the property at D.  The inheritance received by the wife enabled the parties to reduce/discharge debt on the D property.  The husband acknowledged that if it were not for the gift from the wife's parents the parties would not have been able to buy the A Street property.

2. During the cohabitation the parties worked.  There was time off work for the wife to have the children.  The husband received a redundancy payment at one stage.  It seems probable that the husband's income was greater than the wife's during the cohabitation.  The car retained by the wife post separation was purchased with the Viridian loan money.  The shares held by the husband were acquired post separation.  It was submitted by the husband that absent the contributions made by the wife through her inheritance and gifts from her parents, the contributions of the parties to the date of physical separation, should be assessed as equal.

3. I agree with that submission.  The husband then submitted that given the payments made by him post separation (particularly the mortgage) his contributions should be assessed as higher than those of the wife at the date of the trial. 

4. The wife submitted the financial contributions by the wife through her inheritance and gifts from her parents amounted to $455,000.  My calculation is slightly less than that, around about $429,000.

5. There were also contributions made by the wife's father to the improvements of the D property.  I note the financial contributions from the wife's parents and her inheritance represent 57 per cent of the equity on the balance sheet.  It was submitted that the parties' contributions from the date of separation to the date of trial were equal; that submission being made by the wife. 

6. Overall the husband submitted I would assess the wife's contributions at 65 per cent, whereas the wife submitted her contributions should be assess at 80 per cent. 

7. The cohabitation was eight years.  The wife submits this should be regarded as a short marriage.

Conclusion

1. There is no doubt the contributions from the wife's parents, together with her inheritance, were massive capital contributions by comparison to the other capital contributions of the parties.  The parties' incomes, it seems, basically supported them and met outgoings on the properties they acquired.  The husband admits that without those contributions made by the wife the parties would not have been able to buy the two properties.  That does not mean, however, that they would not have been able to have bought a property for their home in the eight year period. I do accept, however, that their equity would be far more modest than that they presently enjoy.  It is a difficult exercise to balance all the various types of contributions in this case without being seen to undervalue one category of contribution.  Doing the best I can I determine that the contributions favour the wife 72.5 per cent and 27.5 per cent to the husband.  In so determining I do consider the husband's contributions post separation to have exceeded those of the wife. 

Section 75(2)

1. Both parties submitted that after considering the matters relevant under s 75(2) I would not make any adjustments.  Both parties in their documents, M4 and H4 made further submissions about 75(2).  I find the matters to be considered are as follows:

The superior outcome in favour of the wife based on the assessment of contribution 

1. The wife will receive $541,489 of the equity and the husband will receive $205,393.

2. The husband has had occupation of the former matrimonial home from May 2007 to the exclusion of the wife.  The wife has had the benefit of being able to live with her parents.  Both parties have had to support the children in varying degrees since the physical separation.  The husband's income currently being received is significantly higher than that of the wife and will probably be so into the foreseeable future.

3. The husband's ability to build future superannuation appears greater than the wife because of his superior earning capacity.  Each of the parties will have the care of the children into the future.  At this time the parties will have equal time in that care.  The father has been assessed to pay child support and he will probably have to pay child support into the future. Neither party is in receipt of a pension or government means tested benefit.  Each of the parties has significant debt on credit cards which has not been taken into account on the balance sheet.  The husband's current debt is $30,500 and the wife's $19,000.

Conclusion

1. Having regard to all the above matters I agree with the parties' submissions that there should be no further adjustment.

Orders

1. The parties agree the property is to be sold.  I have not been advised of any sale costs. I will therefore have to consider the value on the balance sheet as the net sale proceeds.  The wife is to receive $541,489 of the net assets and she has $35,992 of assets in superannuation in the balance sheet.  She keeps $9500 in debt.  Her net benefit therefore retained is $26,492.  The wife will have to receive $514,997 of the sale proceeds of the property (its net equity). 

2. The property has a value of $1,025,000 which I am treating as the net sale value after the payment of real estate agent's commission, legal costs and normal adjustments.  The mortgage is $288,000 and the Viridian Line of Credit $68,000. The parties should therefore clear, after sale and payment of those liabilities, $669,000.  The wife's percentage share of that fund will be 514,997 over 699,000 times a hundred which equals 77 per cent.

1. An order will have to be made for the sale of the former matrimonial home and after meeting sale expenses and discharging the mortgage and Viridian loan, 77 per cent of the balance goes to the wife and the balance thereafter to the husband.  The husband should have occupation of the property pending sale and he should pay the mortgage, the Viridian loan and outgoings on the property during that time. 

Just and Equitable

1. In the circumstances of this case I find that outcome just and equitable.  

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  19 March 2009