Handley & Tranter

[2007] FamCA 344

FAMILY COURT OF AUSTRALIA

HANDLEY & TRANTER [2007] FamCA 344

FAMILY LAW -  CHILDREN - Parenting proceedings – Parents’ inability to communicate – Personality issues – Rebuttal of presumption of equal shared parental responsibility – Sole parental responsibility to mother on certain issues

FAMILY LAW - PROPERTY – Split of husband’s superannuation to satisfy wife’s entitlement 

Family Law Act 1975 (Cth)

Q & Q [1999] FamCA 1314
Norbis (1986) 161 CLR 513
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FAFC 157
ASIC v Rich (2005) FSWCA 152
Noetel and Quealey (2005) FLC 93-230
Blair & Blair [2007] FamCA 253
Jann v Yann (1976) FLC 90-027
Foster v Foster (1977) FLC 90-281
H v H-K (1990) 13 Fam LR 786
Padgen v Padgen (1991) FLC 92-231
Forck v Thomas (1993) 16 Fam LR 516
C v B, [Full Court], unreported delivered 15 April 1997
F v B [2000] FamCA 676
M & M [2001] FamCA 1688
M v G [2003] FamCA796
H v H (2003) FMCA Fam 41
M & M [2005] FamCA 207
Ferraro and Ferraro (1992) 16 Fam LR 1
Coghlan and Coghlan (2005) FLC 93-220
Lenehan (1987) FLC 91-814
Bonnici (1992) FLC 92-272
McMahon (1995) FLC 92-606
Pierce (1999) FLC 92-844
Money (1994) FLC 92-485
Bremner (1995) FLC 92-560
Way (1996) FLC 92-702
C & L [2006] FamCA 1366
Burgess v King (2005) 34 Fam LR 528

Bilous v Mudaliar & Anor (2006) 35 Fam LR 55

APPLICANT: Mr Handley

RESPONDENT: Ms Tranter

FILE NUMBER: BRF 1989 of 2005

DATE DELIVERED: 24 April 2007

PLACE DELIVERED: Sydney Registry

JUDGMENT OF: Moore J

HEARING DATE: 26, 27, 28 & 29 March 2007

REPRESENTATION

THE APPLICANT FATHER: Appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Wiltshire

SOLICITOR FOR THE RESPONDENT: Frank Carroll

COUNSEL FOR THE

INDEPENDENT CHILD’S LAWYER:

Mr George

SOLICITOR FOR THE

INDEPENDENT CHILD’S LAWYER:

Legal Aid Queensland

Orders

Parenting orders

1.The child, a daughter, born in September 2001 is to live with her mother.

2.In making decisions about major long term issues, as defined in paragraphs (a), (b) and (c) of s 4 of the Family Law Act 1975, the mother is to have sole parental responsibility and is to advise the father as soon as practicable of any decisions of that nature taken by her.

3.The father is to spend time with the child and communicate with her as follows:

A. during school terms as scheduled according to the calendar of the school the child attends:

(a)if the father resides more than 20 minutes travel by car from the school the child attends

(i)each alternate weekend from 3pm Friday until 8.30am on the following Monday (or Tuesday if Monday is a public holiday or pupil free day);

(b)if the father resides not more than 20 minutes travel by car from the school the child attends

(i)each alternate weekend from 3pm on Friday until 8.30am on the following Tuesday

B. during school holidays as scheduled according to the calendar of the school the child attends:

(c)one half of all school holiday periods at the end of terms 1, 2, 3 and 4, to be the first half in odd numbered years and the second half in even numbered years.

(d)for the purposes of (c) hereof -

(i)school holiday periods are deemed to commence on the day immediately following the day on which the school term concludes [“commencement day”] and conclude on the day immediately preceding the first day of the new school term [“concluding day”];

(ii)changeover time is to be at 12 noon on the day mid way during the holiday period [“middle day”];

(iii)if the child is with her father for the first half of holiday period then he is to collect her from outside the mother’s residence at 9am on the commencement day the mother is to collect her at 12 noon from outside the father’s residence on the concluding day;

(iv)if the child is with her father for the second half of holiday periods then he is to collect her from outside the mother’s residence at 12 noon on the middle day and the mother is to collect her from outside the father’s residence at 5pm on the concluding day;

(v)The school term arrangements set out in order 3 (a) and (b) hereof are to resume on the first weekend after resumption of the school term if the child has spent the first half of the school holiday period with her father and on the second weekend after resumption of the school term if the child has spend the second half of the school holiday period with her father. 

C. special occasion arrangements

(e)notwithstanding any other arrangement under these orders and in addition to those arrangements if applicable, the child is to spend Fathers’ Day weekend with her father and Mothers’ Day weekend with her mother, with the times and travel responsibility to accord with that of school term weekends. 

(f)       During the Christmas school holiday periods:

(i)in odd numbered years the mother is to collect the child from outside the father’s residence at 2pm on Christmas Day and return the child to outside the father’s residence at 6pm on Boxing Day; and

(ii)in even numbered years the father is to collect the child from outside the mother’s residence at 2pm on Christmas Day and return the child to outside the mother’s residence at 6pm on Boxing Day.

D. communication by telephone

(g)the father is at liberty to telephone the child two evenings per week during school terms and when the child is with her mother during school holidays between 6pm and 6.15 pm provided those calls are for not more than 15 minutes duration each;

(h)if the child is not in her father’s care on her birthday or the father’s birthday then in addition to any other provision in these orders the father may telephone the child at 6pm on those occasions in addition to the time provided in (g);

(i)if the child is not in her mother’s care on her birthday or the mother’s birthday then in addition to any other provision in these orders the mother may telephone the child at 6pm on those occasions;

(j)when the child is in her father’s care during school holidays, the mother is at liberty to telephone the child on two evenings per week between 6pm and 6.15pm provided the calls are for not more than 15 minutes duration each;

(k)Each parent is to encourage and facilitate the child to telephone the other parent at any time the child requests. 

4.The child is to be known as and enrolled and registered with all authorities with the surname of “[the husband] [that is, her name is to be […] 

5.Each parent is to keep the other informed in writing of their current residential address and landline telephone numbers and notify the other of any change within 7 days of any change;

6.If either parent intends being absent with the child from their usual residence for more than two consecutive nights that parent is to give the other prior notice of that intention in writing and at the same time provide the other parent with a written itinerary of the arrangements including the address and telephone number where the child will be staying. 

7.The father is at liberty to obtain from the school the child attends all reports, newsletters and information related to the child’s attendance and progress at school, such as is available to parents of students in the normal course, and the father is at liberty to attend all school functions, sports days, parent/teacher interviews or other events conducted by the school according to invitations extended by the school to parents in the normal course. 

8.(a)      The mother is to notify the father within 14 days of the date of these orders of the name, address and telephone number of the child’s treating general medical practitioner and each parent is to ensure, if reasonably practicable, the child attends that general medical practitioner if medical attention is required. 

(b)      If either parent, by reason of emergency or impracticability, has the child consult another medical practitioner that parent is to inform the other in writing of the name, address and telephone number of that medical practitioner and the nature of the treatment sought. 

(c)      Each parent is at liberty to obtain from any medical practitioner treating the child information relevant to the child’s treatment, diagnosis and prognosis. 

9.Unless otherwise agreed between them in writing, the father is restrained from residing within the same neighbourhood or within 5 kilometres of the home in which the mother and the child are living from time to time and the mother is restrained from taking up residence within that field of the father’s residence. 

