Franklin & Franklin

FAMILY COURT OF AUSTRALIA

FRANKLIN & FRANKLIN

[2009] FamCA 77

FAMILY LAW – CHILDREN – with whom children should live – where husband is seeking week and week about – where husband has denied nature of new relationship before trial and therefore children had limited exposure to husband’s living arrangements - where wife has unilaterally relocated – with whom children should spend time - whether orders should be made on the basis that the husband may relocate – given uncertainties surrounding relocation no orders made for that eventuality – where wife has made all major decisions concerning the children and sought to control the husband’s involvement in the children’s lives – parents to have equal shared parental responsibility – children to continue to live with the wife but spend time and communicate as much as possible with the husband

FAMILY LAW – PROPERTY SETTLEMENT –where husband had jointly purchased properties with partner – whether husband should be treated as only having half interest in those properties or whether entire net equity should be credited to him – whether the value of the husband’s joint property should be included as purchased after the date that the wife’s business was valued – husband has made no financial contribution to the children since separation – where this is unlikely to change – assets divided in line with contributions, no adjustment for 75(2) factors – 67.5%/32.5% in wife’s favour

FAMILY LAW – PROPERTY SETTLEMENT– add backs – whether to include husband’s business debts collected and retained by partner - whether wife’s paid legal fees should be added back where there is no evidence of husband’s fees

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79

Forck & Thomas (1993) FLC 92-372
H & H (1995) FLC 92-599
Padgen & Padgen (1991) FLC 92-231
G & G (2000) FamCA 12
Coghlan & Coghlan (2005) FLC 93-220
Gould & Gould (1996) FLC 92-657
Tomasetti & Tomasetti (2000) FLC 92-023
Waters & Jurek (1995) FLC 92-635
JEL & DDF (2001) FLC 93-075
Phillips & Phillips (2002) FLC 93-104

APPLICANT:

Mr Franklin

RESPONDENT:

Ms Franklin

FILE NUMBER:

DNF

225

2005

DATE DELIVERED:

9 February 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Strickland J

HEARING DATE:

24-28 September 2007

1-4 October 2007
14 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Black

SOLICITOR FOR THE APPLICANT:

Cecil Black Solicitors

COUNSEL FOR THE RESPONDENT:

Mr D Berman

SOLICITOR FOR THE RESPONDENT:

Angela Ferdinandy & Associates

Orders

Children’s Issues

That the parties have equal shared parental responsibility for the children B born … May 1993 and N born … January 1996.
That the said children live with the wife.
That the said children spend time with the husband as follows:
(a)In 2009 and in each alternate year thereafter:
(i)for all of the April and September/October school holidays;
(ii)for one half of the July school holidays;
(iii)for the first half of the Christmas school holidays;
(iv)during each school term in Adelaide at times to be agreed between the parties but in any event on no less than three separate occasions (subject to the availability of the husband) and PROVIDED THAT the husband gives to the wife at least three weeks prior written notice of his intention to spend time with the children;
(v)at such other times as may be agreed between the parties.
(b)In 2010 and in each alternate year thereafter:
(i)for one half of the April and September/October school holidays;
(ii)for all of the July school holidays;
(iii)for the second half of the Christmas school holidays;
(iv)during each school term in Adelaide at times to be agreed between the parties but in any event on no less than three separate occasions (subject to the availability of the husband) and PROVIDED THAT the husband gives to the wife at least three weeks prior written notice of his intention to spend time with the children;
(v)at such other times as may be agreed between the parties.
That for the purposes of the said children spending time with the husband the wife do pay the costs of return air fares for the children prior to the commencement of each school holiday period and the husband do pay the travel costs in relation to all other occasions of time spent with him.
That the wife facilitate the said children and the husband being able to communicate with each other by telephone and email as often as they wish.
That when the said children are spending time with the husband he facilitate the said children being able to communicate by telephone and email with the wife as often as they wish.
That apart from when the said children travel to and from Darwin, wherever possible handovers for the purposes of the said children spending time with the husband take place at the school or schools attended by the said children and at all other times at the home of the wife.
That each party is at liberty to take the said children away from Darwin or Adelaide, as the case may be, either interstate or overseas during any occasion when the said children are living or spending time with that party upon the following conditions:
(a)that at least four weeks prior written notice of the intended travel is given to the other party;
(b)that at least two weeks before the intended travel a detailed itinerary together with a mobile phone number on which the said children can be contacted whilst away is provided to the other party.
That for the purposes of any overseas travel by the said children each party do all such things and sign such documents as shall be necessary to obtain and/or renew passports for the said children and to facilitate that travel, PROVIDED THAT the passports of the said children shall remain with the wife except when the children are travelling overseas with the husband.
That the parties be restrained and an injunction is granted restraining each of them from denigrating the other of them or allowing any other person to do so in the presence of the said children or either of them.
That the husband be at liberty to visit the school or schools attended by the said children from time to time to speak to the said children and to the teachers.
That the husband be at liberty to attend any school event, activity or function to which parents are usually invited.
That forthwith the wife authorise the school or schools attended by the said children to send to the husband copies of all school reports, newsletters and notices.
That each party notify the other forthwith of any illness, medical emergency or hospitalisation that occurs in relation to the said children or either of them.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

Financial issues

That within eight weeks of the date hereof the wife do pay to the husband’s solicitors trust account on behalf of the husband the sum of FOUR HUNDRED AND EIGHTY FIVE THOUSAND THREE HUNDRED AND TWO DOLLARS [$485,302.00].
That the husband do retain for his sole use and benefit absolutely all of his interest in Franklin Pty Ltd, H Pty Ltd, the Franklin Family Trust, AF Pty Ltd, the AF Unit Trust, AF (Darwin) Pty Ltd, and the AF (Darwin) Unit Trust (“the entities”), and that:
(a)the wife do resign from any office held by her in any of the entities;
(b)the husband do all such acts and things and sign such documents as may be necessary to register and implement the wife’s resignation;
(c)the wife do transfer to the husband all her shareholding and/or other interests, if any, in any of the entities;
(d)the wife do execute all such documents as shall be necessary to give effect thereto;
That the husband do indemnify the wife and procure the trustee for the time being of any of the entities to indemnify the wife, and keep her forever indemnified with respect to;
(a)all debts and liabilities of the husband past, present and future;
(b)all debts and liabilities of the entities past, present and future;
(c)all chose in action against the husband or any of the entities;
(d)all choses in action against the wife arising out of her position as a director and/or secretary of any of the entities;
(e)any liability of the wife in respect of any guarantee(s) executed by the wife in support of borrowings, debts and liabilities of the husband and any of the entities including but not limited to a guarantee executed by the wife in favour of the National Australia Bank;
(f)all income tax, capital gains tax, GST or other taxation liabilities due by the husband and/or any of the entities and/or due by the wife arising out of income allocated to her from any of the entities;
(g)any debit loan account due by the wife to any of the entities.
That the wife do forthwith transfer to the husband all of her interest, if any, in any of the entities and that the husband do pay, discharge and indemnify the wife against all capital gains tax and other liabilities arising out of or incidental to the said transfer.
That forthwith the parties do all such acts and things and sign all such documents and equally pay any costs associated therewith as may be necessary to equally divide between the parties and transfer to each party respectively the jointly owned ANZ shares.
That the wife do retain as her sole property absolutely free of any claim, right, interest, demand or entitlement of the husband the following:
(a)the property situated at Darwin;
(b)the property situated at Alice Springs;
(c)her shares in public companies and her investments;
(d)her Subaru Liberty motor vehicle;
(e)all her interest in CN Pty Ltd, PC Pty Ltd, and the PC Trust;
(f)her savings;
(g)her furniture and effects;
(h)her superannuation and work entitlements;
(i)her insurance including life insurance;
(j)and all other assets in her possession or under her control.
That the husband do retain as his sole property absolutely free of any claim, right, interest, demand or entitlement of the wife the following:
(a)his interest in the properties situated at U1, U2 and W;
(b)his Ford Fairlane and Nissan Maxima motor vehicles;
(c)all his interest in the entities referred to in paragraph (17) hereof including his loan account;
(d)his savings;
(e)his shares in public companies and his investments;
(f)his furniture and effects;
(g)his superannuation and work entitlements;
(h)his insurance including life insurance;
(i)and all other assets in his possession or under his control.
That the husband indemnify the wife in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debt or liabilities incurred in his sole name.
That the wife indemnify the husband in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debt or liabilities incurred in her sole name.
That hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted before and by them.
That each party be restrained from pledging the credit of the other.
That the wife make all the payments required pursuant to the mortgage secured over the title to the property situated at Darwin and pay all rates, taxes, insurance premiums, and any other assessments, fees or charges payable in relation to the said property, and the wife indemnify the husband and keep him indemnified against all such payments.
That in the event of the wife failing to comply with paragraph (16) hereof then the said property at Darwin be sold upon such terms and conditions as the parties may agree and in default of agreement as determined by this Honourable Court, and from the net proceeds of sale the husband receive such sum as shall then be outstanding pursuant to paragraph (16) hereof together with interest thereon calculated at the rate fixed by the Family Law Rules 2004, and the wife receive the balance.
That each party have liberty to apply for consequential orders in relation to financial issues.
That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNF 225 OF 2005

