Hamill & Hamill

[2007] FamCA 1736

FAMILY COURT OF AUSTRALIA

HAMILL & HAMILL [2007] FamCA 1736

FAMILY LAW – CHILDREN – Mother’s proposed relocation – Children’s best interests – Evaluation of proposals – Meaningful relationships with young children – Order for graduated increase in time spent with father

FAMILY LAW – PROPERTY – Assessment of financial and parenting contributions – Add-backs – Splitting of superannuation

Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Pierce & Pierce (1999) FLC 92-844
Taylor & Barker (2007) 37 FamLR 461
Townsend v Townsend (1995) FLC 92-569
West & Green (1993) FLC 92-395

APPLICANT: Mr Hamill

RESPONDENT: Ms Hamill

FILE NUMBER: CAF 495 of 2006

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 26, 27, 29, 30 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nash

SOLICITOR FOR THE APPLICANT: Mr Cameron

COUNSEL FOR THE RESPONDENT: Mr Brzostowski

SOLICITOR FOR THE RESPONDENT: Ms Clifford

Orders

1. The parties equally share parental responsibility of the children namely, E born … July 2004 and L born … June 2006.

2. The mother be restrained from relocating the children’s residence from outside of the Australian Capital Territory/Canberra without the prior written consent of the father. 

3. The children live with the mother.

4. E spend time with the father until 1 July 2010 as follows:

   (a)       From 3:30pm Wednesday to 5:30pm Thursday each week

   (b)       From 9:30am Saturday to 5:30pm Sunday each alternate weekend

5. L spend time with the father until 1 July 2008 as follows:

   (a)       From 3:30pm to 5:30pm each Wednesday and Thursday

   (b)       From 9:30am to 11:30am each alternate Saturday

   (c)       From 3:30pm to 5:30pm each alternate Sunday

   coinciding with the time that E spends with her father.

6. As of 1 July 2008 L spend time with her father as follows:

   (a)       From 9:30am to 5:30pm each Thursday

   (b)       From 9:30am to 5:30pm each alternate Saturday

   (c)       From 9:30am to 5:30pm each alternate Sunday

   coinciding with the time that E spends with her father.

7. As of 1 July 2009 L spend time with her father as follows:

   (a)       From 3:30pm Wednesday to 5:30pm Thursday each week

   (b)       From 9:30am Saturday to 5:30pm Sunday each alternate weekend

   coinciding with the time that E spends with her father.

8. As of 1 July 2010 the children live with their father as follows:

   (a)       From 9:30am Monday to 9:30am Wednesday each alternate week

   (b)       From 9:30am Friday to 9:30am Wednesday in the next week

   (c)       For one half of each of the Australian Capital Territory school holiday periods as may be agreed between the parties.

9. Both parties forthwith make arrangements to enrol into the ARCK Program at the Child and Family Centre and that both parties be required to complete such program at the direction of the Child and Family Centre. 

PROPERTY

1. There be a division of property interests, including assets, liabilities and financial resources (excluding superannuation) in the proportions of 55% to the wife and 45% to the husband.

2. The parties forthwith do all things and sign all documents to offer for sale the property at … W in the State of Queensland (“the [W] property”) according to the following arrangements:

   (a)       For the first six weeks:

   (i)By an agreed agent (or failing agreement by an agent nominated by the President of the Real Estate Institute of Queensland or equivalent body)

   (ii)At an agreed price, or failing agreement at a price recommended by the agent above the valuation price of $675,000.

   (b)       If a contract has not issued after six weeks:

   (i)By auction with an agreed agent

   (ii)At a reserve price as agreed of failing agreement as recommended by the agent.

   (c)       Upon settlement of the sale proceeds to be dealt with as follows:

   (i)Payment out of all costs, commissions and fees associated with the sale

   (ii)Adjustment of rates and statutory outgoings

   (iii)Payment out of the joint ING loan account number …6 (referred to by the parties as “the [W] mortgage”)

   (iv)Reimbursement to the party or source from which the funds were paid of the upfront costs, including auction costs, required prior to the sale; and

   (v)The balance to be held in trust pending final distribution of property pursuant to Order 10 of these orders

   (vi)Before the balance held in trust is distributed to the parties the parties determine an amount, if necessary with the assistance of an agreed accountant, to cover estimated total capital gains tax liabilities accruing from ownership of the W property in respect of both parties, such amount to be retained in trust and paid to discharge such capital gains tax liabilities at the appropriate time, with any balance to be paid equally to the parties.

3. The husband transfer to the wife all his right title and interest in the Subaru Impreza motor vehicle.

4. Prior to or simultaneously with the transfer in Order 11:

   (a)       The wife transfer to the husband all her right title and interest in the property at … G in the state of Queensland (“the [G] property”)

   (b)       The husband release the wife from all liability with respect to the existing ING loan secured by way of mortgage over the G property, or otherwise if necessary payment and discharge that loan and mortgage in order to remove the liability of the wife

   (c)       The wife transfer to the husband all her right title and interest in the property at … H in the state of Queensland (“the [H] property”)

   (d)       The husband release the wife from all liability with respect to the existing ING loan secured by way of mortgage over the H property.

5. The husband retain to the exclusion of the wife the whole of his interest in shares held in his sole name or jointly with other persons.

6. For the purposes of calculating the wife’s 55% share, as referred to in Order 10, the property pool will include the sum of $22,400 previously redrawn from the ING mortgage account for the wife’s costs and the value of the car transferred to her at $16,000.00.

7. For the purposes of calculating the wife’s share, as referred to in Order 10, to the extent that it is necessary the husband and the wife shall cause a cash payment to the wife sufficient to ensure that her share equates to 55%.

8. In accordance with s 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of the husband from his interest in the Military Superannuation benefits Scheme (MSBS), the wife is entitled to be paid (by the Trustee of MSBS) 15% of the splittable payment and there shall be a corresponding reduction in the amount the husband would be entitled to receive but for these orders.

9. The operative time for Order 17 is four business days after the service of these orders on the Trustee.

10. Unless otherwise specified in these orders each party retain as against the other all items of property in their possession or control as at the date of these orders and each party indemnify the other against all liabilities in the name of that party and all liabilities encumbering any item of property to which that party is entitled pursuant to these orders.

11. The wife’s application for spousal maintenance is dismissed.

12. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

13. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

14. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 495 of 2006

MR HAMILL

Applicant

And

MS HAMILL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The conclusions that I have reached in this matter are that in essence I should make orders as to the two children in accordance with the minutes that were presented by the Independent Children's Lawyer requiring the mother to remain in Canberra and the program of progressive time with the children to be implemented as was recommended by the Independent Children's Lawyer. 

2. So far as property is concerned, I will in due course outline a number of the determinations and findings I make about what have been described in the parties' single balance sheet as add-backs.  But subject to those matters being dealt with, I propose that the property of the parties other than superannuation be divided as to 55 per cent to the wife and 45 per cent to the husband.  I propose that there should be a splitting order in relation to the husband's superannuation of 15 per cent to be distributed to the wife.  I will make some comments about why I think that is appropriate in due course. 

background

1. The matter before me involved proceedings between the applicant father, Mr Hamill, and the respondent mother, Ms Hamill, about the division of the parties' property and the time the parents would spend with each of their children.  It involved, incidentally, or perhaps principally on the part of the mother, a proposal by her that she might relocate with the children to Queensland. 

2. The matter was originally commenced in the Federal Magistrates Court in 2006 and was transferred to this Court on 13 October 2006 when the parties consented to the matter proceeding in accordance with Division 12A of the Family Law Act 1975, which is the less adversarial trial process of this Court.  That consent was given in February of 2007. 

3. By way of background, I give the following facts.  This is of course not comprehensive about all of the facts, but it deals with those which in many respects I regard as most significant.  The father was born in September 1972 and is currently about 35.  He is employed by the Australian Defence Force.  The mother was born in August 1974 and is currently aged 33.  She is a professional.  The parties have two children E, born in July 2004, and L, born in June 2006.  The parties began to live together, if I were to accept the evidence of the wife, in November 1998, or in January 2000, if I were to accept the husband's evidence.  Both accept that they lived in a property together in Sydney during the course of 1999, although during that period the husband was away for extensive periods in the course of his duties.  The parties married in January 2001 and separated a number of times during the relationship.  They separated finally in early 2006 and the mother left the former matrimonial home in May 2006. 