10.      The appointment of the independent child lawyer is discharged.

Property orders

11.The husband is to pay to the wife the sum of $83,200 on or before one (1) month from the date of these orders;

12.Contemporaneously with the payment of the sum referred to in order 11 hereof, the wife is to sign all documents and do all things necessary to transfer to the husband all her right title and interest in the property registered in their joint names and situated at M in the State of Queensland. 

13.If the sum referred to in order 11 hereof is not paid within the time stipulated or such further time as agreed, the M home is to be forthwith offered for sale by a method and at a price agreed and if not agreed then by public auction without undue delay at a reserve price to be set by the auctioneer and the proceed of sale are to be disbursed so as -

(i)to pay all costs related to the sale and commissions on sale;

(ii)to discharge the mortgage secured over the property;

(ii)to pay the balance remaining as to 50% to the wife and as to 50% to the husband and from the husband’s share he pay to the wife the sum of $14,445. 

14.Liberty is given to apply for machinery orders with respect to the sale of the M home. 

15.Whenever a splittable payment is payable in respect of the superannuation interest of the husband in the S Superannuation Fund:

(i)The wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $25,173 at the operative time being four business days after the date of service of these orders upon the trustee of the S Superannuation Fund;

(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

16.Order 15 binds the trustee or trustees from time to time of the S Superannuation Fund.

17.A sealed copy of these orders is to be served by the wife upon the trustee of the S Superannuation Fund as soon as practicable. 

18.Subject to the provisions of these orders, each party is entitled to retain absolutely all property of whatsoever nature and kind presently owned by and in the possession of that party. 

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRF1989 of 2005

MR HANDLEY

Applicant

And

MS TRANTER

Respondent

REASONS FOR JUDGMENT

[To assist editing to provide anonymity for publication, the parties’ names will not be used in the body of these Reasons.  They will be referred to by initials, by reference to their status as parents or, despite their divorce, as ‘husband’ and ‘wife’, as may be convenient]

Proceedings

1. The Court is asked to make parenting orders related to the future arrangements for the parties’ 5 ½ year old daughter and settlement of their property. 

2. Broadly speaking, the parenting proceedings call for decisions about the extent to which parental responsibility is to be shared between them, the time their daughter will spend with each, and a raft of other issues related to her care and upbringing.  As for the property proceedings, their major asset is an encumbered home at M but they also have personalty and superannuation entitlements.  The dispute is not so much about what they own and what it is worth but the proportions in which it should be distributed and whether the husband’s superannuation should be split to satisfy part of the wife’s entitlement. 

3. The parties began living together in October 1999, they married in June 2000 and their daughter was born in September 2001.  Throughout the marriage at various times they undertook counselling as a couple and individually, giving some indication of the unhappy state of the relationship from early on.  There was a brief separation in August 2002 and a longer separation from December 2002 to August 2003 when they both remained living in the family home, though separately, but their final separation occurred in July 2004.  The wife left the home around that time, taking the child with her, and she went to live with her parents at T where she continues to live.  The husband has remained living in the family home at M.  Their present residences are 60 kilometres apart and, depending on traffic, the travelling time is around 45 minutes or may be an hour.  They were divorced in July 2006. 

Evidence

1. The husband filed a very lengthy affidavit in which he gave a level of detail rarely seen in proceedings and the wife’s affidavit, despite being rather repetitious, omitted matters related to the property proceedings and that required supplementary evidence from her at the hearing.  Their affidavits are not confined to giving an account of relevant historical facts and outlining their current circumstances and future proposals; they contains commentary that amounts to advocacy to advance their case and promote the outcome for which each contends, with the result that core issues tend to be overshadowed by a wilderness of detail and argument. 

2. The husband also called evidence from his mother and his sister.  His mother was not required for cross-examination and her evidence can be accepted.  His sister’s cross-examination was relatively brief and mention will be made of that in due course. 

3. The wife called evidence from her parents and from several friends, but only her mother was required for some brief cross-examination.  No inroads were made into what she had said in her affidavit though she readily made concessions when some matters were put to her.  Her evidence can be accepted. 

4. The wife’s solicitor filed evidence of the value of their superannuation entitlements and there was an affidavit from Mr W who valued their motor vehicles.  In both instances, there was no contest and those figures are accepted. 

5. Related to the parenting proceedings, there is also evidence from two experts.  Ms J, social worker, prepared three Family Reports over time - the first in June 2005, the second in August 2006 and the most recent in March 2007.  She gave additional evidence at the hearing and offered recommendations at that point which differed from the recommendations made in her final report.  Spanning a considerable period of time, the reporter’s involvement gave her the opportunity, not available to the court from the trial process of itself, to observe situations and dynamics between the parents and to see the child and observe her in the care and company of her parents.  Her assessments, therefore, constitute important evidence.  That will be discussed in due course and it will be necessary also to consider the basis for her ultimate opinion, reflected in her final recommendation, and the weight to be given to it. 

6. Dr V, psychiatrist, prepared two reports - the first in November 2005 and the second in January 2007 – and he elaborated in further evidence at the hearing.  For now it can be said that Dr V is an experienced professional who has apparently approached his task in a thorough and even handed fashion, there is nothing arising from his approach, method or the content of his evidence to call into question the validity of the opinions he advanced.  I am satisfied his opinions can be relied upon and anything said hereafter proceeds from that footing. 

Background

1. The background record will not replicate the level of detail to be found in the evidence but will canvas the more central features of both the parenting and property proceedings.  That will be followed by discussion of the factors relevant to assessment of best interests and the property proceedings will be addressed thereafter in light of the parenting decision.  Contrary to assumptions that seem to underlie some of the evidence and submissions, property settlement does not involve the taking of accounts between parties in a mathematical exercise, as was made clear from authority such as Q & Q [1999] FamCA 1314 [per Finn, Kay and Burr JJ], where reference was made to the observations of Mason and Deane JJ in Norbis (1986) 161 CLR 513 at 524 in this passage:

   ‘37.     The s 79 exercise is not a pure accounting exercise.  It is an exercise in identifying the various matters to be considered under s 79 and weighing them up one against the other before reaching what is an appropriate order to be made, which order may not be made unless it is just and equitable.  …

   40.      The task of weighing up these competing contributions is one of the essential tasks that a trial Judge exercising s 79 jurisdiction must carry out.  However, that task is subject to the caveat expressed by Mason and Deane JJ in Norbis (1986) 161 CLR 513 where their Honours indicated that issues of establishing contribution are often barren issues because other factors become more significant.  Their Honours observed at 524:

   ‘The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism...’

2. The parties initially established their household in rented premises.  The husband had just emerged from many years as a priest and was looking for work.  The wife was working full time as a catering manager at a hospital. 

3. At the outset of the relationship the husband had cash and investments which he estimates to be worth $99,000, not the subject of challenge, and he also had some chattels and a motor vehicle.  He had a loan apparently related to the purchase of the vehicle.  He had no superannuation.  The wife had some chattels including a motor vehicle, but no assets of any significance.  She had a loan related to the purchase of her vehicle.  She had a superannuation entitlement which the husband estimates to have been worth $10,000.  While no basis was given for his estimate, no issue was taken with it and therefore it can be accepted. 

4. Some months later, the husband transferred shares he held to the wife’s name and in November 1999 he bought from his savings an equal number of Bank shares for each of them, though he later transferred his shares into her name.  Around that time he also bought an equal number of U shares for each of them by using his savings. 

5. Their employment history over time has taken different paths.  The husband was initially unemployed for a number of months until late March 2000.  During that time the wages income they had was from the wife’s work.  The nature of his work changed over the years but he has remained in full time employment to this day.  He presently works with the Queensland Government.  He has contributed to superannuation since he began employment in 2000. 