MR FRANKLIN

Applicant

And

MS FRANKLIN

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for property settlement and parenting orders. The parenting orders relate to the parties’ children B born in May 1993 and N born in January 1996.
The husband filed a Further Amended Application for Final Orders on 31 October 2006. However, at the time of trial the husband sought the following parenting orders:
“Previous orders
1)That all current orders shall be discharged.
Equal shared parental responsibility
2)That the Father and Mother shall have equal shared parental responsibility for [B] who was born on […] May 1993 and [N] who was born on […] January 1996.
Relocation
3)That unless the parents otherwise agree, the Mother be permitted to relocate [the children] to Adelaide during the school holidays at the completion of schooling in 2009, at such time as is agreed between the parties, but in default of agreement on 01 January 2010.
Residence
4)That unless the parents otherwise agree, during school term, [the children] shall live with each of the father and mother on a week about basis.
5)That unless the parents otherwise agree, should the father choose to remain in Darwin after the children are relocated to Adelaide by the Mother, [the children] shall live with the Mother and order numbered 4 shall be discharged until such time as the father moves to Adelaide to live and thereupon order numbered four shall be reinstated.
6)That unless the parents otherwise agree, whilst the children remain in Darwin, during school holidays:
a)[The children] shall live with the Father for the holidays at the completion of the first term in 2008, and for the holidays at the completion of the third term in 2009, with the Mother for the holidays at the completion of the third term in 2008, and for the holidays at the completion of the first term in 2009.
b)[The children] shall live with the Father for the second half of the holidays at the completion of the second term in 2008, and for the first half of the holidays at the completion of the fourth term in 2009, and with the Mother for the first half of the holidays at the completion of the second term in 2008, and for the second half of the holidays ay the completion of the fourth term in 2009.
7)That is the parents otherwise agree [sic], should he not move to Adelaide, upon relocation of the children to Adelaide:
a)[The children] shall spend time with the Father for the first half of each of the school holidays at the completion of the first term, third term and fourth term in each year ending in an even number, and for the second half of the first term, third term and fourth term in each year ending in an odd number.
b)[The children] shall spend time with the father for the whole of the weekend of the school holidays at the completion of the second term in each year.
c)[The children] shall spend up to one week with the father in each school term in Adelaide and on any weekend, during which the father may be in Adelaide.
Additional Time with the Parents
8)That unless the parents otherwise agree, [The children] shall spend additional time with the Father and Mother on such occasions as the children and them are in the same city or town to permit this to happen, and during such periods as is agreed between the parents, but in default of agreement:
a)For Christmas Eve, and Christmas Day, and Boxing Day:
i)   With the Father from 5:00pm on Christmas Eve until 2:00pm on Christmas Day in each year ending in an even number, and from 2:00pm on Christmas Day until 5:00pm on Boxing Day in each year ending in an odd number; and
ii)   With the Mother from 5:00pm on Christmas Eve until 2:00pm on Christmas Day in each year ending in an odd number, and from 2:00pm on Christmas Day until 5:00pm on Boxing Day in each year ending in an even number.
b)For Easter;
i)   With the Father from 5:00pm on the Thursday before Easter until 5:00pm on Easter Saturday in each year ending in an even number, and from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in each year ending in an odd number; and
ii)   With the Mother from 5:00pm on Easter Saturday until 5:00pm Easter Monday in each year ending in an even number, and from 5:00pm on the Thursday before Easter until 5:00pm on Easter Saturday in each year ending in an odd number.
c)For Mother’s Day, with the Mother from 5:00pm on the day before until 5:00pm on that day.
d)For Father’s Day, with the Father from 5:00pm on the day before until 5:00pm on that day.
e)For each of the Children’s birthdays, with the parent with whom the children are not otherwise living from 12 noon until 5:00pm on a day when the children are not attending school, and from after school until 5:00pm on a day when the children are attending school.
f)For the Father’s birthday, with the Father from 12 noon until 5:00pm on a day when the children are not attending school, and from after school until 5:00pm on a day when the children are attending school.
g)For the Mother’s birthday, with the Mother from 12 noon until 5:00pm on a day when the children are not attending school, and from after school until 5:00pm on a day when the children are attending school.
Holidays
9)That each of the Mother and Father shall be permitted to take [the children] away from Darwin or Adelaide on (as the case may be) on [sic] during any occasion that they are living with that parent during school holidays, upon the following conditions:
a)That notification shall be given to the other at least two weeks prior to departure.
b)At that time of notification, that Parent shall also provide to the other, a general itinerary of the travel.
c)At least seven days prior to departure, that Parent shall also provide to the other flight details.
d)Prior to departure, that Parent shall also provide to the other, a mobile telephone number on which [the children] may be contacted whilst away.
e)In the event that there is a material change in the travel itinerary, that Parent shall forthwith notify the other of that change.
Communication with
10)That each of the Father and the Mother shall be permitted to communicate with [the children] at any reasonable time, and by what method that parent wishes when [the children] is [sic] with the other parent.
11)That each of the Mother and the Father shall ensure that [the children] has [sic] privacy during any communication with the other parent, when the children are old enough to be able to communicate with the other parent in private.
Contact details
12)That each of the Father and the Mother shall keep the other informed of where [the children] is [sic] living and a telephone number at which he/she can communicate with [the children], during the time [the children] is [sic] with that parent, and notify all changes in those contact details within 48 hours of such change.
13)That each of the Father and the Mother shall immediately notify the other of any illness or any emergency involving [the children].
14)That each of the Father and the Mother shall provide to the other as soon as possible, copies of all document received by that parent, which impacts upon the health and well-being and education of [the children].
Handover
15)That unless the parents otherwise agree, until such time as the children are relocated to Adelaide, and in the event that the father also moved to Adelaide, handover shall occur during the school term on each Wednesday at the commencement of school, should that be a school day or 5:00pm in the event it is a non school day.
16)That unless the parents otherwise agree, for the purposes of handover for the school holidays, those holidays shall be deemed to commence at the completion of school on the last day of each term, and conclude at the recommencement of school on the first day of the next school term.
17)That unless the parents otherwise agree, for the purposes of handover during school holidays that shall occur at 5:00pm on the completion of the first half of those holidays.
Injunctions
18)That each of the Father and the Mother shall be restrained from denigrating the other.
19)That each of the Father and the Mother shall be restrained from permitting any person to denigrate the other or discuss this matter, in the presence of [the children], and in the event that denigration or discussion does occur which that parent is unable to stop, that parent shall forthwith remove [the children] from the presence of that denigration or discussion.
20)That each of the Father and the Mother shall be restrained from discussing this matter, in the presence of [the children] except as required by a family consultant, medical practitioner, psychologist, counsellor or social worker.
The Relocation
21)That the Mother shall give to the Father four weeks prior notice of her intention to relocate.
The ongoing relationship between the children and the parents
22)That within 14 days the Father and the Mother shall jointly commission [Ms K] a child psychologist from Darwin, or in the event she is unavailable another child psychologist chosen by them or in the event of that they are unable to reach agreement, one nominated by the Manager Dispute Resolution Services of the Family Court in Darwin or in Adelaide (should the time the parents be living in Adelaide) for the purposes of monitoring the ongoing well-being of [the child N].
23)That each of the Father and the Mother shall within a reasonable time act in accordance with the reasonable requests of [Ms K] or such other child psychologist as is referred to in the preceding paragraph including but not limited to undertaking all such courses, and attending such activities as are recommended by [Ms K] or that other child psychologist.
24)That in the event a dispute arises between them, the Father and the Mother shall endeavour to resolve that dispute with the assistance of [Ms K] or such other child psychologist as is referred to herein.”
The husband sought the following orders with respect to property settlement:
“Preamble
1)That this is order [sic] to which Section 81 of the Family Law Act applies with the intention of finally determining a property settlement between the Father and the Mother and to avoid further proceedings between them in relation to property.
Property
2)That the Wife shall within 28 days, sign all documents and do all acts and things required to transfer to the Husband at her expense the whole of her right title and interest in respect of the property at [Alice Springs] NT and the furniture and household effects contained in that property (hereinafter referred to the “[Alice Springs] property”.
3)That upon her relocation to Adelaide, the Wife shall sign all documents and do all acts and things required to transfer to the Husband at her expense the whole of her right title and interest in respect of the property at […] Darwin and the furniture and household effects contained in that property (hereinafter referred to as “[Darwin] property”.
4)That pending the transfer of the [Darwin] property, the Wife shall in respect of that property, pay all instalments that are due under the mortgage, pay all outgoings, and maintain the property in good condition, fair wear and tear excepted.
5)That the Wife shall forthwith, sign all documents and do all acts and things required to transfer to the Husband, the whole of her right title and interest in the jointly owned ANZ Banking shares.
6)That the Wife shall forthwith, sign all documents and do all acts and things required to transfer to the Husband, the whole of her right title and interest in [H] Pty Ltd, and [Franklin] Pty Ltd.
7)That the Wife shall forthwith, sign all documents and do all acts and things required to transfer to the Husband, the whole of her right title and interest in any monies due to her under the [Franklin] Family Trust.
8)That within one month, the Wife shall pay to the Husband (such amount as is required to effect a 45% distribution in favour of the husband of the pool of assets and superannuation.
Superannuation
9)That the Husband shall retain the legal and beneficial ownership of his superannuation with MLC Superannuation.
General
10)That unless otherwise specified and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
a)   Each party shall be entitled to all property (including choses-in action) in the possession of such party as at the date of these orders;
b)      Each party shall forgo all claims he/she may have to any superannuation or work related benefits belonging to or earned by the other;
c)     Life assurance policies shall remain and/or become the sole property of the life assured named therein;
d)    Each party shall be solely liable for and indemnify the other against all liability of whatsoever kind and nature and howsoever arising, encumbering any item of property to which that party is entitled pursuant to these orders; and
e)    All joint tenancies shall be expressly severed.
11)That the Husband and the Wife shall execute all documents and do all acts and things necessary to give validity and operation of this order and in the event of a party refusing or neglecting to execute such document or to do any such act or thing;
a)   A Registrar of the Court is appointed to execute such document and to do such act or thing in the name of the defaulting party; and
b)   The party in default shall pay all reasonable solicitor/ client costs on an indemnity basis incurred by the other party for the purposes of enforcing this order.