4. When the parties first met in Sydney the father was working in the Defence Force and the mother was an office assistant and in the process of completing a Bachelor Degree.  The father was deployed four times during the time the parties knew each other, including four months in Far North Queensland, four months in the Pacific in 1999, seven months in the Middle East in 2003 and from December 2004 until May 2005 in the Pacific. 

5. In the year 2000 the mother resigned from full-time employment to focus on her degree and she worked part-time.  She then worked full time from January 2001.  When the parties were married in early 2001 they moved into Defence married quarters until the husband was posted to Brisbane in January 2002.  In September of the same year the parties bought a property in Brisbane for $381,000 and borrowed about $296,000.  This became the home in which the parties lived.  If the mother were to relocate to Queensland, she indicated this was the home in which initially she wished to live.  In the preceding months the father's father, Mr Hamill senior, lent or gave the parties the sum of $15,000.  I will return to that matter in due course, although in the end it probably bears not a lot on the final outcome. 

6. The mother continued working in Brisbane until June 2004, except for a brief period from May 2003 to October 2003 when she was made redundant.  The parties bought a further property at D for $250,000 which was acquired with more than 100 per cent with a borrowing of $260,000.  In September 2003 the mother became pregnant.  E was born in July 2004.  In September 2005 the father bought the property known as the H property for $313,000 and borrowed some $327,000.  In the following month the mother became pregnant with L.

7. In December 2005 the parties moved to Canberra and shortly after that they separated.  On 30 May 2006 the parties entered into interim consent orders in the Federal Magistrates Court in Canberra.  These orders read in part as follows:

   (1)  That the mother be permitted to take the child [E] to temporarily live in [rural Victoria] provided that -

   among other things –

   (b) the mother return [E] to Canberra in accordance with order 2 below. 

8. Order 2 read:

   That within three months of the birth of the child the mother is presently carrying, the mother return [E] and the child she is presently carrying to Canberra unless otherwise agreed between the parties. 

9. The orders provided for what was then described in the legislation as ‘contact’ between the father and E.  They also stated in order 9:

   That upon the mother's return to Canberra with the children in accordance with order 2 above, the father arrange and provide for their suitable accommodation. 

10. The indeterminate nature of those orders was bound to produce difficulties –  and it did.  Further orders were made on 3 October 2006 which provided that:

    (1)  Upon the father's complying with order 9 of the orders made on 31 May 2006, the mother is to relocate with the children to Canberra forthwith. 

11. Order 5 provided:

    That pending the matter coming before a Judge of the Family Court, the husband may draw from capital moneys to house the wife in Canberra.  The decision as to whether this should continue and how it is to be characterised is for the Family Court. 

12. Further orders were then made by me on 23 October 2006 which provided, in part:

    (1)  The children's father will make provisional arrangements for the accommodation of the mother and the two girls on their return to Canberra.  To facilitate such arrangements he is at liberty to withdraw from the parties' redraw facility sufficient funds to pay for such accommodation.  The characterisation of the application of those funds will await final determination between the parties. 

    (2)  Upon the father's lawyer advising the mother's lawyer of the suitability of such accommodation, the mother will return the children to Canberra within seven days of such notification and will live in the provisional accommodation until she finds what she regards as suitable longer-term accommodation for herself and the girls pending the hearing of the issue of relocation between the parties.

13. The assistance I received from counsel, and in particular from the Independent Children's Lawyer in both drafting the orders and in cross-examination, was much appreciated.  I was also significantly assisted by the report that I received from Ms S who was the family consultant in this matter.  I regard the report that was presented to be a very good example of reports that are appropriate in matters such as this and her evidence was both carefully given and very considered.  I felt her advice and opinions as an expert were of significant value. 

14. I would also like to acknowledge that this is a matter which, so far as the children are concerned, has been from day one very finely balanced.  As the Chief Justice has remarked in the past, relocation cases are not problems because problems have solutions; they are dilemmas.  A dilemma either has no solution or two answers, neither of which in the circumstances is likely to be very satisfactory. 

15. Both counsel for the mother and father acknowledged that a recent decision of the Full Court of the Family Court in Taylor & Barker[1] was an appropriate starting point in finding the law and the appropriate processes for dealing with matters such as this.  This was a matter in which the Court considered a relocation proposal in many respects not significantly different from that in this particular matter. 

    [1] (2007) 37 FamLR 461

best interests of the children – s 60cc

1. In dealing with any children's matter under the Family Law Act I have to acknowledge at the beginning that the objects and principles set out in s 60B provides, as the trial Federal Magistrate suggested in Taylor & Barker, a backdrop against which the provisions in Part VII of the Act apply.  The objects of the legislation are to ensure that the best interests of the children are met by ensuring that the children have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; protecting the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare, development of the children.

2. These are matters that are well-known to counsel, but I repeat them for the benefit of the parents, and in particular for the benefit of the mother who is not here today.  She will read them in due course.  The principles underlying these objectives are that, except when it would be contrary to the child's best interests, children have a right to know and be cared for by both their parents;, that children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents; that parents jointly share responsibilities and duties about the care, welfare and development of their children; parents should agree about the future parenting of their children; and children have a right to enjoy their culture.  There are other provisions about what might occur in cases where in the special category set out under the Act the children come from an Aboriginal or Torres Strait Islander background. 

3. Overriding all decisions and in relation to any order in which a child is involved, the Court must regard the best interests of the child as the paramount consideration.  That is contained in s 60CA. 

4. As their Honours said in Taylor & Barker, the starting point in relation to the consideration of matters relating to children is under the provisions of the Act which describe what constitutes the children's best interests.  These are set out in s 60CC and provide that there are two primary considerations.  These are: (a) the benefit to the child of having a meaningful relationship with both of the children's parents, and (b) the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. 

5. In this matter there is no suggestion from either parent that there is a need to protect the children from physical or psychological harm, except in the more attenuated way of each of them having some suspicions about the ability of the other parent to properly encourage the child in a meaningful relationship with the other parent.  However, both parents agree that the children benefit in having a meaningful relationship with both parents, although the way in which they seek to express it and seek to have it expressed in the relationships is different. 

6. The additional considerations were reviewed by each counsel and by the Independent Children's Lawyer during the course of their addresses to me at the conclusion of the finalisation of the hearing. I repeat them here, notwithstanding that the terms of the Act are well known to all of the parties involved. 

1. In this matter there are no views expressed by the children which would have an effect upon the determination I should make.  I say that even taking account of the more extended meaning expressed in some cases of the “happiness” of the children to be involved in one arrangement or the other.  It is clear from the family report the children enjoy a good relationship with each parent, and moreover, it is more likely than not that being separated from one, in this case if it were to be the father, would cause them anguish.  To be separated from the person identified by the family consultant as their primary attachment, being the mother, would no doubt produce further distress.  I need to consider the practical implications of that in due course.  But I mention it only to the extent that it is thought possible that happiness of the children might be in some way recognised as an expression of their views – although an implicit one. 

2. The second matter I am to take into account is the nature of the relationship of the children with each of the children's parents and with other persons, including grandparents or other relatives of the child.  In this case it is common ground that the children have a primary attachment and relationship with the mother and a secondary attachment with their father.  The father's time with the children has been limited.  In the case of L, there have been feeding difficulties which have impeded both his ability to spend time with her, and perhaps more importantly, the child's ability to spend time with him in the sense that she cannot properly be separated from her mother while her difficulty is occurring. 

3. It may have been thought at one early point that this was some sort of tactic on the part of the mother to prevent the father from having time with L.  However, I am satisfied on the evidence (and indeed, I emphasise as part of the less adversarial trial process as the parties investigated the issues relating to L's feeding), that each of the parents was concerned to ensure that she received the best possible care, and in particular the best sort of food – in this case principally breast milk.  The relationship between each of the parents, therefore, and the child is appropriate, although it must be acknowledged, as the family consultant pointed out, that the relationship between each of the girls and their mother is the primary relationship. 

4. The children have in more recent times, as a result of difficulties that have arisen during the course of the time that the children spend with the father, been seeing more of their paternal grandparents who have been involved in coming to Canberra to be around for the children on a regular basis.  The relationship between the paternal grandparents and the mother has not been a happy one, according to the affidavits of the parties.  However, that does not appear to have interfered with the fact that the children have developed an appropriate relationship with their paternal grandparents. 