6. The wife continued to work until prior to the birth of their daughter in September 2001.  After the birth, there were differences about finances and she took up work in the hospitality industry for a number of hours on Sundays.  She later resigned from her position when the time available in the hospitality industry increased to 20 hours per week.  Over time she undertook other income earning activities such as home selling through direct selling companies.  She also did courses, such as a TAFE course in interior design in 2000, though she did not complete it, and other courses such as cake icing were not directed to income earning.  When she was in work, contributions were made to her superannuation fund. 

1. When their relationship broke down in 2002 the husband made the decision to separate their finances.  As he explained it, thereafter he paid the wife a weekly allowance, from the allowance he deducted her share of mutual expenses including a contribution to the mortgage instalments, and he covered his share of costs for groceries.  He maintained an excel spreadsheet tracking weekly incomings and outgoings. 

2. Indeed, the subject of money and their different attitudes about it were an issue, at least so far as the wife is concerned.  As an example of the problem, she relates having spent $2 on a toy for the child which made the husband furious.  However, for him the issue was not that she spent the money but that she had acted contrary to the advice they had been given in counselling to concentrate on doing ‘we’ things and the purchase of the toy was something they might have gone out and bought together.  From his point of view it is an example of her ‘inability to share their child’.  He disputes being ‘furious’ and says they were both angry.  Nonetheless, the wife maintains he was controlling about money, reflected in his insistence that she account to him for everything put on the credit card used to purchase food and pay for household expenditure.  Yet the husband denies it.  He says he maintained the finances, it was good practice to cross off the credit card item with dockets for purchases, and if dockets were unavailable then it was only reasonable any expenditure be verified with her. 

3. Quite early in the relationship they made the decision to purchase a home and the husband sold some of his investments to pay the deposit which, as best both recall, was 20% of the purchase price.  For all the mass of detail in the accounts given of their relationship, there is no evidence of what they paid for their first home at A [the wife thinks it was $163,000], nor of the next property, and nor for the home at M they now own [she thinks it was $273,000].  Whatever the case, it seems to be accepted they made a profit on each transaction and, it may be inferred, the agreed current value of the M home is greater than the purchase price. 

4. Around the time of the purchase of the first home, the husband paid out both car loans from his capital: over $11,000 for her loan and $10,000 for his. 

5. It is accepted that some work was undertaken on the first home they bought, though from the description given it was not extensive, and there was some planting in the garden.  There was also work undertaken on the second home including renovation of the bathroom, painting and again improvement was made to the garden.  The M home was quite large with four bedrooms and work was done to improve it in a number of ways.  Without being exhaustive, this included replacement of windows more in keeping with the style of the home and second hand windows were bought and restored for that purpose; a door was put in a wall and the work made good after installation by finishing and painting; carpet was removed; door handles replaced; some painting was done; and efforts were made to fix a water problem, apparently unsuccessfully, as well as work undertaken in the garden to improve the general setting of the home. 

6. Some assistance was given with the work of one kind or another by the wife’s parents, who had moved from Y to T around June 2003.  It is accepted that the wife did some of the work herself and it is also accepted that the husband assisted to the extent he was able.  On his own evidence, he helped with the preparation of the foundation for paving, he removed carpet, he did some minor building work, he replaced locks, and he assisted with some of the heavier gardening.  That said, the evidence overall left the impression that the greater force behind the refurbishments came more from the wife with assistance from her family. 

7. As for other chores, the husband says and it is accepted, he did basic repair jobs around the house, he mowed the lawn, and he did some of the washing, cooking and cleaning as well as the basic maintenance for their cars.  He managed their joint finances and he did the wife’s tax returns.  The wife, it is accepted, also undertook domestic chores associated with the running of the household and she attended to the garden. 

8. There is dispute about the sharing of responsibilities for their daughter’s care after her birth in September 2001 and plainly differences in approach to parenting emerged quite early in the piece.  There was an incident during their brief separation in mid-2002 when the child was still an infant which unfortunately was an indicator of things still to come.  Put briefly, the decision to separate having been made, they arranged to change over the child’s care at the residence of friends, Mr and Mrs D.  But on the first occasion this was to occur the husband arrived to take the child with the intention of going to his mother’s place, the wife gave no indication she would relinquish the child to him, so he took the child from her.  They disagree about the force he used to achieve this; suffice to say he maintains he did so ‘gently’ and was ‘incredibly sensitive’ to the situation.  Asked about the incident in cross-examination, he repeated the explanation given in his affidavit, adding there was no easy way of dealing with the situation.  It seems not to have occurred to him that the solution might have been to walk away and not subject the child to a tug of war, gentle or otherwise, and of course the same could be said of the wife maintaining her resistance.  Before the evening’s events came to an end the wife told him she had called the police, though it seems an arrangement was ultimately agreed without actual police intervention. 

9. The husband is demonstrably concerned to establish the nature of his close involvement with the child’s care from the outset.  He emphasises his sole responsibility for her at weekends and public holidays when the wife was at work during the day and at night when she was attending courses or at meetings and the like.  He also emphasises the extent of his involvement during the long separation in 2003 which he insists was a shared care arrangement.  A fragment of his evidence about the period before their separation reflects something of his point of view:

   ‘…(before the final separation he was) away from the house and from [the child] for no more than 100 hours (including travelling time) – therefore, in a fortnight, [the child]…was with me for 70 % of each fortnight.  Similarly, [the wife] was away from the house and hence [the child].. for around 56 hours – therefore, in a fortnight, [the child]…was with her for 84 % of each fortnight.’

10. Such precision about the division of labour and attention given to their daughter as a baby and infant before they separated is unnecessary.  Reviewed overall, the evidence suggests, and I find, both parents were keen to be involved with their daughter, they were involved to the extent their other commitments permitted, they both took a share of responsibility for her care in the many ways necessary when they were available to do so, and certainly neither falls into the category of absent or disinterested parent by any means.  For a young child of the daughter’s age the pre-separation arrangements are important, but they are less significant than the more recent history of her parental care because that has more implications for identification of the nature and quality of her current relationships and attachments.  It should also be noted that the child’s paternal grandmother was involved in her care regularly when both parents were working, though that ceased on separation. 

11. Since separation there have been various developments relevant to both property and parenting.  Those relevant to property can be recorded fairly briefly:

    a)While the husband has occupied the M home he has paid the mortgage instalments and rates, he has maintained the house, and he has paid all the other expenses related to his occupation. 

    b)He had two superannuation funds, both established during the relationship, and he rolled one into the other.  He has obviously continued to contribute in the intervening period.  Just before their final separation he contributed $1,000 to the wife’s superannuation fund. 

    c)They have a life policy covering the lives of each and their daughter is the beneficiary under the policy.  The husband has continued to pay the premiums and wishes to maintain the policy but the wife wants it cancelled.  As she sees it, she will take out insurance on her own life for her daughter’s benefit if she sees fit. 

    d)According to his financial statement, which is unchallenged, the husband earns around $63,300 per annum gross.  He has other income from dividends and interest and receives a small amount by way of government benefits.  Apart from his obligations related to the ownership of the M home he has no property related financial commitments.  He pays child support as assessed, currently $143 per week. 

    e)As for the wife, she is not presently in paid work.  She has done some domestic cleaning but a good deal of her time is spent doing voluntary work in her mother’s business which markets clothing for older women.  On her account of it, the business is not yet sufficiently viable to provide her with a salary but she hopes that will change in the future and she will be able to derive an income from her efforts.  Her current income consists of government benefits and child support paid by the husband.  She has the benefit of accommodation with her parents who also pay her household expenses and petrol amounting to $50 per week [see Part F, financial statement]. 