At trial the wife sought the following orders, as outlined in her Further Amended Response to an Application for Final Orders filed 18 May 2006:
“1.That the children [B] born on […] May 1993 and [N] born on […] January 1996 do reside with the wife.
2.That the wife do have the sole responsibility for making all long term and day to day decisions in relation to the care welfare and development of the said children.
3.That the wife have liberty to relocate the residency of the children to Adelaide in the State of South Australia as and from 1^st January 2007.
4.That pending relocation the wife do give and the husband do have contact to the said children as follows: -
(a)From 3:30pm on the Friday to 5:00pm on the Sunday of each alternate weekend commencing on 15 October 2005;
(b)For one week in each of the April and October school holidays from 8:30am on the first Saturday of such school holidays until 8:30am on the following Saturday or at such other times as may be agreed between the parties and in default of agreement as Ordered by the Court PROVIDED THAT the husband do give to the wife at least three weeks prior written notice of his intention to take such contact or portion thereof.
(c)For the first two weeks of the Christmas school holidays in each alternate year commencing in December 2005 from 8:30am on the first Saturday thereof to 8:30am on the third Saturday thereof PROVIDED THAT the husband do give to the wife at least three weeks prior written notice of his intention to take such contact or portion thereof.
(d)For the last two weeks of the Christmas school holidays in each alternate year commencing in January 2007 from 8:30am on Saturday and concluding at 8:30am on the Saturday prior to the commencement of school term PROVIDED THAT the husband do give to the wife at least three weeks prior written notice of his intention to take such contact or portion thereof.
(e)By telephone on three occasions per week between the hours of 6:30pm and 7:00pm each Tuesday, Thursday and Saturday with the husband to telephone the children on their landline number and if unavailable on the wife’s mobile number.
(f)At such further or other times as may be agreed between the parties and in default of agreement as ordered by the Court.
5.That subsequent to relocation the wife do give and the husband do have contact to the said children as follows: -
(a)For one week in each of the April and October school holidays from 8:30am on the first Saturday of such school holidays until 8:30am on the following Saturday for the entire term of the June SA school holidays and for three weeks in the Christmas school holidays or at such other times as may be agreed between the parties and in default of agreement as Ordered by the Court PROVIDED THAT the husband do give to the wife at least three weeks prior written notice of his intention to take such contact or portion thereof and that the wife do pay the cost of return airfares for the children prior to the commencement of each holiday contact period.
(b)In Adelaide during term time, upon the husband giving to the wife four weeks written notice of his intention to take contact provided that such contact does not exceed three consecutive nights per visit and three occasions per term.
(c)By telephone on three occasions per week between the hours of 6:30pm and 7:00pm each Tuesday, Thursday and Saturday with the husband to telephone the children on their landline number and if unavailable on the wife’s mobile number.
(d)At such further or other times as may be agreed between the parties and in default of agreement as ordered by the Court.
6.That for the purposes of giving and taking contact the wife do deliver the children to the BP service station […], Darwin, Northern Territory.
7.That all contact be conditional upon the husband personally supervising the children during contact at all times and conditional upon the husband absenting himself from employment whenever contact occurs during any period which coincides with his employment.
8.That all weekend contact be suspended during school holidays.
9.That the husband do inform the wife prior to the commencement of contact of the address at which the children will be sleeping overnight.
10.That the husband do allow the children to telephone the wife during contact on any occasion they wish to do so.
11.That the wife be at liberty to telephone the children on three occasions per week between the hours of 6:30pm and 7:00pm Tuesday, Thursday and Saturday during school holiday contact.
12.That the wife be at liberty to telephone the children during weekend contact on Saturday between the hours of 6:30pm and 7:00pm.
13.That the husband be restrained and injunctions be granted restraining the husband from: -
(a)residing within a 5km radius of the wife’s residence at [Darwin] or any other premises in which the wife shall reside from time to time;
(b)extending the lease at [L Street, Darwin] or extending any lease of premises within a five kilometre radius of the wife’s residence at [Darwin] and that the husband do forthwith vacate the premises at [L Street, Darwin];
(c)approaching or remaining in the vicinity of the wife’s home at [Darwin];
(d)approaching or remaining in the vicinity of any premises occupied by the wife for the purposes of employment;
(e)contacting or communicating with the children by any means other than in accordance with the order for contact.
(f)communicating with the wife other than: -
(i)   by email during normal office hours; or
(ii)    in the event of an emergency;
(g)providing the children with a mobile phone;
(h)…
(i)making or endeavouring to make arrangements directly with the children for contact or any matter involving their day to day or long term care, welfare and development;
(j)allowing the children to :-
(i)   ride on any motorcycles or off road recreational motor vehicles; and
(ii)have access to lethal weapons of any nature.
(k)denigrating the wife or allowing any other person to do so in the presence of the children;
(l)assaulting, harassing, abusing, stalking or in any way intimidating the wife;
(m)discussing these proceedings with the children or in the presence of the children;
(n)discussing contact issues with the children or in the presence of the children;
(o)relaying messages to the wife through the children.
(p)That the husband be at liberty to visit at the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
14.That the wife be at liberty to take the children on an overseas holiday each year at such times as she may in her absolute discretion determine for a period of six (6) weeks per annum and that the husband do all such acts and things and sign such documents as shall be necessary to obtain and/or renew the children’s passports which shall remain in the possession of the wife at all times.
15.That the husband do forthwith inform and notify the wife in the event that the children suffer from any illness or medical emergency during contact.
16.That in full and final settlement of all claims that either party may have against the other now or at any time in the future for settlement of property: -
(a)The husband do retain for his sole use and benefit absolutely all of his interest in [Franklin] Pty Ltd, [H] Pty Ltd, the [Franklin] Family Trust, [AF] Pty Ltd, the [AF] Unit Trust, [AF] (Darwin) Pty Ltd and the [AF] (Darwin) Unit Trust (“the entities”); and that
(i)The wife do resign from any such office held by her in the entities;
(ii)The husband do all such acts and things as may be necessary to register and implement the wife’s resignation;
(iii)The wife do transfer to the husband all her shareholding and/or other interest, if any, in the entities;
(iv)The wife do execute all such documents as shall be necessary to give effect thereto.
(b)The husband do indemnify the wife and procure the Trustee for the time being of the entities to indemnify the wife, and keep her forever indemnified with respect to:-
(i)All debts and liabilities of the husband past, present and future;
(ii)All debts and liabilities of the entities past, present and future;
(iii)All chose in action against the husband, the entities.
(iv)All choses in action against the wife arising out of her position as a director and/ or secretary of or the entities;
(v)Any liability of the wife in respect of any guarantee(s) executed by the wife in support of borrowings, debts and liabilities of the husband and the entities including but not limited to a guarantee executed by the wife in favour of the National Australia Bank;
(vi)All income tax, capital gains tax, GST or other taxation liabilities due by the husband and/or the entities and/or due by the wife arising out of income allocated to her from any of the entities;
(vii)Any debit loan account in or any sum or sums due by the wife to the entities.
(c)The wife do transfer to the husband all of her interest, if any, in the entities and that the husband do pay, discharge and indemnify the wife against all capital gains tax and other liabilities arising out of or incidental to the said transfer.
(d)The husband do forthwith procure a discharge of dealing number […] with respect to [the Alice Springs property] and in default thereof or in default of any obligation of the husband pursuant to paragraph 14(b) hereof the assets of the husband be sold to the extent required to discharge the liability and the balance thereof be paid to the husband.
(e)The husband do transfer to the wife all of his interest in the ANZ shares jointly held by the parties within thirty days from the date of this Order and that the husband do pay capital gains tax, stamp duties and other levies and charges arising in respect of the said transfer provided that the wife do hold the share or such other investments in substitution for the shares on trust for the children in equal shares as tenants in common to vest upon the youngest child attaining the age of 21 years.
(f)The wife do otherwise retain for her sole use and benefit absolutely: -
(i)The property situate at [Darwin];
(ii)The property situate at [Alice Springs];
(iii)Her Subaru liberty motor vehicle;
(iv)All of her interest in [CN] Pty Ltd, [PC] Pty Ltd and the [PC] Trust;
(v)Her savings;
(vi)Her shares and investments;
(vii)Her motor vehicle;
(viii)Her furniture and effects;
(ix)Her superannuation and work entitlements;
(x)Her insurance including life insurance;
(xi)All claims for compensation and damages other than against the husband;
(xii)and all other assets in her possession or under her control;
free from any claim by the husband
(g)That the husband do otherwise retain for his sole benefit the following property, assets and resources: -
(i)His interest in the entities;
(ii)His savings;
(iii)His investments;
(iv)His motor vehicle;
(v)His furniture and effects;
(vi)His real property;
(vii)     His superannuation and work entitlements;
(viii)His life insurance;
(ix)All claims for compensation or damages other than against the wife;
(x)and all other assets in his possession or under his control;
free from any claim by the wife.
(h)That the husband indemnify the wife in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in his sole name.
(i)That the wife indemnify the husband in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in her sole name.
(j)That hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted for and by them.
(k)That each party be restrained from pledging the credit of the other.
(l)That if either party shall make default in the due compliance the party in default shall pay the costs of the other part [sic] reasonably incurred in relation to such default.
17.For such further or other orders as this Honourable Court deems fit.”
In opening Mr Berman, counsel for the wife indicated that in lieu of paragraph 4(a) of the orders sought by the wife his client now sought that the interim order of 25 November 2005 continue, namely that the time spent on alternate weekends be from the conclusion of school on the Friday until the commencement of school on the Monday, and the children also spend one school night every alternate week with the husband. Further, Mr Berman indicated that paragraph 13(a) should be changed from 5 kilometres to 1 kilometre, and paragraph 13(b) was no longer pursued.
During the wife’s cross-examination Mr Berman advised that the wife no longer sought an order in terms of paragraph 5(c), and the wife herself indicated that paragraph 12 could be “struck out” and that she now had no objection to the husband attending at the children’s school at any time to be able to see the children or talk to the teachers. In other words, she no longer sought an order strictly in terms of paragraph 13(p).
On 10 July 2008 the wife filed an Application in a Case seeking “leave to call further evidence in relation to the issue of relocation”. At that time the husband and his partner ms M had moved temporarily to live in Adelaide whilst Ms M received treatment for cancer, and the wife and the two children had also moved to live in Adelaide, but on a proposed permanent basis.
On 28 August 2008 I granted leave to both parties to lead further evidence, and I made orders for the filing of affidavits setting out the evidence and the final orders that each party then sought. The wife filed her affidavit on 23 September 2008 and the husband filed his affidavit effectively on 6 October 2008. The husband’s affidavit was annexed to an affidavit of his solicitor filed on that date.
On 14 October 2008 the husband was cross examined by the wife’s counsel and I heard submissions as to the further evidence presented by each party and in relation to the orders that they each then sought.
Importantly, as a result of the change in circumstances there is no longer any issue about relocation of the children. It is accepted by the husband that they are living in Adelaide and that they will remain there.
On that basis the parenting orders sought by the husband are now as follows:
10.1In the event that he resides in the Northern Territory:
10.1.1“The parents have equal shared parental responsibility for the two children.”
10.1.2“That the children live with the husband for all of the April and October school holidays, and for one half of the July school holidays and for one half of each of the Christmas school holidays from 9:00am on the Saturday prior to the commencement of the holiday to 5:00pm on the Sunday prior to the commencement of school, inclusive of travelling time, with the cost of airfares to be shared between the parties.”
10.1.3“That the husband have contact with the children in Adelaide for the whole of his time in Adelaide on any other occasion upon giving the wife 7 days prior notice.”
10.2In the event that he resides in Adelaide:
10.2.1That there be orders in the same terms as sought in sub-paragraphs 2(2), 2(4), 2(6), 2(8) - 2(20) above.
With the wife, the parenting orders that she now seeks are as follows:
11.1In the event that the husband resides in the Northern Territory:-
“(a)For one week in each of the April and October school holidays from 8:30am on the first Saturday of such school holidays until 8:30am on the following Saturday for the entire term of the June SA school holidays and for three weeks in the Christmas school holidays or at such other times as may be agreed between the parties and in default of agreement as Ordered by the Court PROVIDED THAT the husband do give to the wife at least three weeks prior written notice of his intention to take such contact or portion thereof and that the wife do pay the cost of return airfares for the children prior to the commencement of each holiday contact period.
(b)In Adelaide during term time, upon the husband giving to the wife four weeks written notice of his intention to take contact provided that such contact does not exceed three consecutive nights per visit and three occasions per term.
(c)By telephone on three occasions per week between the hours of 6:30pm and 7:00pm each Tuesday, Thursday and Saturday with the husband to telephone the children on their landline number and if unavailable on the wife’s mobile number.”
11.2In the event that the husband resides in Adelaide:
“(a)From 3:30pm on the Friday to 5:00pm on the Sunday of each alternate weekend commencing on the cycle beginning Friday 19^th of September 2008, in consultation with the children.
(b)For one week in each of the April, July and October school holidays from 8:30am on the first Saturday of such school holidays until 8:30am on the following Saturday or at such other times as may be agreed between the parties and in default of agreement as Ordered by the Court.
(c)For the first three weeks of the Christmas school holidays in each alternate year commencing in December 2005 from 9:00am on the first Saturday thereof to 9:00am on the fourth Saturday thereof in accordance with the current pattern.
(d)For the last three weeks of the Christmas school holidays in each alternate year commencing in January 2007 from 9:00am on Saturday and concluding at 9:00am on the Saturday prior to the commencement of school term in accordance with the current pattern.
(e)By telephone at all reasonable times.
(f)At such further or other times as may be agreed between the parties and in default of agreement as ordered by the Court.
(g)That all change overs not at the schools do occur at the husband’s residence within the metropolitan area of Adelaide.
(h)That all weekend contact be suspended during school holidays.
(i)That the husband be restrained and injunctions be granted restraining the husband from:-
(i)residing within a 2km radius of any residence in which the wife shall reside from time to time;
(ii)approaching or remaining in the vicinity of the wife’s residence and any premises occupied by the wife for the purposes of employment;
(iii)communicating with the wife other than:-
1)by email during normal office hours; or
2)in the event of an emergency;
(iv)allowing the children to:-
1)ride on any motorcycles or off road recreational motor vehicles; and
2)have access to lethal weapons of any nature.
(v)denigrating the wife or allowing any other person to do so in the presence of the children;
(vi)assaulting, harassing, abusing, stalking or in any way intimidating the wife;
(j)That the wife be at liberty to take the children on an overseas holiday each year at such times as she may in her absolute discretion determine for a period of six (6) weeks per annum and that the husband do all such acts and things and sign such documents as shall be necessary to obtain and/or renew the children’s passports which shall remain in the possession of the wife at all times.
(k)That both parties do forthwith inform and notify the other in the event that the children suffer from any illness or medical emergency during contact.”