5. The maternal grandparents live in Western Australia where they conduct a business.  They have evinced an intention to leave Western Australia, sell their business and relocate to Brisbane.  They have visited from time to time both together and separately, but they certainly have not had the same opportunities to spend time with the girls as have the father's parents.  I am unable to form any strong view about the relationship between the grandchildren and their maternal grandparents, but I am prepared to infer – and I think it is reasonable in the circumstances that I should do so – that the relationship is an appropriate one.  I cannot infer, nor is there evidence to support the proposition however, that it is a close relationship. 

6. The necessary effect of the children's moving to Brisbane with their mother, as she seeks, would be that there would be a diminution in the relationship between them and their paternal grandparents.  It is possible that there may be an increase in the relationship between them and their maternal grandparents. However, the evidence of the mother's mother was somewhat equivocal on when, how or indeed, if, the move would occur and the effect that would have upon her ability to provide support for and provide time with the mother and the girls. 

7. I am obliged to consider the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  It would be fair to say that the parents in this matter detest each other at present.  It is difficult to find in their relationship anything that resembles the sort of cooperation that would be best for the children.  It is not my place to attribute blame to anyone, nor to indeed criticise anyone for his or her failure properly to maintain the relationship with the other parent.  Nevertheless, the children suffer because the parents do not and it is important for the parents to try to improve that relationship in the future. 

8. During the course of this hearing, which has been conducted over many months, the parents had to some extent made, from time to time, concessions about the ability of each other properly to look after the children and this has been both encouraging and appropriate.  In addition, the parents have each agreed that they will attend (if they are in Canberra) the program known as ARCK which is conducted to enable parents to work together to overcome their difficulties in cooperating about the upbringing and care of the children.  In other places in Australia the program is known as POP, which is not a relationship with father and child, but rather, a Parenting Orders Program which deals with people who are having difficulties implementing arrangements about their children. 

9. The willingness of each of the parents to encourage the children to have a relationship with other parents is at least on the surface not in issue.  Both the mother, who possibly would have in the circumstances less reason to do so, and the father have agreed that they ought to work towards a situation in which the children spend significant time with each of them.  This is an appropriate and proper concession.  I am not sure whether it was extracted by a process of litigation or by a genuine willingness on the part of both parents to move toward such a position, but the children are likely to benefit from it and of course in terms of primary considerations it is a matter I am obliged to take into account quite strongly under the terms of the Family Law Act. 

10. It is difficult to know precisely what is meant by a primary consideration.  Primary in some respects means something that is preliminary to something else.  It may also mean that it has primacy over all other matters or it may mean that it is something to which people might look first.  My own preference, if I were being asked about it, would be for the last of those three; in other words, that the first thing that someone looking at the questions of the best interests of the children should do is to observe the primary considerations.  However, that remains a matter for determination in due course.  In any event, it remains an important element of the proceedings before this Court and is reflected, at least when I look at their statements, in the parents’ wish to see a close and loving relationship between the children and the other parent. 

11. I cannot leave this aspect of children’s best interests, however, without commenting on the fact, as was submitted to me by the father’s counsel, that the father's secondary proposal – and I am aware that I have not actually outlined the parents' proposals at this point – is that he would, if the mother were permitted to move with the children to Brisbane, himself resign from his present employment in the Defence Force and would move to Brisbane.  This was urged on me by the father’s counsel as an indication of the mature consideration of the father and the fact that he was prepared to sacrifice his career in the interests of being closer to the children.  In broad terms I accept that as being a relevant submission.  I do not necessarily, however, take the view that the mother, by the fact that she wants to move to Brisbane, is thereby sacrificing the interests of the children in doing so.  I accept the genuineness of her desire to move to Brisbane but do not (for reasons I will outline in due course) necessarily accept that that should overcome other factors relating to the best interests of the children. 

12. The Act requires that I should take account of the likely effect of any changes in the children's circumstances and the effect of any separation of the child from either of the parents or from any other relevant person.  In this case if the girls moved to Brisbane and the father did not, then taking account of the recommendations of the family consultant about the need for young children to spend time with each parent on a regular basis separated by only a few days, that move would have a particularly profound effect on these young children at this age.  Each age is different, each child is different, and I accept that it is impossible properly to generalise about a whole range of things.  However, it is clear on the evidence before me (uncontradicted) that if the mother were to be living in Brisbane and the father were to be living in Canberra, the children's relationship with their father would be significantly affected.  This would be so even if, as the mother had originally suggested, the father might be at liberty to go to Brisbane every second weekend to spend time with the children. 

13. The effect of the family consultant's evidence is that the separation of a child from a parent for more than a couple of days at the ages of these two youngsters would have a profoundly deleterious effect upon them.  I am unable personally to find that is the case, except in the context of this case on the basis of the evidence before me, but there is no contradictory evidence.  Moreover, the family consultant in the course of her evidence has stipulated that the move by the children to Brisbane would be likely to generate difficulties in itself for the children because it would disrupt the environment in which they are currently living and would be detrimental to their welfare.  This she expresses in her report in terms that make it clear that, in her opinion, if the mother were to move to Brisbane this would in itself have a major effect upon the children.  In paragraph 5.2 she says:

    Any major changes in their living situation may have an emotionally damaging effect on them.  For them to move with their mother a significant distance away from the father would compromise the relationship they have developed with him.  Children of [E] and [L]'s age would be unable to spend holiday time with their father away from their mother for more than a few days. 

14. That says nothing of course about the financial consequences of the move in that there would be additional costs associated with the children's travelling from Brisbane to Canberra or the father's travelling from Canberra to Brisbane to see the children if that were to be the arrangement.  It is of course different if the father were to move to Brisbane.  I do not discount that possibility in these arrangements, although I will return to it in due course. 

15. If the children were to move to Brisbane, even if the father were to move, it is probable that they would have a reduced relationship with their paternal grandparents.  I raise that as an issue without necessarily concluding that it is a determined one or suggesting that it would be something that ultimately tipped the balance in one way or the other. 

16. There are inevitably, as a result of the matters I have just raised, practical difficulties and expenses associated with the children communicating or spending time with their father if the mother were to move and the father were not.  If their father were to move to Brisbane, there would not be any practical difficulties as such in his spending time with the children, except that the father at present is in what I regarded as a somewhat unlikely situation of having negotiated with his employer, the Australian Defence Force, to have relatively flexible working arrangements which mean he can leave work relatively early in the day and is able to work in some circumstances four days a week.  These arrangements have enabled him to participate more fully in the young lives of the children and are conditions which would not normally be available, in my experience and on the evidence of the father, through other organisations with whom he might obtain employment in Brisbane. 

17. Moreover, although there is some prospect of his obtaining work in Brisbane, that would be likely to take him away from Brisbane on a regular basis and that would also interfere with his spending time with and communicating with the children.  This of course is not a consequence, directly speaking, of the mother's decision to move.  It is necessarily concomitant to the father's being required to move. 

18. I am also obliged to look at the capacity of each of the children's parents to provide for the needs of the children, including their emotional and intellectual needs.  Neither parent ascribes any particular detriment to the other parent's ability in this regard.  However, it is significant that the mother has expressed in the strongest possible terms in her affidavit the fact that being obliged to remain in Canberra would be of great emotional sadness to her and that, she believes, may affect her ability properly to care for the children.  This was set out in a number of paragraphs in her affidavit starting at paragraph 51 and following in which she outlined a range of symptoms, which I was asked by her counsel to take into account as representing the mother's state of mind and emotional fragility. 

19. I indicated to the mother’s counsel during the course of the proceedings before me that in my opinion the paragraphs to which I have referred do not necessarily lead inexorably to the consequences to which he refers.  In particular, due to the absence of any evidence of those consequences from Dr C who has been a regular treater of the mother’s for some time, I am not convinced that those consequences would eventuate.  The mother suffered from not having that evidence and was to some extent obliged to rely upon her own observations.  Those observations, in my opinion, were equivocal about why it is that she found it necessary to move to Brisbane, and more particularly, why it would be the case that if she were to remain in Canberra that this would of itself cause her distress or physical and mental inability to continue with her life as she wanted to.  