12. Turning to parenting matters, on 6 December 2004 the husband instituted the current proceedings in the Federal Magistrates Court.  During the preceding months there had been continual differences about what was best for the child in their changed circumstances which they attempted to address, unsuccessfully as it happens, through mediation which concluded around September.  This unsettled state of affairs took place against a background of the husband endeavouring to establish what he saw as a continuation of the pre-separation shared care.  In other words, he would care for the child on weekends and public holidays [relevant to a later development in May 2005] and his mother would look after her one day a week.  His view about it, at least as to part, is reflected in this passage of his affidavit:

    ‘Under the arrangement achieved through mediation (since September 2004 to the interim orders of 30 June 2005), [the child] was with the wife] for 70 % of the fortnight (coincidentally the amount of time that [the child] was used to having me around) and [the child] was with me for 30 % of the time.

    Proposals  The mother’s time   The father’s time

    Before final separation  84%  70%
      My proposal on day of separation  57%  43%
      [the mother’s] proposal received 19/7/04          79%  21%

    Plan since Sept 2004 to June 2005  70%  30%’

13. His concerns about achieving a continuation of the pre-separation arrangements are set out fully in his affidavit where, amongst other things, he relates urging the  to focus on what is best for their daughter, to work together, to not be so restrictive, he reminded her they can do things together, and he told her that as time goes on there will be events they will both want to be involved in, and surely an effort could be made to enjoy those occasions rather than put their daughter ‘into an unenviable position where she has to decide who she wants to sit with’. 

14. However he saw the child’s interests being served following separation, his proposals did not meet with the approval of the wife who saw them as inconsistent with the child’s need for stability and routine as well as impracticable given the distance between their residences.  Added to that, she maintains she had to contend with the husband’s manner towards her which she describes as ‘bullying’ and ‘condescending’.  She would adhere to these descriptors about his manner of relating to her right up to the hearing, but perhaps an illustration of the latter might be this passage from the husband’s evidence about his efforts post separation to convince her to his point of view:

    ‘I have also regularly provided [the wife] with reading material and research summaries to back up my reading in the hope that she may be better informed when making decisions about [the child’s] best interests.  [The wife] stated that she was not interested in research.  I can recall giving [my wife] a few articles and showing her articles to support what I was saying (BN# 39).  In August 2004, I prepared a three-page summary (BC) for [the wife] to address her concerns about the volume of articles that I had researched.  I do not recall offering [the wife]anything further.’

15. In these early months before Court proceedings began to regulate the child’s arrangements, there were other developments which only need to be recorded now in a summary way:

    a)The child’s 3^rd birthday in September 2004 turned into an unpleasant experience.  There was elaborate detail given by the husband of proposals and suggestions about how and where it would be celebrated, different versions emerged about where it was anticipated the gift giving would occur, there was dispute about whether the husband was angry gifts were opened earlier than he anticipated, and ultimately there was unpleasantness about the simple issue of what gifts the child should take to her mother’s and if some should go with her father to his place. 

    b)In a deteriorating climate, the husband decided to keep the child overnight on a Sunday evening in October.  As he explained it, he was not prepared to see his time further eroded and thus the child would have the ‘absolute minimum’ of four nights a fortnight with him.  He received a letter a couple of days later from the wife’s solicitor in which it was alleged he had committed domestic violence when he had advised the wife he would be keeping the child overnight.  He takes exception to this allegation.  He denies being violent then or at any other time in his relationship with the wife.  He also denies her allegations of intimidating behaviour during the relationship, such as thumping the bench in front of her during disagreement, though he says he does recall times of frustration with her and difficulties getting her attention.  He points out he has never sought or required the services of a psychologist in the course of his employment and, contrary to her evidence, his moods did not and do not swing violently and unpredictably.  Such allegations, he maintains, are inconsistent with his character - a topic that falls within Dr V’s evidence and so can be left for later discussion. 

    c)In any event, the husband also sought early in the separation to establish block periods to be spent with the child during school holidays when he would adjust his work commitments.  To that end, in late September he advised the wife by letter of a holiday he had booked for later in the year and there was a deal of correspondence exchanged about the topic.  But just prior to his departure for the holiday he received a message from the wife that the holiday would not be happening and if he wanted to know more to ring the police.  He was also contacted by the police.  What had occurred was a suggestion that the child may have been sexually abused and the authorities were notified.  The suggestion came from Mr D, a friend of the parents, who the husband says had written books about the issue of sexual abuse of children which he was trying to get published.  In any event, Mr D had relayed to the wife concerns about the child’s supposed behaviour towards him, summarised by Ms J in her first report like this -

    ‘..[Mr [D] had] described how [the child] had stroked the inside of his thigh towards his genitals, at the same time looking up at him and seemingly waiting for a response.  This had taken place on three different occasions.’

    There had also been remarks about friends having observed the husband ‘tongue-kissing’ the child at a wedding attended after separation.  Mr D had advised the wife to take the child to a doctor, which she did, and the doctor referred the matter to the appropriate authorities.  From there the wife was interviewed and the child examined.  The police interviewed the husband on 5 December, with his full co-operation.  There was no substantiation of any wrongdoing, by him or anyone else, towards the child.  It was at that point the husband instituted the current proceedings. 

    d)Like the allegation of domestic violence, the husband sees the allegation as directed towards limiting his time with the child.  He sees the difficulties he had negotiating with the wife as related to her efforts to thwart his time with the child and his involvement in her life and he also points to the timing of the intervention on the eve of the occasion he was to take the child on the planned holiday.  Rather than support and encourage time and involvement, he sees the wife as trying to reduce their time together and to cut him out of the child’s life as much as possible. 

    (e)The wife denies the allegation of suspected abuse was motivated by mala fides on her part and she also denies trying to cut him out of the child’s life.  It is her case she was genuinely motivated by concern in taking the steps she did after Mr D’s intervention and only did what she had been advised to do, as was appropriate to the circumstances confronting her.  As for trying to limit the husband’s involvement with the child, from her perspective the problem lies with the husband’s personality and his manner of communication which she finds obsessive, over detailed, intrusive and relentless.  She finds it impossible to maintain with him any boundaries or sense of proportion in matters concerning their daughter and she experiences the frequency and style of his communications as a form of harassment which she has to cope with constantly.  She also finds his actions and demeanour in getting his point across to be intimidating at times, making impossible effective communication where she can make her voice heard. 

16. On 14 February 2005 interim orders provided for residence in favour of the mother.  Contact between the child and her father was expressed to be at times agreed but not less than alternate weekends from 8am Friday until 7pm Sunday and Wednesday overnight every alternate week, from 8am Sunday until 10am Monday commencing 5 March 2005 and each alternate week thereafter.  Telephone communication was set for three times a week at times specified.  Those orders also provided for the appointment of a child representative and at some point a Family Report was ordered. 

17. The orders did not bring an end to dispute about parental matters.  They could not agree on the child’s kindergarten enrolment for 2005.  There were differences about whether she would be involved in a program about separated families, called ‘[S]’, amongst others, though the husband would not frame the differences on that topic as ‘disagreement’.  Disagreement did occur, however, between the husband and the kindergarten staff about his presence there.  That led to action he took in the Anti-Discrimination Tribunal about their views on the extent of his involvement in the kindergarten.  As he explained the surrounding circumstances, after being interviewed by Dr V he had some time and rang the kindergarten to ask if he could help out, they rejected his offer telling him there was a new policy, and he felt discriminated against. 