I note that in the orders sought by the wife in the event that the husband resides in Adelaide the wife has not incorporated the change that she made through her counsel in his opening, namely that the alternate weekend time should extend from the conclusion of school on the Friday until the commencement of school on the Monday, and there should be time spent on one school night each alternate week. I assume that this is an oversight on the wife’s part.

Factual Background

The husband was born in January 1959 and is now aged 49 years.
The wife was born in March 1961 and is now aged 47 years.
In 1983 the wife completed a degree.
In 1984 the wife commenced employment as a trainee in Melbourne. The wife then gained registered in her field.
In 1985 the wife commenced work in Alice Springs.
The parties met in 1985 in Alice Springs. At the time the husband worked for the Northern Territory public service on transfer from Darwin.
On 19 August 1985 the wife purchased a Unit at W Street for $45,000. The purchase was financed by way of a distribution from a family trust controlled by her parents in the amount of $16,409, savings of between $5,000 and $10,000, and the balance was provided by way of mortgage. The wife states this mortgage was discharged by 1991.
On 11 June 1986 the wife acquired a company, CN Pty Ltd. Initially the wife and her mother were directors of the company, then the husband became a director, and later still the wife became the sole director and shareholder of the company.
In 1986 the husband purchased a consulting company, MG Pty Ltd, and in September 1986 he commenced operating that practice under the name BF Business.
In November 1986 CN Pty Ltd purchased CN Business in Alice Springs. The purchase price of $202,500 was financed by $150,000 provided by the wife’s parents and an extended line of credit from Fauldings. The wife states she later reached agreement with her father that the $150,000 should be treated as comprising a family trust distribution of $59,110.31 and the remaining $90,889.69 as a loan from her parents. The wife states she made repayments to her parents of $25,000 in May 1987, $25,000 in March 1991, $20,000 in June 1991 and the remaining $20,889.69 in June 1992 from the income of the business. She also repaid the Fauldings line of credit.
The wife was employed by CN Pty Ltd working full time in addition to managing the business.
On 23 March 1987 the parties purchased a property at I Street for $72,000. The property was placed solely in the husband’s name. The wife contributed $10,000 from her savings and a loan was obtained for the remainder of the purchase price.
The parties married in April 1987.
Following their marriage the parties resided at the I Street property. The parties opened a joint ANZ savings passbook account. The wife maintained her own personal account.
In 1987 the husband established a company structure for his business, namely BF Business Pty Ltd (later Franklin Pty Ltd). The husband and wife were appointed co–directors and became equal shareholders but with the wife holding her share on trust for the husband. The company acquired the business from the husband.
On 1 July 1987 the wife commenced contributing to the P Superannuation Fund.
In 1988 the husband commenced making contributions to a MLC superannuation fund.
In 1989 the CN Business relocated and was renamed FY Business.
In 1989 the husband says that Franklin Pty Ltd leased a BMW motor vehicle to be used by an employee of the company. On the other hand the wife contends that the husband used $26,000 from the parties’ joint savings account to purchase this vehicle but he never reimbursed this money. The husband denies ever driving the vehicle as the wife contends, and claims the wife always drove the vehicle rather than be used by an employee. The wife admits she drove the vehicle from 1992.
On 4 May 1990 the wife purchased 1,200 ANZ shares in the parties’ joint names for $6,128 using funds from the sale of government bonds she held prior to the parties’ marriage ($3,000) and joint funds.
On 29 August 1991 the wife purchased 1,000 Boral shares in her name for $3,380.15 using funds from her bank account.
In October 1991 the parties purchased a property at Alice Springs for $380,000, registered in the name of the wife. The purchase was facilitated by a loan in the amount of $300,000 from ANZ Bank and $80,000 from the parties’ joint account. The wife contends she transferred $75,000 from CN Pty Ltd into the account to fund the balance of the purchase price, whereas the husband contends this amount of $75,000 included $30,000 he previously paid to CN Pty Ltd from BF Business Pty Ltd. The parties subsequently moved into the Alice Springs property.
In December 1991 the parties sold the I Street property, receiving net proceeds of $54,660. These proceeds of sale were paid towards the mortgage over the Alice Springs property.
On 4 March 1992 the parties accepted an offer to purchase 267 ANZ shares for $1,004. The shares were purchased in joint names from cheques drawn on CN Pty Ltd as a personal drawing.
The parties differ in their accounts of the circumstances surrounding the husband’s establishment of a business in Darwin and the actions of the husband at this time. According to the wife, in late 1992 when she was pregnant with the parties’ first child the husband moved to Darwin while she remained in Alice Springs. The wife states that she regarded this as the husband ending the marriage at this time. According to the husband, in 1993 the parties agreed that he would establish an office in Darwin. The husband states that it was his intention that a manager run the business in Darwin and that he remain in Alice Springs with regular trips to Darwin. The husband states that by the end of 1993 the manager he had appointed was unable to continue and he had no alternative but to spend more time in Darwin than he had intended. According to the husband, he continued to spend as much time as possible in Alice Springs and had not relocated to Darwin.
The wife contends that in 1992 the husband ceased making any contribution to the household, apart from a contribution towards the Alice Springs property mortgage. The wife asserts the husband withdrew between $25,000 and $30,000 from the parties’ joint savings account.
In May 1993 the parties’ first son B was born and is now aged 15 years.
On 9 November 1993 the wife opened a bank account in trust for B.
On 25 November 1993 the wife’s parents transferred 1,291 ANZ shares to B. The wife holds these shares on trust for B. Further shares have been accumulated pursuant to a dividend reinvestment plan.
In March 1994 the wife purchased 115 Boral shares for $414 paid from drawings from CN Pty Ltd.
In May 1994 the wife purchased 2,000 CSL shares for $4,800 in her name from personal drawings from CN Pty Ltd. At this time the wife also purchased 1,000 CSL shares on trust for B, also paid from CN Pty Ltd as personal drawings.
In mid 1995 H Pty Ltd was incorporated for the purposes of purchasing an office building in Darwin. The husband and wife were equal shareholders and directors of H Pty Ltd, but the wife held her share on trust for the husband. On 3 July 1995 the husband established the Franklin Family Trust, with H Pty Ltd as the trustee.
On 14 July 1995 an office building at was purchased for $640,000 and registered in the name of H Pty Ltd as trustee of the Franklin Family Trust. A loan was obtained from the ANZ Bank and both parties were required to sign personal guarantees as directors of the company.
In mid 1995 the husband decided to operate Franklin Pty Ltd as a “multi-disciplined” practice in Alice Springs in order to try and keep the practice in Alice Springs viable.
In January 1996 the parties’ second son N was born and is now aged 13 years. Following the birth, the wife flew to Adelaide to undergo back surgery. Thereafter the wife employed a live-in nanny to assist her around the house and with the children. According to the wife the husband continued to reside in Darwin.
In February 1996 the wife lent the husband $20,000 from CN Pty Ltd, allegedly under duress from the husband.
In June 1996 the wife established a new business at O. The wife purchased a shelf company, PC Pty Ltd, and established a Family Trust to operate the business trading as OS Business. The wife was the sole director and shareholder of PC Pty Ltd. The total cost of establishing this new business was $596,323. The wife met this cost through a loan of $500,000, sale proceeds of the unit at W Street of $60,523, $10,000 from personal savings and the balance from CN Pty Ltd.
On 22 July 1996 the wife’s parents gave 463 Commonwealth Bank shares to the child N.
In late 1996 the wife relocated with the children to Darwin, along with the live-in nanny, and rented a house at O. The husband moved from his previous rental accommodation to reside with the wife and children.
In December 1996 the OS Business opened.
In late 1996 or early 1997 the wife requested that the husband repay the $20,000 loan. The husband refused initially but it was eventually repaid.
In early 1997 the husband entered into negotiations with another practice with a view to acquiring practices in Darwin and Alice Springs. The husband merged his practices in Darwin and Alice Springs with the two practices of AR Business, creating AF (Darwin) and AF (Alice Springs) Pty Ltd. According to the husband, H Pty Ltd acquired a 51% interest in the new businesses. The wife says in July and August 1997 she signed two Unit Trust deeds as a director of H Pty Ltd for the purposes of forming the new businesses. The effect in the end was the husband and the wife both had a 25.5% share in those new businesses.
In February 1997 the parties’ son N was assessed as being developmentally delayed. Both children were later diagnosed as having cerebellum development delay leading to visual tracking problems and poor hand dominance.