20. This is perhaps illustrated, at least in part, by the fact that part of the mother's proposal was that if she goes to Brisbane she was intending to work part-time and not become a full-time worker until at least the children were both at school.  However she showed an almost total unwillingness to even consider the possibility she might work if she lives in Canberra in the short-term.  This seemed to me to indicate on her part perhaps a lack of cognitively supportable reasoning for her dislike for living in Canberra.  But that, as I suggested previously, does not detract from the genuineness of the belief that she holds. 

21. The children are both young and unfortunately have been used to a lifetime of conflict between their parents, as was noted in the family report.  There is nothing in their culture or traditions which would cause the Court to take account of any arrangement between the parties.  The parties do have different cultural backgrounds, but it was not suggested by either that this was a reason that I should properly take into account.  Curiously, it was suggested at one point that it was a matter which would deal with the traditionally difficult time of Christmas.  The father's Coptic connections with religion would mean that there would be a later celebration of Christmas Day than with the mother's more traditional western Christian beliefs.  I do not ultimately regard either that date or anything else as being significant in this matter.  Neither party has suggested to me that religion is a crucial element in their lives or in the children's lives or in the factors that should influence me in making a decision. 

22. I am obliged also to take account of the attitude of the parents to the children and the responsibilities of parenthood.  In this regard there are a number of factors I should probably draw attention to.  I have no doubt the father believes the mother has to some extent tried hard to limit his ability to spend time with and to accept the responsibilities of parenthood.  Having observed the mother over a relatively long period in court now, it seems to me that she has certainly not set out to do that in any deliberate way, although that may have been the effect of some of her attitudes and her opinions. 

23. The mother, I think, is concerned first and foremost with the children and is deliberately concerned to ensure that nothing interferes with what she regards as their best interests.  This in turn has generated an element of lack of communication between the parents which both of them comment about.  The father has demonstrated on his part a dismissiveness in relation to the mother which, while he would not formally acknowledge it, is apparently the way in which he treats her both in court and in some of the reported instances of which I have evidence. 

24. It is important for the parents that they should learn in some way to communicate and it is equally important this should be something other than by print communication (before too long).  I hope that the ARCK program, which they have agreed to attend, will assist them towards that objective. 

25. This is not a matter in which either party has alleged, at least in the conclusion of hearing, that there is any violence or any orders of this court or any other court that are likely to interfere with the relationship between the children and their parents. 

26. The question of whether a parent has fulfilled or failed to fulfil his or her responsibilities as a parent is dealt with in part by s.60CC(4) which sets out some prescriptions about what a parent should or should not do.  I do not propose to go through them separately.  I believe that I have dealt with them adequately in the reasons I have given so far. 

parental responsibility and time

1. In this matter each of the parents has agreed that I should make an order that there should be equal shared parental responsibility for the children under s 61DA of the Family Law Act and that to some extent affects the way in which I should approach a consideration of the question about where the children should live and with whom. 

2. The Act (in its new form as it came into existence on 1 July 2006) involves a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.  Equal shared parental responsibility is a matter that is referred to specifically in the Act and involves the fact that parents should be directly involved in questions relating to the care, welfare and development of the children irrespective of whether the children live principally with one or the other or indeed even if the care for the children is to be shared equally between them in a physical way. 

3. There are grounds as a result of which the presumption would not apply, but that is irrelevant in this matter as both parties seek in effect that it should. The Act provides s 61DA(4) that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. There is no such evidence before me, nor do I believe the presumption should be rebutted and I accept the goodwill evinced by the parents in both seeking that there should be equal shared parental responsibility.

1. The Act provides in s 65DAA that if a parenting order states that a child's parents are to have equal shared parental responsibility the Court must (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child and (b) consider whether a child spending equal time with each of the parents is reasonably practical, and (c) if it is, consider making orders to provide for the child to spend equal time with each of the parents.  The Act goes on to provide that if the parenting order provides that the parents are to have equal shared parental responsibility but the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, and consequentially, consider whether the child spending substantial and significant time with each of the parents is reasonably practicable. 

2. The definition of "substantial and significant time" is contained in s 65DAA(3).  The section in fact provides very little guidance about what would constitute substantial time because it has no temporal connotations whatsoever, notwithstanding that, most times people would associate substantial, at least in part, with quantity of time rather than simply particular events.  But what the section does is prescribe in some detail the sorts of experiences the children ought to have with their parents.  In particular, it means that the time that the child spends with a parent should include both days that fall on weekends and holidays and days that do not fall on weekends and holidays.  It also means that the time the child spends with the parent allows the parent to be involved in the child's daily routine and occasions and events that are of particular significance to the child.  It also means that the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. 

3. The matter before me was not conducted on the basis that there should be an immediate move to a situation where the children should spend equal time with each of their parents.  There was an acknowledgment, properly on the part of the father, and certainly well-supported by the family reporter, that the children were of an age where this was totally inappropriate and that it would not be for some years that the children ought to be in a situation where they spend more substantial time with their father.  Accordingly, in my opinion, the evidence for a number of reasons, including the quite proper views of the parties, suggests that there should be no order for equal shared time at this point.

4. That relieves me of the obligation, as their Honours pointed out in Taylor & Barker, to consider whether such a order would be reasonably practicable.  I would say, however, in relation to that issue, that if the father were living in Canberra and the mother in Brisbane the orders could not possibly be practicable - for fairly obvious reasons.  However, that consideration is a factor that I need to bear in mind in dealing with the second proposition, which is that the children should spend substantial and significant time with their father. 

5. Neither party has set out formally a proposal that would say that this is what should occur.  It does not relieve me of my obligation under the Act to give appropriate consideration to this proposal.  Indeed the terms of the orders put forward by the Independent Children's Lawyer, which I have indicated in broad terms I propose to make, involves a progressive arrangement which would lead ultimately to the children spending substantial and significant time with their father.  However, I note in the minutes of orders that I have prepared that I have not made arrangements about specific days and that is a matter which I would ask you all to give consideration to when I show you my orders shortly. 

6. The question, therefore, is, if the children are to spend as a result of these orders either immediately or in the future substantial and significant time with their father as well as with their mother, whether such an arrangement is practicable.  In this regard the Act provides some guidance in s 65DAA(5).  Subsection (5) provides as follows:

   In determining for the purposes of sub-sections (1) and (2) –

   that is, whether it would be reasonably practicable for a child to spend equal time or substantial and significant time with each of the child's parents –

   the Court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents, and;

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangement of that kind, and;

   (d) the impact an arrangement of that kind would have on the child, and;

   (e) such other matters as the Court considers relevant. 

7. These are important considerations, particularly in the light of the proposal that the parties might, at least on one version of the proposals of each of them, live in different cities. The implementation of the defined substantial and significant time would be certainly impeded by the parents living a long way apart from each other and by a continuation, in this case, of the parents' incapacity to communicate effectively with each other and to resolve difficulties that arise between them. The capacity of either or both of them to communicate may be impeded by arrangements that require them to live in different places in different times.  There is no doubt, given the relationship between the children and each of their parents, that that would have an impact on the children.  I am obliged to take this into account under subsection (5)(d). 

evaluation of parties’ proposals

1. It is appropriate to outline briefly, although it was something of a changing menu, the orders and arrangements that each of the parents have suggested.  The mother initially wanted to move to Brisbane to live in what was the former family home.  She wanted to enjoy the support of her parents whom she expected to move reasonably soon (if not before she moved) to Brisbane.  She also indicated in the course of her evidence, in affidavit form, that she expected to have a network of support in Brisbane which she felt was missing to her in Canberra.

2. The mother, I should add, had an offer of a job in Brisbane, although the terms of that offer were relatively vague and ultimately were not tested by cross-examination.  I think tactically that was a wise move by counsel in that the offer in its terms was not sufficiently strong and may have been strengthened by further questions.  The arrangement of the mother first involved her returning to the family home.  Subsequently, for practical reasons I suspect, it was agreed that the family home be sold.  There arose very late in the proceedings for the finalisation of the hearing a dispute about valuation which was really unresolvable without the hearing aborting at this point.  It seems to me that the mother probably agreed in the end to the sale of the family home (admittedly reserving herself the right to bid at the auction if she wanted to do so) to enable the hearing to proceed, for orders to be made and for the matter to go on. 