18. The interim orders did not make any provision for special occasions such as Mother’s Day and, when that occasion arose in May, the child did not spend the day with her mother but with her father.  In the lead up to that date there was a raft of correspondence between the parties’ solicitors in which the husband agitated adherence to an agreement reached the previous September about holidays and public holidays being spent with him and he sought to have the mother commit to that agreement.  She would not do so, apparently taking the view that the interim orders superseded any earlier agreement.  Unable to achieve his goal, the husband did not permit the child to spend the day with her mother unless the mother agreed he would henceforth have the child all of the public holidays.  Rather than paraphrase them, his reasons are probably best explained in his own words: 

    ‘282.   I, in good faith and based on the September 2004 agreement, had been of the understanding that [the wife] was continuing to permit [the child] time with me over the public holidays and school holidays.  I was already concerned that if [the child] were to remain with [the wife] on Mothers' Day, in accordance with the September 2004 agreement, that [the child] would go for eight whole days without having any time with me other than by telephone.  However, I reasoned that this time would be compensated for eventually through the upcoming public holiday time in June and August.  When [the wife] indicated that she had no intention to honour the agreement made in September 2004 and that she was simply going to comply with the minimum time provided for in the court order of 14 February 2005, I felt that I needed to rethink the merit of permitting [the wife] to have time with [the child] for the whole of Mothers' Day.  I believe the agreement of September 2004 to be still valid, until both parties agree on a negotiated alternative agreement or the court determines otherwise. I felt that I had no mechanism to insist on compliance with the September agreement, and so I no longer viewed that it was in [the child’s] best interests for me to consent to a further reduction of the time that [the child] was to have with me, by [the wife] having [the child] for the whole of Mothers Day (without an agreement for appropriate compensatory time).’

1. Taken to the topic in cross-examination, the husband emphasised the long history of public holidays being spent in his care and that he wanted some form of security from the wife who was insisting on adhering to the terms of the orders [on the one hand] yet asking for a departure from them [on the other] to have Mother’s Day with the child when the orders made no mention of the occasion.  As he put it, she could not have it both ways. 

2. Interviews for the first Family Report were conducted later in May.  At the time, the husband was maintaining a proposal for equal shared time.  If that was thought undesirable by reason of the degree of conflict, he proposed being the parent with the majority of the time and the mother would have close to half time.  He identified this outcome as warranted by his ability to be more cooperative than the wife.  The wife was maintaining what was described as the ‘more conventional arrangement’ of every second weekend from Friday afternoon to Sunday afternoon and a couple of hours in between those visits.  Major issues identified by the reporter were the conflict between the parents and the child’s primary attachment and relationships with each parent.  After giving an account of the interviews conducted, she recorded her assessment of the child as a ‘delightful, spontaneous little girl, confident for her age … curious and enjoys exploring her environment …fairly easy-going personality … meeting all of her milestones’.  Summarising her opinion, she noted the mother’s view of the father as controlling and his anger if she did not consult him on every issue, however big or small.  Ms J said there was some support for this dynamic from her own observations.  She noted the husband’s view of the wife as unco-operative bout the division of the child’s time and yet she noted he had not consulted the wife over things such as riding horses or flying interstate.  Ms J assessed the child’s primary attachment being to her mother from whom, she said, the child derives her ‘inner sense of security’.  She said the child is flourishing in her development and needs to continue living with her mother.  At the same time she assessed a warm and loving relationship between the child and her father, and this also needed the opportunity to flourish and develop.  But she did not support the husband’s proposal for equal shared care.  She regarded the conflict between the parents as seriously problematic, commenting that something as straightforward but nonetheless critical to a young child - bedtime routine - was a source of dispute.  On what she had available to her, she recommended the child spend every second weekend with her father from Saturday morning until Sunday afternoon and in the other week she spend one overnight if this fitted in with his work hours and her kindergarten and later her pre-school.  She considered the weekends could increase by starting on Friday afternoons around Christmas 2005 and when the child reaches school age it could extend to Monday morning, though the overnight in the other week would cease at this time because of the distance involved and the disruption to her school week.  Finally, holiday contact should not be for longer than one week at a time until the end of her first year at school.

3. After the release of the Report the matter came back to Court and further interim orders were made by consent on 30 June 2005.  The residence order continued and the recommendations of the reporter were implemented.  Contact with the husband was agreed to be ‘at all reasonable times as may be agreed’ but to include these times:

   ‘(a)Each alternate weekend from Saturday 9.30am to Sunday 5pm commencing from Saturday 16 July 2005, such contact to continue until 31 December 2005.

   (b)Subject to the father being available to supervise the child during this time and subject to the child’s pre school schedule, each other week, from Wednesday 5.30pm to Thursday 5.30pm commencing from Wednesday 6 July 2005.

   (c)With respect to subparagraph (a) herein, from the father’s first contact weekend in January 2006, he shall have the child from Friday at 5pm until Sunday at 5pm, each alternate weekend PROVIDED THAT once the child commences Year 1 at primary school, the weekend contact shall be from Friday after school at 3pm until Monday at school at 8.45am, each alternate weekend.

   (d)Once [the child] commences Year 1 at primary school, the mid week overnight contact referred to in subparagraph (b) herein shall cease.’

4. Provision was also made for telephone contact once a week on Mondays from 6pm to 6.15pm, for Father’s Day, Mother’s Day, birthdays, and half of the school holidays [provided until year 2 the holidays were to be for period of no more than one week duration], and there were agreed arrangements for the Christmas period.  The husband was to do the travelling, each were to keep the other informed about residential address and phone numbers and they were directed to undergo psychiatric assessments arranged by the child representative. 

5. In October 2005 they started to keep a communication book which was obviously an attempt to assist in bridging the poor state of their communications and presumably to aid the child’s interests by having information relevant to her care relayed from one to the other.  The first entry on 13 October relates to the return of a necklace followed by the husband seeking the wife’s opinion on the child’s remark that she has no friends at kindy.  There are now two books [exhibit 3] containing many entries directed to one topic or another, the last dated 27 January 2007.  Disputes were agitated here about the book’s purpose and the interpretation of entries.  Certainly the book is now regarded by the wife as an ineffective communication tool and she has recently declined to use it.  She would have it accepted that her description of the husband’s style of communication as ‘bullying’ and ‘harassing’ is apparent from his entries which also demonstrate his insistence on communicating on all manner of things, however small.  For his part, the husband supports the continued use of the book which, he agrees, was implemented because they could not communicate otherwise.  He says he also finds it useful if things are written down because he can rely on it later and refer to it to show what happened.  Indeed, large parts of his affidavit include passages quoted from the book about one topic or another.  He also commented during discussion of the book that it would be a record of the child’s life by showing developments along the way.  The irony of that seems not to have been recognised. 

6. Dr V conducted interviews in mid-October 2005 and he produced his first report in November.  After giving an account of the interview with each parent, he said the results of mental state examination demonstrated both to be ‘a study in contrasts’, an observation borne out by their presentation at the hearing.  As for the husband, he found him pleasant and co-operative but difficult to engage or get to know as a person.  He said he is ‘markedly obsessional and tended to get buried in intricate detail including of conversations’ which was at times difficult to contain, he was described as well organised but not good at expressing his feeling and could be said to have the characteristic of alexithymia, but he has some capacity for thoughtfulness about issues.  Dr V found no evidence of depression or anxiety, though certainly a very controlled individual with respect to his feelings and fairly humourless.  He was focussed on the child’s need to have a meaningful relationship with him and he believed the mother to be obstructing this.  His cognitive functions were intact and he has a superior IQ.