In August 1997 the wife rented out the property at Alice Springs and opened an account to receive the rental income.
In May 1998 the parties’ moved to a rental property at P. According to the wife the property was rented in her name alone, and all utilities were in her name as well.
On 30 April 1999 the wife purchased 1,000 Australian Foundation Investment company shares for $2,925.50 for N utilising a refund cheque from the Commonwealth Bank after the wife’s parents were unsuccessful in their application for additional Commonwealth Bank shares.
On 13 August 1999 the wife was served with two notices of demand from the ANZ Bank following cash flow problems with the husband’s business. The husband refinanced his business with NAB, and according to the wife, she was required to give a personal guarantee to the bank, and mortgage the Alice Springs property.
In 1999 the wife resigned as a director of H Pty Ltd and Franklin Pty Ltd following the notices of demand being served on her. According to the husband the wife also required him to resign as a director of CN Pty Ltd which he did.
In December 1999 a property at Darwin was purchased in the wife’s name. According to the wife, she purchased the property for $389,127, financed through a loan from the ANZ bank of $296,000, an advance from PC Pty Ltd of $30,000 and $63,127.04 from her personal account. She sold CSL and Boral shares for this purpose. The wife contends the husband did not contribute to the purchase and was not consulted. Conversely, the husband states the parties jointly decided to purchase the property, although he agrees that he did not contribute to the purchase price. The parties subsequently resided at the property.
On 25 August 2000 the wife purchased 20,000 Entity-1 shares for $5,000 from personal drawings from PC Pty Ltd.
In 2001 or 2002 AF (Darwin) Pty Ltd provided the wife with the use of a Nissan Maxima motor vehicle after the BMW broke down.
In August 2001 Ms M commenced working for AF (Darwin) Pty Ltd. She was employed as the husband’s personal assistant/secretary.
On 30 August 2001 the wife paid off $40,000 from the mortgage over the Darwin property.
On 15 May 2002 she paid off $20,000, and on 23 July 2002 another $20,000.
On 11 February 2003 the wife purchased 10,000 Geo Dynamic shares for $2,000 using funds from her personal account.
On 20 February 2003 the wife sold FY Business in Alice Springs, receiving net proceeds of $1,687,236. The husband later closed his business in Alice Springs as well.
In November 2003 the wife accepted an ANZ rights issue, purchasing a further 533 shares for $6,929. The shares were issued in the joint names of the parties. The wife also purchased 386 ANZ shares for B at a cost of $5,018.
On 6 January 2004 the wife purchased 318 CSL Shares for $5,000 with funds from her personal account. The wife also purchased 318 CSL shares for B also for $5,000.
On 2 June 2004 the wife opened an account with JRB Superannuation Fund and transferred $500,000 of the net proceeds of sale of the business into this account.
On 11 October 2004 the wife purchased BetCorp shares to the value of $9,967 using funds from her personal account.
In early 2005 the husband formed a relationship with Ms M. However he says that prior to the trial at no stage did they live in a de facto relationship.
On 11 March 2005 the husband acquired a half interest in Ms M’s property at U1 and re-financed the mortgage.
The parties separated in early April 2005. The wife contends it was on 1 April, while the husband says it was on 6 April. Nothing turns on this difference though.
In April 2005 the wife purchased a Subaru Liberty motor vehicle for $40,750 from her personal savings.
On 19 April 2005 the police were called to the former matrimonial home following an incident between the husband and wife. The wife subsequently applied for an Apprehended Violence Order in the Local Court. The matter was resolved through mutual undertakings by the parties that they would not approach or contact the other party except for the purposes of facilitating contact with the children or for court appearances, and would not act in a “provocative or offensive” manner towards the other party. The husband acknowledged in the undertaking that he had obtained his own accommodation and had no intention of returning to the former matrimonial property in Darwin.
On 22 April 2005 the husband leased a rental property at L Street, Darwin, next door to the former matrimonial home where the wife continued to live with the parties’ two children.
On 24 May 2005 the wife purchased 1,290 Geo Dynamic shares at a cost of $2,000 with funds from her personal cheque account.
In May 2005 the husband purchased a second hand Ford Fairmont motor vehicle for $27,690 through the AF Unit Trust.
On 17 August 2005 the husband commenced proceedings in the Federal Magistrates Court of Australia, seeking parenting orders.
On 5 October 2005 the wife filed a Response seeking parenting orders and certain injunctions against the husband, including that the husband be restrained from residing within a 5 km radius of the wife and vacate the premises at L Street.
On 25 November 2005 following an interim hearing on 21 November Brown FM delivered reasons for judgment and made interim orders. Brown FM ordered that the parties be jointly responsible for the long term care, welfare and development of the children and that the children live with the wife. Brown FM made orders that the husband have contact with the children during school terms each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and in the alternate week on a school night from after school until the commencement of school the following day, the days to be agreed or in default of agreement after school on Tuesday until commencement of school on Wednesday. Orders were also made for telephone contact, contact during school holidays and on the children’s birthdays. Each party was to have responsibility for the children’s day to day care, welfare and development when they were in their respective care. Brown FM also made various injunctions, including restraining the husband from allowing the children to ride motor cycles or other off-road recreational vehicles without the wife’s consent. His Honour refused to make an order requiring the husband to vacate his premises at L Street as sought by the wife. Finally, Brown FM transferred the Application for Final Orders to the Family Court of Australia.
On 31 December 2005 the AF Unit Trust was vested. It had ceased trading on 30 June 2005 and it had no tangible assets (see Exhibit H7). However this was inconsistent with the financial statements in Exhibit H6 which indicate that the Unit Trust was still trading as at 30 June 2006. Fortunately though that has no effect on the decisions that I have to make.
In January 2006 AF (Darwin) Pty Ltd was deregistered (see Exhibit H7).
On 3 April 2006 the husband filed a Form 1 Amended Application for Final Orders seeking parenting orders and also orders for property settlement.
On 7 April 2006 the wife filed a Form 1A Amended Response to an Application for Final Orders seeking parenting and financial orders.
The wife filed a Form 1A Further Amended Response to an Application for Final Orders on 18 May 2006. She specifically sought an order allowing her to relocate the children to Adelaide as from 1 January 2007.
On 6 June 2006 a divorce order was made which became absolute on 7 July 2006.
On 2 August 2006 Ms V, Family Consultant, provided a Family Assessment Report in which she made the following recommendations:
“31. It is recommended that the mother’s application to relocate to Adelaide with the children be not [sic] accepted. It is further recommended that the Court give consideration, in the light of this report and the other evidence before it, to the boys spending equal time with both parents, given that they have already been subjected to the disadvantages known to be associated with ongoing high parental conflict, without even thus far having had the benefits of substantial time with their father. In the event that the Court finds this not to be appropriate, the recommendation is that any other arrangement must include provision for them to spend substantially more significant time with their father.”
On 31 October 2006 the husband filed a Form 1 Further Amended Application for Final Orders.
In November 2006 the wife purchased 2,000 T3 Telstra shares for each of the children to be held by her on trust for them, at a cost of $4,000 each.
In February 2007 the mortgage over the Alice Springs property was paid off in full.
In May 2007 the husband purchased a property at W jointly with Ms M for $387,500. A loan for $290,000 was obtained from Westpac bank in Ms M’s name, with the husband as guarantor. The balance of the funds came primarily from Ms M, including the amounts required to meet the costs of purchase such as stamp duty.
On 20 June 2007 an order was made that Ms V, Family Consultant, interview the children and provide an updated Family Assessment Report.
In July 2007 the husband and Ms M jointly purchased a property at U2 for $387,500. This property was then rented out.
On 27 August 2007 Ms V provided an Updated Family Assessment Report in which she made the following recommendation:
“28.It is recommended that [the children] be permitted to move to Adelaide with their mother in time for the start of the next school year, with holiday and visiting arrangements to be negotiated before being included in the Orders made, and that the father and mother be able to exercise parental responsibility for the boys unimpeded by the other when the boys are in their care.”
The trial in this matter commenced on 24 September 2007, and concluded on 4 October 2007.
In May 2008 the husband moved to Adelaide with his partner, Ms M, to enable Ms M to receive medical treatment for cancer.
On 4 July 2008, with the husband’s agreement, the wife moved to Adelaide with the two children.