3. However, the advantages that might well have been associated with her returning to an environment with which she was familiar had dissipated - along with her concession.  She still says that she wants to live in the area of the former family home, which is about six miles from the CBD of Brisbane.  She gave evidence about that.  She said initially that her network was associated with that area and it was a good place to bring up the children.  It appears that the network to which she was previously referring has somewhat attenuated in that at least one of her friends has moved out of Brisbane at some distance and has now taken up a job that involves substantial overseas travel.  This could I believe somewhat limit that person's capacity to contribute to the wellbeing of and support of the mother in her new environment.  Another of her friends lives some half an hour away.

4. I am not satisfied on the evidence before me from the mother that she has a substantive or substantial network of support in Brisbane and I am far from satisfied that it is likely that her parents will move to Brisbane either immediately or in the near future.  Nevertheless, it is her firm and unalterable belief that she will be happier – and I use that word with some reticence given the terms of Taylor & Barker – in Brisbane than she would be in Canberra. 

5. The financial possibility of her being able to buy another home is not something which was explored at great length.  It appears that she has a loan approved in advance for some $200,000 and she had expressed in her affidavit the view that she would be able to buy a home for that, plus what she is likely to get out of the property settlement in this matter as a result of my determination of the division of property.  I do not know whether that is so or not.  There is no other evidence, apart from her somewhat general view about it.  I am prepared to assume that with the sort of money she is talking about, she probably could.  However, the same of course would apply in Canberra.   

6. Her ability to support the mortgage is a matter of some concern to me, although not to her.  She did not appear to have any difficulty with the proposition that she would be able to cope.  Admittedly in her affidavit she sets out in some length the likely costs of the mortgage repayments and compared that with the rent in Canberra and her ability to look at these matters is impressive itself - but not necessarily conclusive. 

7. The father originally proposed that the mother should be obliged to remain in Canberra and the children should live with him for equal time and spend that time with him in Canberra.  He amended that proposal before the finalisation of the hearing began by saying through his counsel that if in fact the mother were to be permitted to live in Brisbane with the children that he would resign his present employment and would move to Brisbane where he would take up employment, probably as a manager or with a professional firm given his qualifications.  This was not his first choice.  It would of course affect his career according to his counsel, but it was something he was prepared to do on the basis that this would enable him to be close to his children. 

8. His choices therefore were that the mother should be obliged to remain in Canberra, with equal time between both parents, if not immediately, very shortly afterwards.  Alternatively, if he were to go to Brisbane, he was a little vaguer as to what he actually wanted to happen because his employment opportunities would be quite different and his ability to look after the children for half of the time would certainly be limited. 

9. Nevertheless, in each case the question is, would the implementation of those matters be reasonably practicable.  In considering this matter it is appropriate, in my opinion, in conformity with Taylor & Barker to move to this point of the determination before formally looking at the question of relocation.  The majority judgment of Taylor & Barker indicated that although previously it had been thought that the question of relocation should not be separated from the proper consideration of other matters relevant to children's orders, it now seemed, in the light of this legislation, that the two considerations might properly be separated. 

10. In practical terms it matters not a lot, given that it is incumbent upon the Judge considering the matter to determine the best interests of the children based on a proper comparison of the alternative proposals put forward by each of the parties. 

11. In this case there are at least three possibilities.  The first is that the mother move to Brisbane and that the father stay in Canberra and that the children go with their mother and therefore see their father on a limited basis.  The second is that the mother move to Brisbane with the children the father move to Brisbane and that the parties have an arrangement for the children there which may in part be dictated by: the geography of their parents' residences; the father's occupation; the mother's potential occupation; and the possibility or not that the mother's parents may move from Western Australia to Brisbane.  All of these things are factors in that second arrangement.  The third presumably would be that the mother not move to Brisbane, remains in Canberra and that the children spend time with their father, either as he would have it on an equal basis, or alternatively, on a progressively substantive basis.  

12. I have indicated that it is my view that the third of those possibilities is the one that most accords with the best interests of the children.  The factors that have influenced me in coming to that conclusion are these.  First, the strong opinion expressed by the family consultant that a move to Brisbane would be a very disruptive and emotionally difficult thing for the children to undertake. 

13. The second is that it is important for the children not to be separated from either parent at their particular ages for more than a few days.  That is a possible arrangement while both parents are living in Canberra and the father is able to maintain his employment in the Defence Force with the flexible conditions that I am satisfied on the evidence before me exist.  Cynical though I am about the fact that they do exist, I accept that is the evidence before me. 

14. The third matter that seems to me is important in the preference of this arrangement over the others is that the children would remain in an environment where they will continue to have the support that they need in other ways.  For a variety of reasons E has been attending professional support in Canberra and her move to Brisbane would necessarily involve her in obtaining new support, new professionals and that may or may not have an effect upon her.  It certainly would not ordinarily be preferred. 

15. Further, the mother has been receiving emotional and psychological support in Canberra from Dr C and it would mean that she would also have to seek alternative support.  In addition, although its significance is overall relatively small, the children will continue to have the benefit of having exposure to their paternal grandparents in Canberra and will not be precluded from having exposure to the maternal grandparents by living here. Obviously if the maternal grandparents move to Brisbane and the children remain in Canberra they will not see as much of them as they would if the children were living in Brisbane.  But ultimately that is not a relationship for these children, at this point, which is as important as the relationship between them and each of their parents. 

16. The primary disadvantage in the mother's remaining in Canberra, as outlined by the mother’s counsel at some length and with considerable force, passion and compassion, is that the mother's ability to envisage living in Canberra has to some extent been totally submerged in what she regards as the desperation she would feel if she were obliged to stay here.  She says, for example, in paragraph 59 of her affidavit:

    I feel trapped and isolated in Canberra and subject to [the father]'s whims about his future career. 

17. She goes on to that she feels that she is in limbo waiting for the day when the father is posted out of Canberra which would therefore be another change in her life and in the lives of the children. 

18. On the evidence before me, I do not accept and do not find that it is likely that the husband will be posted away from Canberra.  I accept that it is possible and, obviously if the Defence Force is to function, it cannot leave people indefinitely in one place to the detriment of the overall operation of the Defence Force.  Nevertheless, the evidence before me, at least, is firm in maintaining that he is going to be able to remain indefinitely in Canberra and “indefinitely” in that context is going to mean certainty for some years.  In that environment, in my opinion, the belief by the mother that she would be constantly in limbo is misplaced and misjudged.  I cannot in the long run disprove or want to disprove the fact that she may feel trapped and isolated in Canberra.  It is not objectively measurable, and if it were, in my opinion, the objective measure of her isolation would not bear proper consideration.  She has, at least in terms of her own material, indicated that she has managed in Canberra to obtain the support professionally and otherwise in ways which are at this stage untried in Brisbane.  I accept that she does not appear to have other friends in Canberra, but I also note the evidence the father gives, that the mother had previously been capable of making friends readily with his work companions and their spouses.  I do not put a lot of weight on that evidence, except to say that it seems to me the mother may in fact have contributed to her own isolation in Canberra because she did not want to be here. 

19. Ultimately it is not a question of whether or not she is happy or unhappy in Canberra.  It is not a question of her being able to say simply, "I am unhappy and therefore I must be allowed to move."  It is not a question of whether she is even isolated in Canberra.  That is a factor which may, and probably would, bear upon her ability properly to look after the children.  This is a matter which was raised properly by the mother’s counsel with the family consultant during the course of her cross-examination.  He asked her to consider the matters set out in the paragraphs of the mother's affidavit to which I have just referred and to give an opinion about whether this was likely to have an effect on the mother's ability properly to look after the children. 

20. The family consultant in answer to the question from me indicated that she did not feel she was qualified to give an answer to that question.  There is no professional evidence or indeed other evidence, apart from the mother's statements, about the fact that her unhappiness (if I were to accept that it would continue indefinitely) would necessarily impinge upon her ability to look after the children properly. 

21. It would not be my first choice to put any parent in a situation where he or she was unhappy or wished to be somewhere else.  Nevertheless, if I return to the analogy that the Chief Justice made in a non-judicial context previously, this is not a matter in which there is an obvious solution.  There are only less acceptable solutions or more acceptable solutions. 

conclusion – children’s matters

1. I believe in the circumstances of this matter that it is appropriate that the mother's desire to go to Brisbane should be sublimated to the interests of the children being able to have a more effective relationship with both of their parents (and for the other matters which I have outlined in more detail for my consideration of the factors relevant to the children's best interests under s.60CC).  This is not to suggest that I want to in any way diminish the concerns I feel for the mother's wellbeing.  It seems to me that she is by any measure an unhappy person, particularly in relation to a requirement she should stay in Canberra.  But, in my opinion, her happiness is not a determinative factor. 