7. As for the wife, Dr V described her as very pleasant and co-operative, a fairly engaging person with well developed social skills, rich in affect but not histrionic.  He assessed her as thoughtful and mature, with a capacity for self-reflection.  Nor was there any evidence of depression or anxiety in her presentation, she was reactive and warm and had a sense of humour.  She too was centred on the welfare of the child and her role.  She was ‘not entirely critical of her ex-partner as a father’ though convinced shared care would not work.  Her cognitive functions were intact and he assessed her as having normal intelligence.

8. From this footing, his provisional diagnosis was that neither suffers from any major mental disorder such as psychosis, mood disorder, anxiety disorder or organic mental state.  As he saw it, the issue was personality.  On that topic, he said:

   ‘With respect to the mother, […] on the data available personality issues would seem to fall in the normal range.  The only issue of note is some problems in maintaining relationships and from her own description the relationship history indicates engaging with males who have significant problems.  This may indicate a need to nurture and "change" men who have difficulties.  Apart from this there is nothing else that emerges on the history.  The suspicion that her child had been sexually abused does not appear to have emerged from any psychopathological issues or illness on her part but, as is often the case in false accusations of child sexual abuse in the Family Court situation, the idea appears to have been implanted by an individual she looked up to and was presumed to have some knowledge and expertise.

   With respect to the father, […], there are significant personality vulnerabilities that have presumably arisen out of the more unfortunate aspects of the developmental history.  He presents as a fairly emotionally restricted individual.  He is also highly obsessional and controlled with difficulty in accessing his emotions and expressing them.  As to whether the personality vulnerabilities are of an extent as to constitute disorder is a matter of judgement and would require further information.’

9. After consulting documents provided, including the Family Report, he did not alter his diagnosis and added:

   ‘…..I note that the relationship between the parents is highly conflictual with claims and counter claims, some on issues that do not appear to be of great importance.  Such a degree of conflict may indicate that the personality issues in both the parties are more significant than emerges from the clinical interview.

   I trust the following points are useful.

   •          The father does not suffer from any mental disorder that would preclude him from being a contact parent and in any case this is not in dispute.  I note further that the personality issues in him are not such as to of themselves make him an unsuitable parent for a shared care arrangement.  There is nothing to suggest that he will not take good care of the child or be a nurturing parent.

   •          Likewise there is nothing of psychiatric significance in the mother that would preclude her being an effective mother in the care of the child.

   •          It would seem to me the most significant issue with respect to a shared care situation is the level of conflict and distrust between the parents.  It would seem to me that there has to be at least a modicum of co-operation between the parents for a shared care arrangement to work.

   •          The question of whether it is in the best interests of the child to be in a shared care arrangement as against standard contact with one of the parents as the residential parent is of course a matter that only a Court can determine taking all issues into account.  Psychiatric status can only be a small part of such a decision.’

10. In 2006 the child moved to pre-school and again there were disputes about this.  He says that without consulting him, the wife elected to have her attend on certain days of the week which would mean she would be at preschool on one of the days she was to be with him under the orders.  The wife denies he was left out of the loop and did have the opportunity to have input into the days of attendance.  In any event, the husband saw the days selected as restricting the child’s weekday time with him while there were no corresponding restrictions on the weekday time she would spend with her mother.  He made the decision to not take her to preschool on those days.  Asked under cross-examination about the decision, he gave an elaborate reply, the core of it being that her attendance would cut across his time every second Wednesday/Thursday, it came down to deciding whether it was more important for her to attend preschool or spend the day with him and he opted for the latter.  He said he was concerned about the impact on the child of not attending on those days, but he kept in touch with the teachers who said she was performing well and there were things he did with her on those days anyway. 

11. The decision, of course, is one about which parents might reasonably disagree and there is no criticism of the husband for the election he made.  Nonetheless it sits a little at odds with his strongly expressed desire to be involved in all aspects of the child’s activities and life and to demonstrate to her his interest in her education.  Taking her to preschool on those days and picking her up may have given him the opportunity to be involved and to share with her the many things that can arise out of those comings and goings. 

12. 2006 also saw further discord about holiday time and again a passage from the husband’s affidavit is a but a fragment reflecting something of the nature of the issue:

    ‘314.   When the communication book was next returned, on Friday 28 July 2006, [the wife] had written a proposal in relation to September school holidays.  In response, I wrote in the communication book on Sunday 30 July 2006: "In your proposal, you are short-changing [the child].  If you are counting holiday time from Friday 5pm, then you need to count holiday time from break up to the time [the child] goes back to school at 9am.  If you divide that time by 2, you will find that [the child] is entitled to more time with me.  You cannot have it both ways.  Are you going to give [the child] the minimum the Court Orders provide for (as per my proposal) or offer [the child] more time with me'?  Your proposal breaches the current court orders.  I propose you reconsider my proposal or add on the additional time that [the child] is entitled to from Su 7/10/06 at 5pm.  Again, I also believe that you should share the travelling costs and time equally or in proportion to the amount of time [the child] is with you.’

13. Asked about his attitude to holiday time in cross-examination, the husband would not agree with the suggestion that he is concerned with the minutiae whereas the wife takes a broader view.  As he explained, the holiday period is for 16 days, plainly 8 days is the minimum time which should be spent with him, for the child the 1 day is substantial as it is equal to 25% of the time, and the child is entitled to share it with him.  On this reasoning, he cannot understand why she cannot be more generous and why she maintained the period should be ‘one week’.  But as counsel for the ICL had him acknowledge, the terms of the interim orders refer to ‘one week’ as the duration of school holiday time with him and not 8 days. 

14. In anticipation of the October hearing an order was made for an updated Family Report which was released in mid-August.  Noting no changes in the parents’ circumstances since the last report, Ms J recorded a summary of her interviews which needs no replication here, but she did note the husband’s presentation seemed to be more ‘constrained and balanced, suggesting that he has gained improved insight into advancing [the child’s] needs and lessening his contribution to the ongoing parental conflict’ though she added he was still not able to see the locked conflict he and the wife fall into.  She also noted a change in the wife’s presentation which she said had ‘swung in the opposite direction’ and she was ‘forthright and strong-minded’ in her views.  She was described as very protective of the child and in no doubt her approach is the right one.  Her attitude to the child’s fall from a horse while in her father’s care [a topic canvassed with both parents at the hearing] was the subject of comment, as was her attitude about sending Panadol with the child on a visit to her father.  Ms J concluded the wife over reacts and she commented on their different parenting styles about accidents and ailments being interpreted as parenting failure.  She elaborated on their views about the pre-school dispute and she noted the communication book had been the subject of argument about its function.  She assessed the child on this occasion again as a ‘bright, spontaneous little girl with a charming, outgoing personality … happy temperament … socially confident for her age.’  She concluded the child loves both parents dearly and she is ‘observably happy to be in the company of either of them.’  On the topic of time with each parent, the child was said to be clear about wanting to spend more time with her father.  Ms J summarised the parents’ future plans and their perspective on the child’s interests before expressing these opinions:

    ‘The father is preoccupied with his goal of having [the child] live with each of them on an equal basis or, alternatively, live with him as the primary parent.  He states that he devotes all of his time outside work hours and time with [the child] to this task.

    The mother seeks a reduction in the father's involvement because of what she sees as his irresponsibility.

    It is my view that she transfers her personal view of him to her view of him as a parent.  She is a very protective, cautious mother and her standards and expectations in this regard appear to be much higher than those of the general community.

    The father has controlling, obsessive qualities and there is no clear indication that he understands how this contributes to parental conflict.  For her part, the mother's convictions about what is right and wrong in parenting are unassailable, and now seemingly contribute equally to the parental conflict.