The current circumstances of the parties

The husband

The husband, Ms M and her two children have been residing temporarily in a rented three bedroom house in Adelaide. They intended to remain there until the end of 2008 when they proposed to return to Darwin and reside in their property. This property was purchased during the trial, but no detailed evidence was presented about the accommodation it provides, and neither party sought to include it in the asset pool.
The husband and Ms M moved to Adelaide in about May 2008 to enable Ms M to have surgery for cancer. They remained in Adelaide subsequently whilst Ms M continued to receive treatment for her cancer. She has now completed that treatment and she is awaiting the results. If the treatment has been successful it is likely that the husband, Ms M and her children will relocate permanently from Darwin to Adelaide. However, if it has not been successful, and no further treatment can be provided then they will remain in Darwin. If further treatment is necessary, then it is likely that they will move back to Adelaide at least temporarily for that purpose.
In June 2008 the husband appointed a temporary office manager to operate his business in Darwin. He has occupied himself in Adelaide as a full time home maker and carer to Ms M and her children. He does not draw a salary from his business and he is living off his personal savings and drawings against his loan account.
The rented premises provides adequate accommodation for the husband, Ms M and her two children, and when B and N stay with the husband they have their own bedroom.
Ms M was working in the husband’s business in Darwin and undertaking study at University. If they ultimately relocate to Adelaide Ms M can continue that course of study there. The husband would be able to continue his practice as a consultant in Adelaide. However, the timing of the relocation would depend on how soon they can organise their affairs in Darwin.
After the husband and Ms M moved to Adelaide the husband was not able to spend time with the children in accordance with the interim orders until September 2008 because of the circumstances of Ms M and the upheaval that that caused generally. However, as I understand it the husband is now spending time with the children in accordance with those interim orders.

The wife

In July 2008 the wife and the two children B and N relocated permanently to Adelaide. Initially they lived at the home of the wife’s sister, but they now live in a house property in the south-eastern suburbs of Adelaide close to SH School. I am not told where precisely that home is or whether it is rented or owned, and that concerns me in considering what is in the best interests of the children.
The home has four bedrooms, a separate teenage retreat, a swimming pool and a home office. The children each have their own bedrooms.
The children are able to have frequent and regular contact with members of the wife’s family including her niece and nephew, the children’s cousins.
B attended WR School where he was in Year 9. N attended SH School where he was in Year 7. The wife’s nephew was also in Year 9 at WR School and her niece attended SH School.
B has discussed moving to SH School in 2009. His cousin would do the same.
Both children are progressing well at school. They are engaged in a number of activities and they have both made a number of friends.
The wife supports the children financially and even provides their clothing when they visit their father. The husband does not pay any child support.
The wife operates her business in Darwin from Adelaide. She works in a home office during school hours and she travels to Darwin approximately once each month for two nights. I have not been told what her long term plans are for the business.

The issues in dispute

Parenting

Although the question of the children’s relocation to Adelaide is no longer an issue, the parties are still in dispute as to the time that the children should spend with the father.
There are two possible scenarios to consider, firstly if the husband remains living in the Northern Territory, and secondly if the husband moves to Adelaide.
I have set out above the detail of the orders sought by each party depending on where the husband is living, however, the wife’s counsel put to me that I should only consider for the purposes of this judgment what orders should be made on the basis of the husband living in the Northern Territory. This is where the husband will be living from the end of 2008 and it is too uncertain as to whether, and if so, when he will be moving to Adelaide. Further, his proposal of equal shared care in that event is such a significant change to the status quo that it realistically could not be left to be introduced at the husband’s whim and regardless of the circumstances at the time, or indeed without knowing what the children think of it given their ages. The husband of course says otherwise and seeks that alternative order.
Apart from that major issue the parties are also in dispute over school holiday periods, the place of handovers and the various injunctions sought by the wife. Importantly the parties are also apart in the orders that they seek in the event that the husband remains in the Northern Territory.
In the context of these disputes the following issues emerge:
119.1The wife asserts that the husband played almost no part in the lives of the children given that on her case he effectively left the marriage in 1992 when he opened a branch of his business in Darwin and began to stay there. The husband says that his absences were necessary for work purposes and he concedes that the wife had the primary responsibility for caring for the children on a day to day basis. However, he denies abandoning his family and says he continued to play a significant role as the father of the children.
119.2The wife claims that the husband favoured N over B in all respects. The husband denies this.
119.3The husband asserts that the wife was controlling and she was obsessive about the children to the extent that she excluded him from their lives. He says she made all of the important decisions for the children and he had to either accept the decision that she made or engage in an abusive dialogue with her. He says he chose the former.
119.4The wife asserts that the husband subjected her to “violent, emotional and abusive behaviour” during the marriage. The husband denies this.
119.5The children’s wishes. The wife says that the children have told her that they do not want to live week and week about with the father. She says that they have also told her that they do not want to spend Tuesday nights with him.
119.6The wife seeks various injunctions including restraining the husband from permitting the children to engage in certain activities that she considers dangerous. The husband opposes this as do the children.

Financial

With the asset pool the issues are as follows:
120.1How should the value of the wife’s interest in CN Pty Ltd be calculated. The wife says the amount should be $922,582 but there is no evidence of that figure. The husband says it should be $2,746,293, but there is no evidence of that figure either. The only evidence is that of Ms HR who says that at 30 June 2006 there was a debenture of $1 million, a bank account of $275,000, and a loan account of $862,000. That amount of $862,000 is owed by the operating entity of the Darwin business. However, the wife says that it is not necessary to include it because it is just offset in the valuation of the Darwin business. The husband initially said that that takes no account of whether the Darwin business now has other income/assets to meet this liability, and thus the loan account should be included. The difficulty though for the husband is that there is simply no evidence as to this, and in his counsel’s final address he conceded that the loan account should be left out, but he said that the figure should be $1,275,000 and not $922,582. I agree with that submission. I note though that towards the conclusion of the trial Mr Black changed his position and put that the loan account should in fact be added on. However, there was nothing new in this submission and I reject it.
120.2Whether the entire value of the properties at U1 and W should be included or only 50% of those values. The wife says 100%, the husband says 50%. The husband owns these properties jointly with his partner Ms M, and curiously, during his cross examination he accepted that the entire equity in these properties could in fact be brought to account if this Court considered that that was appropriate, and he would not argue with that, but that was not how his counsel dealt with this in his final address. He included them in his schedule at one half of their value.
120.3Whether the property at U2 should be included, and if so, at 100% of its value or at 50%. Again, this property is owned jointly by the husband and Ms M. The issue for the husband is that anything purchased after 30 June 2006 should not be included because the valuation of the wife’s business was as at that date and it would be unfair otherwise. This property was purchased after that date. The wife opposes excluding this property from the asset pool.
I note that for some inexplicable reason the husband did not ultimately apply this same argument to the property at W despite that property also being purchased after 30 June 2006. The husband included his interest in this property in his schedule of assets and liabilities.
120.4Whether the amount of $95,000 should be included to represent the husband’s interest in AF Unit Trust, or whether his loan account of $324,764 in AF should be included. The husband seeks the former and the wife seeks the latter. I note that the figure of $95,000 is not established by any evidence, but the husband’s counsel says it was the wife’s figure initially and the husband accepted this. The wife says that that figure is no longer relevant given the evidence that has emerged of the husband’s loan account.
In relation to the loan account the husband says that if that, together with his annual and long service leave entitlements are taken into account his business would be insolvent, and thus he says that these items should be disregarded.
In any event I note that upon close inspection of Exhibit W10 the figure of $324,764 was the amount of the loan account as at 30 June 2007, but there is a more recent figure of $296,693 as at August 2007 and that is the amount that should be used.
120.5Whether the husband’s annual and long service leave entitlements totalling $92,816 should be included as the wife wants or excluded as the husband submits for the reason referred to above.
120.6Whether the parties paid legal fees should be notionally added back to the asset pool, and if so in what amounts given the lack of evidence as to the same. The wife’s Financial Statement indicates that she paid the amount of $129,410.88 by way of costs at one stage. However, she said in oral evidence that as at approximately one month prior to the commencement of the trial her legal costs were $400,000. For the husband’s part he provided no evidence of what he has paid for his legal costs.
120.7The husband’s non-disclosure. The husband failed to disclose his involvement in the refinancing of a house property with Ms M which resulted in him owning one half of that property with her and substantial amounts being paid off the new mortgage. The husband also failed to disclose the circumstance of Ms M being able to retain in excess of $100,000 comprising debts due to the husband’s business that she collected on his behalf. As was later revealed some of this money in turn was used to purchase at least one of the other properties now owned jointly by the husband and Ms M.
The husband subsequently arranged for these amounts to be debited against his loan account in the business, but this did not save him because he had also failed to disclose the loan account.
At this point I note that the parties agreed to exclude the assets of the children from the asset pool for the purposes of this case.
In relation to the respective contributions of the parties the following major issues emerged from the evidence:
122.1There was a dispute in relation to the amount of $150,000 provided to the wife by her parents to enable her to purchase the business at Alice Springs. In the end result though the evidence indicated that it was initially recorded as a loan, but later agreement was reached between the wife and her parents that $59,110.30 be treated as a distribution from the Family Trust of the parents, and the balance as a loan.
122.2The wife alleged that from the time of the husband setting up a branch of his business in Darwin in about 1992/1993 the marriage came to an end and his financial contributions to all but his own business and his own support were minimal at best. The husband denies these allegations.
122.3In a similar vein the wife alleges that since about 1992 the husband has made very few non-financial contributions and almost no contributions to the welfare of the family. Again, the husband denies this.
122.4The husband’s contributions to the establishment and operation of the wife’s businesses. The wife says that the husband did very little in relation to establishing the businesses, and almost nothing in relation to their subsequent operation. The husband says otherwise, particularly in relation to the establishment of the businesses.
122.5The origin of the amount required to purchase the property at Alice Springs apart from the mortgage obtained, whether that property should be purchased at all given its unusual construction, and if so in whose name it should be registered. Further, the husband claims that registering the property in the wife’s name caused difficulties for his business at various times in that she would not allow this property to be used as security for borrowings by his business in times of need until she eventually agreed to include it in a refinancing arrangement with the National Australia Bank in about 1999.
In relation to sub-section 75(2) of the Family Law Act 1975, neither party sought an allowance for any factor arising under that sub-section.