2. Those are the reasons that it seems to me weigh in favour of an arrangement where the children stay in Canberra.  In summary, I am not satisfied with the support arrangements the mother has indicated she has in Brisbane would be effective.  She will have a change of housing whatever occurs and while she may have the job, I am not satisfied that similar arrangements would not be available to her in Canberra. 

1. I should add for completeness – and I do not want it to be thought I have overlooked the matter – that in the course of evidence both parties indicated they would change their current residences once the property matter has been completed.  That gives rise to a proper consideration of the fact that there will be some disruption to the children no matter whether they stay in Canberra or move to Brisbane.  However, the very strong evidence of the family consultant was that the move to Brisbane in itself because of its distance and the major nature of the break with supported mechanisms would be a much stronger factor than a move within Canberra itself.  I am not sure that I would necessarily have thought that myself, but that was the evidence before me and is substantially unchallenged. 

Property pool

1. I turn to the question of property.  In relation to property, the parties had, during the course of the lead-up to the conclusion of hearing and subsequently, worked to minimise or to reduce some of the elements of dispute between them.  By the time the matter had finished, (although it has to be conceded on the very last day of the finalisation of the matter), I was given a list of properties the parties said was in dispute between them and the elements which said required determination. 

2. In this regard, in the consideration of property matters I am obliged to take four distinct steps. The first is to identify the property of the parties and each of them for division. The second is to consider the contributions that each of them have made in accordance with s 79 of the Family Law Act. The third is to consider whether any adjustment might be made to the property based upon a consideration of the factors under s 75(2) of the Family Law Act.  Finally, I need to consider whether the orders in themselves would constitute a just and equitable distribution of the property between the parties. 

3. The single balance sheet, although produced in non-single form by the parties did in fact contain agreement about a number of matters.  The property at W in Queensland was valued at $675,000 for purposes of this hearing and is to be sold.  There was dispute about its value, but that dispute has been overtaken in the agreement that the property be sold.  The property at G in Queensland was agreed to be worth $325,000.  The property at H, Queensland was agreed to be worth $355,000.  The husband's shares were agreed to be – and I will not identify them specifically, although they are set out more particularly in the husband's single balance sheet - $53,565.  There was a motor vehicle which is agreed will become the wife's which is agreed to be worth $16,000 in the end. 

4. The liabilities that were agreed included the mortgage on the W property of $120,000, although that property appears to have some collateral security connection with the other two invested properties.  The mortgage on the G property was agreed at the sum of $255,067 and the mortgage on the H property at $325,543. 

5. The parties each has superannuation, the husband's through the MSBS and it has an agreed value at this point of $273,369, the wife through AMP with an agreed value at this time of $38,785. 

add-backs

1. The disputes between the parties, apart from the value of the former family home, appeared to be centred principally on the other amounts that should be added back into the pool in accordance with the principles enunciated in Chorn & Hopkins,[2] Townsend & Townsend[3] and other similar cases.  It is important for me to identify each of the proposed add-backs and to give my finding and determination in relation to them at this point. 

   [2] (2004) FLC 93-204

   [3] (1995) FLC 92-569

2. It was common ground, as has been set out in the orders previously referred to, that there had been access by the parties to a redraw facility for various purposes as outlined in those orders from time to time.  The sum agreed to have been withdrawn was – and I use the word "about" cautiously because there is in fact a disagreement about a minor amount about it – of about $48,000.  This was withdrawn for two purposes.  One was to provide for the wife's living expenses and for her accommodation, and the other was to enable her to pay her legal fees, which effectively released her file so that she could continue in the trial process. 

3. The amount that was applied by the wife from the $48,000 or $49,000 – it matters not much which in this context – towards living expenses, in my opinion, is properly to be considered in conformity with the principles in Chorn & Hopkins as being a sum which should not properly to be added back into the pool.  I say this conscious of the fact that during that period the husband was also having to accommodate himself and to raise his own living expenses.  It seems to me, logical or illogical though it may be, that the line of authority in this Court is fairly firmly now established on the basis that if joint property of the parties is used – and there is no dispute in this matter that it was so used – for living purposes of one of the parties, then it is a legitimate and reasonable application of such funds. 

4. I should say I suppose that, in my opinion, the principle associated with adding back amounts into a pool of property for the purposes of division is really to take account of the fact that the parties have engaged, either unilaterally or by consent or by order of this Court, in a premature or pre-emptive distribution of the property and that the logic associated with adding something back into the property pool, sometimes described as notional property pool, is on the basis that one of the parties has already in fact taken a distribution of the property.  However, this Court has recognised that there is a legitimate and reasonable basis upon which parties cannot simply freeze their lives as at the date of separation, but must go on living and that their reasonable living expenses should properly be allowed as representing an appropriate application of the joint facilities and resources of the parties. 

5. That, however, must be applied equitably and reasonably.  To the extent that the wife engaged in a pre-emptive distribution of property to pay her legal fees when the husband had to borrow money for his legal fees, the legal fees should be added back into the property pool.  Although I would perhaps disagree with the rationale for doing so, this is in conformity with a number of decisions of this Court that have distinguished the application of legal fees. 

6. Although there does not appear to be an agreement about precisely the amount that was involved in the legal fees, I am satisfied, having looked at the exhibits, that the appropriate amount, notwithstanding the wife's apparent concession, curiously against interest, of $23,400 is in fact $22,400 as the husband suggests, not the wife.  For that reason, and as a result of an examination of the records that became exhibits in the proceedings, that sum will be added back in.

7. The third matter in dispute was whether the husband’s deduction of $15,000 from this facility to repay what he said was a loan to his father should be regarded as the repayment of a loan by both of the parties or should be seen as some pre-emptive distribution by the father (although it was not put in these terms) this was presumably on the basis that he would give the money to his father who in due course would give it back to him.  In this regard, I adopt the submissions made to me by the husband’s counsel.  It is for me to determine on the evidence whether or not it was a gift or a loan.  In my opinion, on the evidence, based on the fact that I accept the husband's and his father's evidence about the matter in preference to that of the wife.  His evidence is on this matter – and I have looked at it again – somewhat vague.  I accept that it was a loan and I accept, further, that the repayment of the money, although it may well have been on the husband's part a pre-emptive move to secure it and prevent it from being brought into account, was in fact the repayment of a joint loan of the parties to his father.  Accordingly, that sum should not be added back into the pool and remains as the payment of a debt by the parties together. 

8. The matter that is raised by the husband in his single balance sheet that has caused more difficulty than anything else is a seemingly simple entry that says "net negative gearing expense paid by the husband $9,177".  It was actually quite difficult to work out how that came into existence to begin with.  I think I know the answer to how it came into existence, but I do not agree with the way in which it has been finally calculated.  Exhibit M2 was a list of expenses and income relating to each of the rental properties over the last two years.  This disclosed, in summary, that there had been a negative effect (if I can put it that way) to each of the properties of some $26,426 for the two years.  In other words, the outgoings exceeded the income.  However, at the same time, as appears in the mother's “single balance sheet” (so called), there were sums received by the husband by way of tax refunds which totalled $22,249 for the years ending 30 June 2006 and 30 June 2007. 

9. It appeared to be acknowledged, although it does not necessarily follow, that most, if not all, of the tax refunds were attributable to the tax deductions properly incurred in relation to the rental properties.  Hence, in my opinion, the appropriate adjustment to the pool of the parties should reflect, first, a joint debt of $26,426 representing the loss that the parties incurred over two years in relation to the properties and should also reflect appropriately the income that the parties have received, vicariously through the husband, of $22,249.  The combination of those sums does not produce the $9,177 the husband claims.

10. So far as I am able to determine, this appears to relate to the fact that he is suggesting that he has already spent a similar amount for the first half of this financial year.  However, the evidence before me would not allow me to make such a finding and in my opinion the appropriate step to take is that which I have outlined, namely to increase the liabilities of the parties by $26,426 and to effectively increase the pool of property insofar as the assets are concerned by $22,249 representing the tax refunds.  I say this conscious of the fact that the distinction was made, and properly so, during the course of submissions to me that in the ordinary course of events a refund that fell due after the parties separated would not otherwise be incorporated back into the pool.  It seems in this case to me that the special circumstances of the matter dictate the approach that I have suggested. 