    It is my view that both parents have sound parenting skills and that each, on his/her own, would take good care of [the child].

    I have considered shared care but I cannot support the proposal in the light of this serious conflict.

    [The child] has been in the primary care of her mother for the whole of her life. She is flourishing.  I can see no strong reason to support a change in who she lives with. The exception to this might be the mother's reluctance to promote [the child’s] relationship with her father. Having said this, [the child] has always gone to each visit and the mother has fostered the child's happiness about the idea.

    I do not support the mother's view that visits need to be lessened.  The level of disruption that [the child] has experienced upon return is normal in the light of her age and circumstances.

    [The child] asks to spend more time with her father.

    I would be happy to recommend that [the child] spend up to five days per fortnight with her father.  There are practical problems in this regard because of the distance between their respective homes.  I would not like to see [the child] undertaking long travel periods before and after school in order for this division to take place.’

15. There was then a further report from Dr V in late January 2007 after interviews with the parents in early December.  The husband had asked the independent children’s lawyer to forward to Dr V an article about the psychological consequences of wrongful conviction and imprisonment [exhibit 2].  The husband explained the article was relevant to consideration of how the impact of the allegations of sexual abuse and domestic violence on him and on his presentation at interview.  On one view of it, his concern about the impact is understandable and there is no reason to doubt it was a traumatic development for him to have to confront, but - as was put to him by counsel for the ICL - it was quite a leap from what had actually occurred to an article about wrongful conviction and imprisonment. 

Shares in T   3,300

2. with the husband

ANZ bank   14,956

CUA bank  650

C loan   48,379

Household contents   3,300

Motor vehicle   4,500

71,785

Less

Credit card debt   1,331

70,454

Superannuation   79,658

Total Net  150,112  150,112

3. with the wife

B shares   10,372

Telstra shares   1,945

X shares   11,080

U shares   7,897

ANZ bank  300

Household contents   1,000

Jewellery and personal property   3,970

Motor vehicle   5,500

Total   42,064

Less

Debt to parents  500

41,564

Superannuation   29,311

Total net assets   70,875    70,875

Total net assets  358,455

Evaluation of contributions

1. In organising the listing of the parties’ current assets I have separated them into those jointly held and those they each own or have in their possession at the moment.  In doing so, I have separated out their superannuation entitlements from other property but the value is reflected in the total net asset figure.  This organisation aids the evaluation process from my point of view, rather than list all assets together in any order, as the jointly prepared list did.  The separation out of their superannuation entitlements from other assets brings their positions more clearly into focus [see Coghlan and Coghlan (2005) FLC 93-220] and assists in addressing the dispute about the extent to which the husband’s entitlement should be split, if at all, to satisfy the wife’s entitlement. Apart from that, any cash adjustment will have to come either from the husband, who seeks to retain the home, or from its sale.

2. That said, in evaluating their contributions to all property it will be appropriate to take a ‘global’ approach, rather than an ‘asset by asset’ or ‘category of asset’ approach, as discussed in cases such as Norbis (supra), Lenehan (1987) FLC 91-814, Bonnici (1992) FLC 92-272, and McMahon (1995) FLC 92-606.

3. This is a relatively short relationship, punctuated by two earlier separations, one for around 8 months during 2003.  They separated almost 3 years ago when their daughter was still under 3 years of age.  During the period up to their separation, and since, they have each made contributions of varying kinds. 

4. The husband came to the relationship in a stronger financial position with $99,000 in cash and investments.  Putting aside their chattels and related loans, that compares with the $10,000 the wife had in superannuation entitlements at the time.  He used some of his funds to pay off their loans and he paid 20% of the purchase price towards the cost of their first home from funds he had available.  As each home they purchased was sold, as I apprehend the situation, they used the proceeds to purchase the next property and so the initial deposit remains reflected in the value of the M property.  Other funds he had are reflected in investments now held either jointly or individually.

5. In the first months after establishing their common household the wife was the sole income earner and she contributed those earnings to their needs at the time.  Her paid work was later scaled down to less than full time but whatever she earned I am satisfied she contributed it to the needs of the family.  By the same token, the husband found paid work in March 2000 and from then until the final separation he contributed his earnings towards the family’s needs and he applied any surplus towards savings or investments.  Over the years he accumulated superannuation entitlements and just prior to separation he paid $1,000 towards the wife’s superannuation fund.  It is acknowledged they separated their finances in 2002 when they separated for some months, but that does not alter the fact that whatever they each earned they applied towards the needs of the family in one way or another, or at least the evidence does not suggest any use to the contrary.  To the extent that the husband’s evidence might be seen as diminishing the wife’s contributions by a suggestion she was not frugal or was spendthrift, there is no support from anywhere to sustain it.  As I find, they each used whatever income they derived for the benefit of the family.

6. Apart from their direct financial contributions from assets introduced and earnings, they each made other contributions until their separation.  The properties they acquired were either refurbished or improved in various ways and while they both made efforts in that direction, those of the wife and her family appear to have been the more prevalent.  She also did things to make the homes established more attractive such as making curtains and gardening to improve their setting.  By the same token, the husband assisted with some of the gardening and he also maintained the lawns, looked after their cars, and took responsibility for managing their finances in ways he described.  They each undertook domestic chores and related household tasks such as their work commitments allowed. 

7. Both contributed to the care of their daughter after her birth, such as their work commitments allowed, and they had some regular assistance with child care from the husband’s mother which enabled them to work without the cost of child care on those occasions. 

8. In the period since separation the husband has continued to work full time and has used his income to pay the costs related to the ownership of the home, such as mortgage instalments and council rates as well as pay child support as assessed.  On the other hand, he has had the exclusive occupancy of the home since separation though he has paid all of the costs related to his occupation.  There is nothing to suggest he has wasted money that might be otherwise available and from all accounts he has continued to be responsible financially.  He has continued to contribute to superannuation.  He has also taken an important role in the care of their daughter such as his work and other obligations have permitted, and provided for her from his funds while in his care. 

9. For her part, the wife has lived with her parents who have provided for her accommodation during this time though she has done voluntary work in their business to assist them get that established.  She has lived on government benefits and provided for their daughter during times in her care and with her educational needs from those benefits and from child support paid by the husband.  Similarly, there is nothing to indicate she has wasted funds available to her since separation. 

10. When their initial circumstances are considered and the roles they each undertook at various times, before and after the birth of their daughter, is examined along with their various contributions over the past 7 ½ years or so, their contributions should be seen as approximating equality but for one factor - that is the husband’s stronger financial position at the outset.  He used those funds partly to pay off debt, to pay the deposit on a home which provided their accommodation and they were otherwise maintained in investments. 

11. The husband makes the submission that his initial contribution should be exempted from the property pool for reasons he attributes to the shortness of the marriage and he adds to the submission by saying his ‘significant initial contribution has not diluted over time due to (his) significant contribution during and after the relationship’. 