The principles to be applied to the issues in dispute

Parenting

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(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. (Section 60CC(2))
Additional considerations
(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. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order 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. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.

At this point I also note that the wife seeks credit for contributions made to the business in Alice Springs by her father. The husband does not challenge this and indeed his counsel conceded in his final address that the father attended to the bookkeeping of the business. Thus, I will take these contributions into account as contributions made on behalf of the wife.
For the husband’s part, I accept that when it became apparent that there was no great future in Alice Springs for his business he discussed the options with the wife ranging from selling his business to opening a branch in Darwin. Of course, the latter was the option taken by the husband, and I find that the wife was involved in that decision. She certainly was not happy about it though, and she was suspicious about his motives, but I consider that neither party in fact appreciated what the husband would have to do and how much time he would need to devote to establishing and then running a branch office in Darwin. This was made all the more difficult with the husband’s inability to find a long-term manager for that office, requiring the husband to spend even more time in Darwin.
In 1995 the husband discussed with the wife investing in an office building in Darwin, and with her encouragement he set up a Family Trust with a corporate trustee and purchased the office property. The wife allowed the property at Alice Springs to be part security for the borrowings required to fund this purchase, the wife being a director of H Pty Ltd, the trustee company.
In 1996 when it became apparent that the husband’s business in Alice Springs was in “significant trouble” I find that the parties discussed the possibility of the wife moving to Darwin and opening a new business in O. The husband prepared cash flows and undertook to purchase a shelf company, although it seems that did not eventuate. The wife decided to proceed with the proposal and moved to Darwin, and although I find that she undertook the primary work over a period of about six months, and she had the overall control of the project working long hours, the husband assisted where he could including in the following areas:
281.1He attended meetings.
281.2He prepared correspondence and supporting documents.
281.3He helped prepare “mechanical, electrical, fire, communication and hydraulic design drawings for the fit-out”.
281.4He attended at the shop at times.
281.5He assisted in cleaning the shop and preparing for its opening.
There was a dispute on the evidence as to the husband’s attendance at the shop and his involvement in the fit-out. The husband for example says that he met with the project manager on a number of occasions. However, the wife relied on the affidavits of Mr RY who was the project manager for the entire project and who assisted in the shop fit-out, and Mr HE who was the project manager for the fit-out, and they both deny that the husband had anything to do with them in relation to the shop. The husband did not require either of these persons to be made available for cross examination, and thus I accept their evidence in preference to that of the husband’s.
At this point I note that the wife again seeks credit for work her father did in supervising sub-contractors and helping her with the fit-out. I accept this evidence and I will take these contributions into account on behalf of the wife.
Once opened the husband provided similar assistance to the wife as he had done with the business at Alice Springs. This included setting up spreadsheets, assisting with tenders, assisting with the purchase and set up of a new laptop computer, and allowing the wife to use the facilities and his staff at his business whenever required. I note that the wife’s father also assisted with the book work as he had done in Alice Springs.
In 2003 the wife sold the Alice Springs business and the husband decided to also withdraw from Alice Springs and concentrate on his Darwin practice. I find that these were joint decisions in the sense that the parties discussed them and then a decision was made.
On the basis of the foregoing, I find that the wife’s contributions pursuant to Section 79(4)(a) and (b) of the Act outweigh the contributions of the husband. Specifically I find that the wife’s financial contributions were greater given primarily the higher income that she was able to achieve through her businesses, as conceded by the husband, and the uses that she put that income to. Although the wife submitted that their financial contributions were roughly equal up to late 1991, it was after that that the disparity in her favour arose and it continued through to the time of the separation in April 2005. With the non-financial contributions I find that the husband’s contributions marginally exceeded the wife’s given primarily his work in improving the properties at I Street, Alice Springs and Darwin. However, I also find that the disparity between the respective financial contributions of the parties clearly overshadowed any disparity between their non-financial contributions.

Section 79(4)(c)

I have no difficulty in finding that between the husband and the wife the wife was the primary caregiver to the children, and that she attended to the majority of the domestic tasks in the household, if not all of them before the children arrived. However, the wife worked as well and she relied heavily on nannies, housekeepers and cleaners, as well as her parents and the husband on a regular basis.
For his part the husband did some cooking, washed dishes and made beds, looked after the children when the wife was working or away and he was not, and when the nanny was not available. He put the children to bed, and read them stories. He looked after them when they were sick. He took the children to music lessons every Saturday morning for at least two years and then to the Centre of Youth Music and generally looked after them on Saturdays.
I find that the husband also looked after the wife when she gave birth to N and she experienced problems with her lower back in late 1995/early 1996. He accompanied her to Adelaide where she had medical treatment over a six week period.
The husband arranged his working hours to allow him to be involved with the family, including going back to work after the children were in bed. The wife also ensured that she returned home to relieve the housekeeper each day and attended to the children’s needs.
In Alice Springs the wife alleges that the husband refused to undertake any domestic duties of any kind, but I reject this claim. She also alleged that he failed to carry out any tasks around the home. She says that her father undertook “gardening duties”, and she and her mother assisted him. Again, I reject these claims in so far as they suggest that the husband did nothing. I find that the husband did what he could in and about the house and in the garden given his work and travel commitments.
The wife detailed in her evidence the assistance she received from her mother, including sewing curtains, making baby blankets, sheets and other bedding items for B, knitting and sewing clothes, and, of course, looking after the children at every opportunity. However, I note again that the wife’s mother did not give evidence, and there is no evidence, not even from the wife, as to on whose behalf these contributions were made. Prima facie they could be said to have been made on behalf of both the husband and the wife, and that is how I propose to approach this issue.
The wife’s parents also assisted in caring for the children when the wife returned to Alice Springs to work in her business, and when the wife’s father came to Darwin he would invariably help out including assisting with the school drop off and pick up. With the former I suggest that can be viewed as a contribution made on behalf of the wife, but not necessarily the latter.
During the period when the wife was in Alice Springs and the husband was spending a substantial amount of time in Darwin, the wife’s parents assisted the wife in caring for the children. I find that this was a contribution made on behalf of the wife.
The housekeeper, Ms BT commented in her affidavit that in Darwin the husband would not do anything to assist the children in the mornings and he would just look after himself, that he did not do the dishes, and that on occasions he did not come home from work when he was expected to. However, to repeat, I consider that Ms BT was biased against the husband in her evidence, and I place no weight on these allegations. In any event, I would not be unreasonable for the husband to leave the housekeeper to attend to the chores that she was paid for.
The wife and Ms BT also suggest that the husband did no work in the garden and did not involve himself at all with the children and their activities. Again, I reject this evidence. In relation to the garden I find that the husband did what he could in and around the house consistent with his work commitments, and this was more than the wife who did no gardening at all. In relation to the children and their activities, the same situation applied, namely the husband did what he could consistent with his work commitments. The husband does not dispute that the wife was the primary caregiver to the children, even allowing for the circumstance that she relied heavily on Ms BT to care for them during the week when she was working. There is also no doubt that the major responsibility for organising and paying the housekeeper and the gardener fell upon the wife.
The wife alleges that after N was assessed in February 1997 as being developmentally delayed the husband refused to attend appointments with the paediatric team and did not participate in any remedial exercises that she and the live in nanny did with N. I have referred to this issue earlier in these reasons, and repeat that it was not a case of the husband refusing, but it was a case of the wife preventing the husband’s involvement in these things. Thus although the wife should receive credit for undertaking these tasks, the husband cannot be criticized for not being directly involved.
Apart from being the primary caregiver to the children the wife paid their school fees, the costs and expenses relating to all of their activities, as well as covering them for health benefits.
There is no doubt on the evidence that, even allowing for the involvement of housekeepers, nannies, cleaners, and gardeners that the wife’s contributions under this heading far outweigh the husband’s contributions.