11. Both parties identify as a further add-back or a potential add-back a sum of cash in the NAB account at the date of separation of $5,500.  I can find no record either in the evidence of the parties or in the exhibits or in the Form 13 financial statements of the parties that in fact corroborates that claim.  However, I accept that both parties agree that the amount exists and that it is in the husband's account.  No-one has addressed any submission to me about it and I propose to add it back in as it is appropriate that it should be added back in - if indeed it existed at the date of separation and indeed was available. 

12. However, in a slightly different category is the reference in the mother's single balance sheet of a sum of $2,524 asserted to have been cash withdrawn from the ING account on 28 November 2007.  I can find no evidence about that withdrawal in the material at all; not in the wife's affidavit, not in the husband's affidavit, not in any of the exhibits before me or anything else.  The material I have about the account unhelpfully falls off just at the relevant moment.  I am not prepared to make a finding that it should be an add-back for lack of evidence, to begin with, but also, because of the small size of the amount.

summary of property pool

1. Those then I think deal with all of the matters that were raised by the parties as requiring a determination by me.  They produce a net pool of property of the parties, apart from the superannuation, of $774,104, less the $26,426, which I think gives us a total pool of $747,678. 

2. The non-super pool in total was $1,424,565, to which should be added, as I suggested, the $22,400 in costs for the mother, $22,249 of tax refunds of the husband added back in and the $5,500 constituting the husband's bank account; a total then of $1,474,714, less liabilities of $700,610, which incorporates the amount of the losses in the property, leading to a figure of $774,105 [$774,104].  The total pool including the superannuation would therefore be $1,086,258. 

3. I have in conformity with the principles enunciated in Coghlan & Coghlan[4] separated the two pools of property at this point and it is logical and it should be so if for no other reason that each of the parties has sought orders that separately deal with the two pools of property.  The husband, somewhat anomalously in the context, seeks that the wife receive 15 per cent of his superannuation as a splittable payment.  The wife seeks that she receive 10 per cent.  The explanation for this apparently reversed order of batting is that the wife seeks a higher proportion of the property pool and presumably seeks, therefore, that there should be some overall adjustment on the superannuation pool in justice and equity as a consequence.  However, for reasons that I will now articulate I do not believe either of those approaches is exactly right. 

   [4] (2005) FLC 93-220

contributions

1. The contributions made by the parties fall into three categories.  The first is the contributions made initially by each of them; second, the contributions made during the course of the time they were together.  This depends a little on what date I choose as being the date on which the parties began their cohabitation.  And finally, the contributions made by each of them following separation, including in the case of each of them, though principally in the case of the mother, her continuing contributions as homemaker, and particularly as parent since separation. 

2. The contributions at the time the parties came together would include in the case of superannuation the potential for different results, depending upon the day on which the parties or the time at which the parties were thought to have come together.  I was presented with exhibit F3, the valuations of Mr R for 31 October 1998, which is one possible date, at some $38,171 with a valuation for 31 December 1999, which was close to another of the dates selected in the sum of $67,630 and the present valuation of $273,369.06, which is the figure that we have been using. 

3. The husband's evidence, (and the wife's evidence) about when they first began their relationship is perhaps typical of most relationships in that there was no blinding dawn light, but rather a long period of pre-dawn dimness before the full daylight emerged.  They were together in the same house for a time, but they were in separate bedrooms for some of the time and they were in the same bedroom for some of the time.  They were physically separated from each other for some of the time because the husband had been posted away.

4. It is probably impossible to determine with any measure of accuracy in such circumstances precisely when the relationship began.  Hence, making some finding about it would be highly artificial.  There is no doubt that the parties began some sort of relationship at the earliest of the dates that I have referred to.  It is equally the case that certainly by the time they were married they were living together.  This was much later, and indeed it is common ground that they were living together during 1999 at the very least.  It does not matter a lot.  In my opinion, the determination about the effect of contributions is not a precise art involving the insertion of a particular figure.  Even though on occasions the mother’s counsel has given me calculations which have set out the increased value of money over a certain period, it seems to me that this fails in many cases to take account of the fact that the proportion of contribution at the time to other values at that time may well be different. 

5. Pierce & Pierce[5] sets out what the Family Court has said in the past about assets acquired some time ago.  This has been adhered to substantially, that it is not that contributions initially made become in some way dissipated over a period.  They must be considered in the context of the whole relationship and must be considered, moreover, by reference to the way in which they were applied.  In this case there is no doubt that the superannuation – which we will identify that separately for a moment – of the husband is something that has continued unabated during the whole of the relationship.  Whether it was worth a smaller amount at the start or the larger amount towards the end of 1999 probably does not matter a lot.  But the figures – and I did do them – suggest that there was something in the order of a third available at that point.  I do not believe, nor does the Court endorse, a West & Green[6] approach to whether or not the proportion from one time to another should be applied in some formulaic way.  It suffices to say that a substantial part of the superannuation existed before the relationship and this is reflected in the orders each of the parties seek that the husband should receive a substantially larger part of the superannuation than otherwise. 

   [5] (1999) FLC 92-844

   [6] (1993) FLC 92-395

6. In addition, he brought into the marriage or into the relationship, whenever it began, some money and also some shares.  It would depend entirely upon when that was as to what they were and they have constituted part of the wealth of the parties over the period that they have been together.  The amounts are in dispute when I look at what the wife says in her affidavit in paragraph 101 and what the husband says in his affidavit.  Equally, the wife brought into the relationship a car, agreed now to be worth $16,000.  From the husband's argument, it was subject to a loan, from the wife's it was not.  They are contributions to the wellbeing of the parties which have subsisted throughout the marriage and which constitute a basis upon which they built their fortune. 

7. During the course of their relationship, however, the husband also contributed some $40,000 from his personal injuries claim which constituted a contribution from outside the marriage.  The wife claims – and it is not substantially refuted at all – in paragraph 115 of her affidavit that she was given a gift or she and

   
   

   the husband were given a gift of $5,000 from her parents.  The husband not quite had two bob each way in the course of his material, but argued that the contribution from his father constituted a contribution on his part.  I have already determined in the course of my earlier consideration of this matter that the $15,000 constituted a loan.  And while that may have been beneficial to the parties, in my opinion, it is properly regarded as a loan and now properly regarded also as having been repaid.

8. Those then it seems to me are the factors relating to the initial contributions or extraneous contributions during the marriage.  During the time the parties were together the husband clearly earned more than the wife.  So far as financial contributions are concerned, his contributions exceed hers.  So far as the same period is concerned, there can be no doubt – and indeed the husband’s counsel properly conceded this – that the wife's contribution as homemaker and parent exceeded the husband's.  Even though I have read carefully what each of the parents suggest that he or she did, there is no doubt, in any event, that, at least so far as his last posting is concerned, the husband was away for a period when E was very young and there is no doubt the mother's role during that period must be regarded as having been a much higher contribution than otherwise.  Even during the time that he was present there is no doubt in my mind that the mother has been a greater contributor as homemaker and parent than was the father. 

1. Since separation the mother's principal contributions have remained as the homemaker and parent and in one of the anomalies of the Family Law Act it is a continuing contribution and one which must continue to have an effect into the future. Equally, it might be said that the father has made contributions to the family financially by supporting indirectly the mother through his share of the redraw facility that has been used for living expenses in combination with the father's own living expenses. Equally, as I am obliged to take into account under s 79, the father has been paying child support and has been paying it in a sum that varies a bit, depending upon which piece of the evidence you read, but which is certainly no less than $111 a week, could be $288 a week, which is what the mother said it was, or could be $325 a week, which is what the father said it was in his Form 13. Undoubtedly it will be a factor I am to take into account under s 75(2), probably a higher figure for the future, notwithstanding the changes in legislation, because of the fact that almost inevitably the tax deductions the husband has been getting from the investment properties will dissipate.