12. The approach to initial disparity in financial contributions is the subject of many decisions of this Court, more particularly Pierce (1999) FLC 92-844 where earlier decision such as Money (1994) FLC 92-485, Bremner (1995) FLC 92-560, and Way (1996) FLC 92-702 were discussed. In a judgment delivered recently [C & L [2006] FamCA 1366, now on appeal] I was required to consider a submission about the so-called ‘erosion principle’ the case of Pierce was said to have established and to do so having regard to the decision of the Court of Appeal of the Supreme Court of New South Wales in Burgess v King (2005) 34 Fam LR 528 related to division of property between de facto married partners [but see also Bilous v Mudaliar & Anor (2006) 35 Fam LR 55]. As I said there, Pierce put an end to the conceptual analysis reflected in the use of expressions such as ‘erosion principle’, which the husband’s submission resembles, when disparity in initial wealth is being argued, and the frequently quoted passage from the joint judgment makes that apparent:

    ‘…In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.  In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also [C & C] (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and [Z & Z] (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10). ’

13. The measure of the weight to the assets he introduced has some counterbalance in the wife’s superannuation entitlement, but there remains a significant weighting in his favour nonetheless, particularly when regard is had to the use made of the funds he introduced.  As noted earlier, it is not an accounting exercise and obviously the evaluation of contributions fall within a range.  In my opinion when weighed in the balance with all other contributions, a distribution in the proportions of 62.5%/37.5% in his favour fits comfortably within that range. 

14. That apportionment represents a disparity of 25% of net assets and applied to their total net assets, including superannuation, equates with almost $90,000.  In my view that bears out the assessment. 

Section 75(2) factors

1. The husband is 41 years of age and the wife is 35.  Neither has any health problems and so that does not operate as an impediment to an evaluation of their likely future circumstances as best they can be foreseen at this stage. 

2. The contributions assessment will give them net assets in the proportions already indicated.  Neither has any assets or resources other than those already mentioned. 

3. The wife will have to pay legal costs to the Legal Aid Commission equivalent to 20% of whatever she receives or the amount of those costs, whichever is lesser.  Her costs are calculated to be in the vicinity of $23,500 and so that will be the extent of her obligation.  The debt has not been included in the earlier lists because unpaid legal costs are more appropriately dealt with in considering costs under s 117 of the Act if an application is made following delivery of judgment.  I make mention of it here merely to acknowledge the obligation but do not take it into account as a factor here.

4. As for earnings, they should both be seen as having an earning capacity to exert over the many years of working life still ahead for each of them.  But there are some differences in their employment history and skills levels.  There is nothing to suggest the husband will not be able to continue earning at his current level and may even progress to higher levels as time goes on and opportunities present, provided he stays in full time employment.  Whether he does or changes his current job will be a matter for him to decide in light of this judgment, amongst other considerations.  Because the wife is not in the paid workforce earning an income using her skills, it is difficult to say what she will be able to earn in the future.  Certainly she has a capacity to earn income for the future rather than to continue volunteering her services to her parents.  Nonetheless her skills base suggests it would not be in the same band of income the husband could earn and it is proper in the circumstances to see them as having a prospective disparity in income earning potential.  This weighs in the wife’s favour.  To that I should add, as noted earlier, the wife is in a relationship with a gentleman little is known about beyond that he is a primary school teacher and on her account of it the future of that relationship may include marriage.  But there is nothing about that situation to warrant discarding a comparison of her earnings with the husband’s for the future as best that can be measured. 

5. The age differential, and the husband’s likely earlier retirement, is not all that significant at this stage, although it does mean he can expect to be in a position to access his superannuation entitlements a little before the wife can. 

6. As for the future support of their daughter, it can be expected the husband will continue to contribute child support for her upbringing according to any child support assessment or variation through permissible procedures as appropriate to circumstances as they develop.  He will also provide for her at times she is in his care.  He has no financial obligations to any other person.  The wife will receive child support he pays but she will take responsibility for the child’s financial needs over and above the child support paid. 

7. Under the parenting orders the wife will have the care of the child for most of the time for the foreseeable future, at least during school terms, and therefore she will be responsible for the many day to day decisions necessary to their daughter’s supervision and care for the many years to come before she becomes independent.  Given their daughter’s very young age, this is a factor of some significance and weights in the wife’s favour. 

8. When all relevant factors are reviewed, disparity in future earning capacity and ongoing day to day parental responsibility for many years call for an adjustment to the wife’s contributions assessment.  In my opinion they would be recognised by a further 12.5% in her favour.  Expressed in monetary terms, that amounts to around $44,800 which is appropriate having regard to their total net asset pool. 

Just and equitable

1. The assessments mean that their property would be distributed equally.  Of course there may be room for disagreement about the apportionment determined between contributions and s 75(2) adjustment, but I am satisfied in the final analysis that this distribution is proper and would bring about a just and equitable division of their property. 

2. Applied to net assets of $358,455, the wife would be entitled to retain assets to the value of $179,228.  Including her superannuation worth almost $29,311 she has assets worth $70,875 and so would need to be paid a further $108,352. 

3. The husband would have assets worth $287,580 and payment of that amount would bring the value of his assets back to $179,228.  The mix of his assets would be equity in the home of $134,168, shares and cash worth around $67,285, furniture and a motor vehicle worth a total of $7,800, and a superannuation entitlement worth $79,658. 

4. The question remains as to how the wife’s entitlement is to be taken, either with a split of the husband’s superannuation in some proportion or not.  In resolving that through to a just and equitable outcome, the mix of assets each would retain is a factor to consider.  Expressed as a proportion of his overall entitlement, his superannuation component is a little over 44%.  For the wife, the proportion is a little over 16%.  If their superannuation were to be distributed equally - the total is $108,969 and half is $54,484 – it would mean the wife would take in the split a base amount of $25,173 and her cash component would be reduced accordingly. 

5. All things considered, I am of the view it would be more just and equitable for their entitlements to be satisfied in part by the wife taking part of her entitlement by a superannuation split.  That is because there is no compelling feature of their circumstances, more particularly hers, that heads the discretion in the direction of a total cash payment.  Nor is there anything to suggest any apportionment other than an equalisation of their entitlements would be just and equitable, or at least none I can identify.  If the husband were assured of staying in the home that might have been a factor I could have considered to alter the apportionment in recognition of the advantage he would gain; that is, by saving the upheaval of relocation and the associated costs as well as the costs related to purchasing another home.  But there is no certainty about that and so I ultimately conclude in all of the circumstances it will be appropriate to equalise their entitlements in framing the orders.  It will mean the wife will receive a less in cash for her more immediate needs, whatever they might be, but she will have a greater sum for future security and the converse holds good for the husband. 

6. In closing I should refer to the husband’s argument that there will be capital gains tax payable on the sale of shares.  That is accepted, but so too will there be on the shares held by the wife.  There is no evidence of what the tax would be though his detailed figures give some insight in to the possible magnitude.  It is a factor taken into account in coming to a decision about their entitlements but not an issue that needs any further discussion. 

Form of orders - property

1. This means that the wife will have to be paid $83,179 [rounded to $83,200] and a split of the husband’s superannuation with a base amount of $25,173.  With that adjustment, each will be entitled to retain assets presently in their possession. 

2. Obviously if the husband is to be given the opportunity to buy the home then some time limit should be imposed and a month strikes me as an appropriate time frame to arrange his finances.  If not paid, the home will have to be sold and orders will provide for that to occur as soon as practicable thereafter.  The sale price is unlikely to be the agreed price and no account was taken in the earlier figures of sale costs.  If the matter proceeds along that path, the parties’ entitlements should be paid out in proportionate terms, consistent with the 50/50 distribution overall, and adjustment made for their retention of assets other than the home and superannuation.  The husband has assets net assets in that category worth $70,454 and the wife has net assets worth $41,564.  That makes a total of $112,018 and 50% of that is $56,009.  The wife would need to receive a further $14,445 from the husband’s share of the sale proceeds to receive her 50% entitlement overall. 

3. The orders for sale can be in general terms and should be able to be worked out without controversy by the parties’ solicitors.  If not, machinery orders can be made, with the accompanying risk as to costs should that become necessary.  The other orders are self-explanatory. 

I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  24 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HANDLEY & TRANTER