Post-separation contributions

Following the separation the wife and the children continued to reside in the house property at Darwin, and the husband moved into rented accommodation.
The wife has continued to meet all of the mortgage repayments and the other outgoings and costs payable in relation to the Darwin property without any contribution from the husband. That has remained the situation even though the wife and children are now living in Adelaide.
The husband of course paid the rent and the costs in relation to his premises at L Street in Darwin. In addition he contributed to the mortgage secured over the property he owns jointly with Ms M at U1. Prior to the trial the husband and Ms M purchased two other properties together, namely W property and U2 property. I understand that the husband resided in the former and the latter has been rented out. The husband has made necessary financial contributions to the costs associated with these properties. The wife made no direct contributions to the three properties purchased by the husband and Ms M, but she clearly made an indirect contribution to the monies used by the husband to fund his financial contributions to the acquisition, conservation or improvements of these properties. The husband used money from his business which he retained and continued to operate after separation.
The husband and Ms M continued to meet the mortgage repayments and other outgoings and costs in relation to these three properties during 2008 including when they were living in rented premises in Adelaide.
For the period of time that the husband rented premises at L Street in Darwin he did not have the benefit of residing in the former matrimonial home in Darwin. The wife enjoyed that benefit. In some cases that situation allows for credit to be given to the party in the position of the husband, but that is not the case here given that even before the separation the husband was not making any contributions to the mortgage repayments or to the outgoings and other costs in relation to that home. Indeed, the husband did not seek any credit in these circumstances.
The wife has continued to be the primary caregiver to the children. Initially the husband had limited time with the children, but since the orders made in November 2005 he has had regular and frequent contact with them. However, that changed in 2008 with the husband having to move temporarily to Adelaide to care for Ms M. That did not allow him to see the children as much as he had done previously.
The wife has continued to operate her business in Darwin and the husband has continued to operate his consulting business in Darwin. However, since separation there has been no direct contribution of any nature by either party to the other’s business. The value of the wife’s business has grown significantly but that cannot be solely attributed to the wife given that the husband had made some contribution to that business up to the date of separation and that should be in effect carried forward. The nature of the wife’s business did not change after separation but the turnover increased. That can be attributed not only to the hard work of the wife but also to the soundness of the business at separation on which the wife was then able to build.
The wife has continued to support the children financially. The husband has not paid any child support and all he has done is meet the children’s expenses when they are with him. The wife has continued to pay all of their school fees and associated costs and cover them for health benefits.
The husband’s evidence is that since late 2004 or early 2005 his business has paid for the electricity, water and sewage at the property at Alice Springs. The wife disputes this but I accept the husband’s evidence in this regard. There is no doubt though that the wife has continued to pay the council rates, insurance premiums and the cost of repairs and maintenance.
Both parties have purchased motor vehicles since separation, the wife a Subaru and the husband a Ford Fairmont.
The wife has made at least one purchase of shares since separation, namely 1,290 Geo-dynamic shares on 24 May 2005 for $2,000.
The wife has also paid for improvements to the Darwin property since separation. The improvements include recarpeting the upper storey and repainting various areas of the home.
Each party has continued to make contributions to their respective superannuation funds with the husband paying approximately $60,000 into his account.
In relation to the post-separation period of time I find that the wife’s contributions are greater than the husband’s. This is due primarily to the contributions that she has made in caring for and financially supporting the children.

Conclusion on contributions

The husband’s counsel submitted that the contributions should be assessed at 55%/45% in the wife’s favour, whereas the initial submission of the wife’s counsel was that without assessing a percentage division each party should effectively retain their own assets and liabilities. In his final address though the wife’s counsel indicated that broadly speaking that result was equivalent to a 70%/30% division in favour of the wife, but then he went further and indicated that regardless of the findings made as to the asset pool, that percentage division was an appropriate one taking into account all the contributions of the parties.
The husband’s case is that the contributions of the parties were equal but there should be a loading of 5% to the wife because of the contributions made by the wife’s parents to the wife’s businesses on behalf of the wife.
With the wife, as referred to in her case outline document, she says that “the husband did not make a financial, non-financial, direct or indirect contribution in any way towards the acquisition, maintenance or improvement” of almost all of the assets owned by the wife. The wife even claims that the husband’s alleged rejection of “the wife and the children on a personal, financial and physical level after 1992, was unconscionable and amounted to a negative contribution for which the wife must receive a substantial loading”. Now, even if the Family Law Act 1975 permitted me to do what the wife suggests, which I seriously doubt, I have of course found against the wife in relation to these issues. However, that still leaves me to make an assessment of the appropriate percentage division by weighing up all of the contributions of the parties.
The summary of my findings is that the initial contributions do not favour either party, the wife made the greater financial contributions during cohabitation pursuant to Section 79(4)(a) of the Act, the husband made the slightly greater non-financial contributions during cohabitation pursuant to Section 79(4)(b) of the Act, the wife’s contributions during cohabitation pursuant to Section 79(4)(c) of the Act far outweigh the husband’s, and the wife made the greater post-separation contributions. Thus, in assessing all of these contributions there needs to be a significant weighting in favour of the wife, but I do not consider that it should be quite as high as 70%/30% in her favour. I find that the appropriate percentage division is 67.5%/32.5% in the wife’s favour.

Section 75(2) of the Family Law Act 1975

Although there are relevant factors arising under this heading both parties submit that none of these factors require any adjustment to the percentage division resulting from a consideration of the respective contributions of the parties. Thus, I do not need to consider this any further.

Section 79(4)(d), (f) and (g) of the Family Law Act 1975

Next, I am obliged to consider the effect of my proposed orders upon the earning capacity of either party (Section 79(4)(d)); any other order made under the Act effecting a party to the marriage or a child of the marriage (Section 79(4)(f)); and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or has provided for a child of the marriage (Section 79(4)(g).
In relation to the first matter, the evidence does not indicate that the earning capacity of either party will be affected by the proposed orders.
In relation to the second matter, there is no other order to be taken into account.
With the third issue there has not been a child support assessment in this case, and I do not expect that that will change. However, I have referred to and taken into account the fact that since separation the husband has not made any financial contribution to the support of the children except when they have been with him. The responsibility to financially support the children has fallen on the wife.

Conclusion

The relevant net assets of the parties should be divided 67.5%/32.5% in the wife’s favour.

Just and equitable

Pursuant to Section 79(2) of the Act, the Court cannot make an order unless the Court is satisfied that in all the circumstances it is “just and equitable” to make the order. To assess that I need to stand back and consider the practical effect of my proposed orders (Waters & Jurek (1995) FLC 92-635; JEL & DDF (2001) FLC 93-075; Phillips & Phillips (2002) FLC 93-104).
The net asset pool comprises a monetary equivalent of $9,024,052.63. Thus, the effect of my decision is that the wife is entitled to net assets to the value of $6,091,235.53 and the husband is entitled to net assets to the value of $2,932,817.10.

The wife has the benefit of net assets totalling $6,576,538 calculated as follows:
Assets
The property at Darwin  $1,060,000
The property at Alice Springs  $640,000
Shares in public companies  $219,383
The wife’s interest in the jointly owned ANZ shares
with the husband  $59,595
Subaru Liberty motor vehicle  $24,350
The wife’s interest in CN Pty Ltd  $1,275,000
The wife’s OS Business  $2,455,000
The wife’s superannuation entitlement with the P
Superannuation Fund  $165,231
The wife’s superannuation entitlement with the JRB
Superannuation Fund  __$798,764
Total  $6,697,323
Liabilities
The mortgage secured over the Darwin property  $120,785
Net  $6,576,538
The husband has the benefit of net assets totalling $2,447,514.63 calculated as follows:
Assets
The commercial property  $2,000,000
The husband’s joint interest with Ms M in the following
properties:
U1 property  $193,750
U2 property  $187,500
W property  $188,750
Debts of the husband’s business retained by Ms M  $100,784.63
The husband’s interest in the jointly owned ANZ shares
with the wife  $59,595
The husband’s loan account with AF Pty Ltd  $296,693
Ford Fairlane motor vehicle   $22,000
Nissan Maxima motor vehicle  $8,000
The husband’s superannuation entitlement with the MLC
Superannuation Fund  ____$271,442
Total  $3,328,514.63
Liabilities
Mortgage secured over the commercial property  $516,000
The husband’s share of the mortgages secured over the
following properties:
U1 property  $70,000
U2 property  $150,000
W property  $145,000
Total        $881,000
Net  $2,447,514.63
Thus, the wife will have to pay to the husband the sum of $485,302 (to the nearest dollar).
The wife will have ample assets to enable her to meet this payment, but of course it will be up to her what arrangements she makes to achieve that.
There was an issue as to who should have the property at Alice Springs. However, it is registered in the name of the wife, and in his evidence the husband did not present any future plans that he specifically had for this property. In particular, it was not suggested that he would want to live there. Thus, the wife should have this property as part of her entitlement.
The wife indicated that from her point of view the children should have the jointly owned ANZ shares, but that is not the husband’s position. He says they should be divided equally between the parties and they can each do what they want to with their shares. That is how I propose to proceed.
The wife sought an order that the husband “procure a discharge of dealing number […] with respect to [the Alice Springs property]”, however, there was no evidence presented in support of this order and no submissions were made in respect of it. Thus, I do not propose to include it in the orders that I make.
As a result of the orders I propose the wife will retain her business in Darwin, her interest in CN Pty Ltd, her properties at Darwin and Alice Springs subject to the mortgage secured over the former property, her shares in public companies, her motor vehicle and her superannuation entitlements. She will have to pay the husband $485,302, but she will continue to earn income from her business. She will of course continue to have the major financial responsibility for supporting the children.
For the husband’s part he will retain his business together with his loan account in that business, the commercial property from where he operates his business, his joint interest with Ms M in the properties at U and W, his entitlement to the jointly owned ANZ shares, his motor vehicles and his superannuation entitlement. He will also receive from the wife the sum of $485,302.
The husband will continue to earn income from his business and he will spend time with the children and support them whilst they are with him.
Having considered the result of my proposed orders and revisited the history of the relationship between the parties, and their respective contributions, there is nothing which would not render it just and equitable to make the proposed orders.

I certify that the preceding 336 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 February 2008.

Associate

[2009] FamCA 77

9 February 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Injunction