2. Combining all of those factors, it seems to me that there is an imbalance of contributions in favour of the husband and it seems to me that the order of contribution should be found to be in the ratio of 55 per cent to the husband and 45 per cent to the wife.  This is not a scientific or mathematical calculation, but rather my assessment of the weighted effect of the contributions to which I have just referred.  

section 75(2) factors

1. The factors under s 75(2) I regard as being relevant are as follows. First, there is on the part of each of the parties, although I am satisfied more on the part of the wife than the husband, some issues about health. That will not be a large factor in the overall equation, but it is certainly a factor which may bear upon the mother's ability to earn income. But in that context it inflates the effect of her capacity to earn, which is obviously less than that of the father. However, there is no doubt she has a capacity to earn, even if she chooses not to exercise it. The mother’s counsel urged on me that there was some common law presumption, if I can put it that way, that until a child turned five a mother was presumed to be incapable of earning income. I do not accept that, more particularly in this matter because the mother herself put evidence before the Court that she both was capable of earning an income and intended to earn income if she moved to Brisbane in the near future.

2. The child support question, in my opinion, is present but not significant.  I am not suggesting that the sums that the husband is paying are not significant or that what he pays in the future will not be significant, but it does seem to me that it would be probably appropriate in terms of the income that the amount he pays would be of that order.  Indeed I get the strong impression from him that he would want to do what is best for his children in any event and would not begrudge the payment of the amount that he should properly pay.  Indeed his behaviour in the past in querying the Child Support Agency about what he should be paying is reflective of that attitude. 

3. The two other factors that I do believe, however, are significant is (1) that it is probable that for some years at least and in accordance with the orders that I am making as suggested by the Independent Children's Lawyer and to some extent endorsed, except as to order 8, by the family consultant, the mother will continue to have the principal role in the care of the children.  That is a factor I cannot reasonably disregard.  (2) the Act permits, and I think it is appropriate in this situation for me to do this, to take into account the fact that the husband on any equation will have a much more substantial access to superannuation in the future than will the wife. 

4. On the basis of the split that he suggests, as opposed to that suggested by the wife, his superannuation will in its present form significantly exceed that of the mother's and will continue to do so, one would think, into the future as the disparity between their incomes continues to assert itself. 

5. That means, in my opinion, there should be an adjustment in favour of the wife by reason of these factors which I believe it is appropriately set at 10 per cent or a differential of 20 per cent, which means that she should receive 55 per cent of the non-superannuation property and the husband 45 per cent.  There would be adjustments in each case to those for the amounts that I have indicated should be add-backs.  In the mother's case that would represent a figure of $425,757, minus some $38,400, which would mean a payment out to her of $387,357 if the property sells for the figures that were indicated.  The orders I make are based on percentages, not on precise figures.  I mention the figures only to indicate comparative figures and to enable me to make an appropriate determination as to the justice and equity of the orders I propose to make. 

just and equitable

1. The net effect will be that the wife would get of the non-superannuation property the figure I have suggested above, together with 15 per cent of the husband's superannuation property by way of a splitting order, which amounts to some $41,005.  She would receive her own superannuation, which is valued by agreement at $38,785.  That would mean that of the total property pool, including the superannuation, she would receive or have received, taking account of the matters to be added back, some $505,547 or what amounts to about 46.5 per cent of the total of the property of the parties.  It seems to me in an evaluation of the property division that I have proposed that this is a fair representation of both the contributions and the other factors affecting the parties and reflects that the fact that the superannuation, while a valuable and substantial part of the process, has been separately considered, separately dealt with, both at the request of the parties and by prescription of this Court in Coghlan & Coghlan.

spousal maintenance

1. That leaves the final matter for determination, the question of the mother's application for spousal support.  In my opinion, that application should be dismissed.  The application depends upon a number of factors.  The first is the need of a party for support.  The second is the ability of the other party properly to provide that support.  The evidence supporting the claim for spousal maintenance has been a little thin on the ground.  The relevant provision of the Family Law Act is s 72, which provides:

   A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having care and control of the child of the marriage who has not attained the age of 18 years,

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2). 

2. The mother’s counsel kindly reminded me that in determining spousal maintenance, the Court is prevented from taking into account any income-tested pension, allowance or benefit to which the party who is making under this consideration is entitled.  In this matter the mother receives at present Centrelink benefits, according to her own evidence, of $530.90 per fortnight and parenting payments and family tax benefits of $233 per fortnight.  I assume in the context that those are income-tested benefits, but I have no evidence that tell me whether they are or whether they are not.  The mother has, nevertheless, notwithstanding her care and control of the children, some capacity for work on her own admission in her own evidence before this Court in relation to her proposals for living in Brisbane.  The extent of that capacity, the amount she might receive from it, her likely living expenses, her likely inability, if that is the word, adequately to maintain herself are not factors which have been put before me either in summary or indeed in primary evidence.

3. Even if all of those factors had been properly established, I am not satisfied on the evidence before me either that it has been reasonably demonstrated, in the words of the Act, if, and only if, the other party – in this case the husband – is able to meet any payment that might be necessary.  It is not simply the case that the need must be established, but the ability of the party who is sought to be required to pay must also be determined.  In such circumstances, in my opinion, the application for spousal maintenance fails. 

SUPPLEMENTARY REASONS (DELIVERED 6 DECEMBER 2007)

1. Briefly, I indicated at the beginning of these proceedings this morning that I would amplify to some extent the reasons I made yesterday in relation to one of the orders before the Court about the children. 

2. I have made it clear that in real terms I accepted the submissions and the minutes of orders as submitted by the Independent Children's Lawyer.  I commented in the course of the reasons I gave yesterday that, broadly speaking, the first seven of those orders had been accepted as being appropriate by the family consultant.  This was in the context of the very clear and firm evidence from the family consultant about the times that each of the children should spend away from either parent, and in particular, the youngest of the children, L, should spend away from her mother. 

3. Order 8 in the draft orders that I circulated yesterday is in essence the adoption by the Independent Children's Lawyer of a more truncated framework or time frame as suggested by the father rather than as suggested by the family consultant.  The family consultant, to my recollection, did not substantially disagree with the proposition, but it was not her recommendation.  In my view, given the time frames involved in this matter, the fact that we are in effect talking about something which is two and a half years ago, it is reasonable in my view to take a reasonably optimistic view about the way in which the process between the parties will develop.

4. Accordingly, in that context on the recommendation of the Independent Children's Lawyer, adopting the proposal of one of the parties and not substantially dissented from by the family consultant, it appears to me that it is appropriate to make order 8. 

5. Dealing then with the question of furniture, again by way of supplementary reasons, this is a situation, in so far as the furniture is concerned, where there was no agreement between the parties, nor any evidence led, nor any valuation provided about the value of the furniture.  I am unable in the context to decide what furniture is with which party.  I am unable to discern from the evidence in front of me (because there is none) whether there is a difference in the value between the furniture in the hands of one party rather than the other.  There is some evidence that there is a preponderance of furniture with one party rather than the other.  There is no evidence that there should be any amount or any agreement about any financial adjustment between the parties. 

6. That would ordinarily leave me with three possible orders.  The first would be that I simply order that all of the furniture and personal effects of the parties be sold and the proceeds be divided in proportion of the orders that I have made generally.  I would regard that as being both perverse and unpleasant and unreasonable.  Second is that I would order that the furniture be valued by some independent person and some financial adjustment made.  Given the dispute is about valuation in this matter, we would probably spend the next year in agreeing or not agreeing about who was to do the valuation.  In the effect of it I do not regard that as appropriate at the end of the proceedings. 

7. The third thing I could do is simply indicate that as no evidence was put before me I make no order. My obligation under s 79 is to make an order about the division of the property of the parties. It does not mean I have to make an order about all of the property of the parties, particularly when they do not put before me the information that is necessary for me to make that order.

8. The fourth choice I might have by way of order is to follow what is described commonly as the pick-a-pile method.  The party who has the predominant volume of assets would make a list, or both parties would make a list.  There would be an exchange of the information and then a composite list or true list compiled by the person who has the predominant quantity of the furniture.  The other party gets to make a choice of which list he or she will have.  That involves nothing other than individual and personal squabbles which would probably occupy a good part of Christmas I guess.

9. My temptation, I have to say, is to follow the third course, which is to make no order because the parties have not put any evidence before me.  However, I will entertain during this day but no later any agreement between the parties as to any other matters that are in the list. 

I certify that the preceding One hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate

Date:  1 August 2008