Harrison & Harrison

[2007] FamCA 115

[2007] FamCA 115

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT PARRAMATTA

No. PAF.1872 of 2005

BETWEEN:

MRS HARRISON

Applicant/Wife

AND

MR HARRISON

Respondent/Husband

CORAM:  Justice JPH Stevenson

DATE OF HEARING:                   29, 30 & 31 January 2007

DATE OF JUDGMENT:               28 February 2007

JUDGMENT OF THE COURT

APPEARANCES    :           Mr Dura of counsel instructed by Levy Partners, Solicitors, DX 8404 RYDE appeared for the Applicant Wife

Mr Campton of counsel instructed by Newnhams, Solicitors, DX 665 SYDNEY appeared for the Respondent Husband

CATCHWORDS

FAMILY LAW - PROPERTY SETTLEMENT - Contributions

THE PROCEEDINGS

1. The parties disagreed in relation to parenting orders and settlement of property.  During the course of the hearing they were able to reach agreement as to arrangements for the care of their son:  O born in April 2004 and now 2 years old.  I am asked to make orders by consent in relation to parenting arrangements for O, thus there remains only the issue of alteration of property interests for determination.

2. The parties disagreed as to the value of the net pool of their property.  The husband contended that the total value of the assets including superannuation was $1,491,177, with liabilities totalling $866,203, meaning that the net pool amounted to $624,974.  The wife contended that the total value of the superannuation and non-superannuation assets was $1,385,177 with liabilities totalling $847,915, meaning that the net pool amounted to $537,262.

3. There were issues as to the value of the wife’s interest in a property at C and her jewellery and furniture.  There was also a dispute as to the extent of her liability for the mortgage on the C property.  The parties disagreed as to whether they have current debt to the mother of the husband, and if any such liability carries interest.

BACKGROUND

1. The husband, who is 36, and the wife, who is 34, married in November 2000 and separated in September/October 2004.   They reconciled in February/March 2005 and separated finally on 30 June 2005.  They thus cohabited for slightly longer than 4 years. 

2. In December 1997 the wife and her parents, Mr and Mrs M purchased a holiday house at C as joint tenants.  The purchase price was $145,000 and they obtained a mortgage advance of $111,000 from the Commonwealth Bank.  There is a dispute between the parties as to the value of the wife’s interest in this property and the extent of her liability for the mortgage. 

3. In May 2000 the parties purchased an investment property at Y Queensland, for $220,000.  They borrowed all of the purchase money from R Loans.  The property has been tenanted since its purchase and the parties now agree that it is to be sold. 

4. Following their marriage the parties lived with the husband’s mother in her home at A for approximately 2 years.  They disagreed as to whether either or both of them paid board to the husband’s mother and/or contributed to the household expenses. 

5. In May 2001 the parties and the husband’s mother purchased jointly L for $550,000.  The three purchasers obtained a joint mortgage of $575,000 from A Loans, on the security of the L property and the husband’s mother’s home at A.

6. The L property was rented until October 2006, when the wife unilaterally terminated the lease and took up occupation with O.  There is a dispute between the parties as to whether there should be a sale of the L property.  The wife wishes to have the property transferred to her.  The husband seeks that the parties join in the sale of the property, for the sole reason that he regards the valuation of the single expert as “conservative”.  He has no qualifications in the field of real estate valuation and, in my view, he is not entitled to insist upon a sale of this property on the basis of his disagreement with the court expert.

7. In May 2003 the wife decided to sell her A property, thus it was thus necessary that the mortgage to A Loans be discharged.  The parties raised an additional loan and made a lump sum payment of $121,772 to the husband’s mother in January 2004.  Between April and November 2004 they paid to her additional funds totalling $19,300.  There is a dispute as to whether any further amount is now owing to the husband’s mother and whether such sum should carry interest.

8. At the date of the marriage the wife was employed as a recruitment consultant and as a kitchen hand.  She spent approximately 3 months out of the paid workforce when O was born and returned to part time employment in July 2004.  Thereafter, O was cared for by his maternal grandparents while the parties were at work.

9. At the date of the marriage the father was employed as an IT consultant, having completed a course of study early in 2000.  He undertook paid employment throughout the cohabitation of the parties.

10. O has lived continuously with the wife since the separation of his parents.  As a consequence of the consent orders which I am asked to make in relation to O, the time which he spends with his father will be substantially increased.

APPROACH TO THESE PROCEEDINGS

1. According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:

   ·    firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined

   ·    secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other

   ·    thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution

   ·    finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.

THE ASSETS, LIABILITIES AND FINANCIAL RESOURCES
THE ASSETS

1. There was disagreement in relation to value of the following assets:

   1.        The wife’s interest in the C property

   2.        The wife’s jewellery

   3.        The wife’s furniture.
   Otherwise I will make findings as to the assets of the parties in accordance with their agreement.

The wife’s Interest in the C Property

1. A title search of the C property shows the registered proprietors as “[the wife’s father], [the wife’s mother], [the wife] as joint tenants”.  Likewise, these three people appear on the transfer document as joint tenants.  The Commonwealth Bank mortgage shows these three people as mortgagors (exhibit 5).

2. The wife alleged that she holds a one quarter share in this property, with each of her parents and her brother also holding a one quarter interest.  Her explanation for the fact that her brother does not appear on the title is that he was 16 years old when the property was purchased in 1997.  Interestingly, it seems that this brother witnessed the signatures of the wife and her parents on the mortgage document.

3. The husband alleged that the wife holds a half share in this property.  He alleged that she told him that she holds a half share in the property. The husband also relied on the wife’s admission that she paid an amount equal to one half of the mortgage repayments until September 2006.  At that point, her brother began to contribute to the mortgage repayments.

4. I am not persuaded there is substance to the arguments put by either party in relation to the interest of the wife in the C property.  I can see no reason for a finding that her interest differs from that which appears on the documents of title. 

5. The husband relied on statements allegedly made to him by the wife as to the extent of her interest in the property.  She denied having told him that she holds a half interest.  Even if it were accepted that she did say that she holds a half share, her statements alone would be insufficient to create an equitable interest in the property in her favour.  She did pay one half of the mortgage instalments throughout the marriage.  This fact may well be relevant to the issue of contribution but does not, in my view, assist the husband in his attempt to increase the value of the interest of the wife in this property.

6. There was no evidence in the case for the wife from her brother or either of her parents.  It is thus impossible for me to make any finding as to their intentions in relation to the equitable ownership of the property.  I am left with a bald assertion on the part of the wife that her brother holds a one quarter share, without any corroborating evidence whatsoever.

7. It seems to me that the only proper finding is that the wife’s interest in the C property is as appears on the documents of title, that is, a one third share.  I thus find that the wife’s interest in the C property is valued at $133,300, which figure is rounded off from one third of $400,000 or $133,333.3.

The wife’s Jewellery and Furniture

1. The husband relied on the fact that the wife assigned a higher value to these assets in her Financial Statement sworn on 21 September 2006, compared to a later document of 24 January 2007.  In fact, the wife made no reference at all to any jewellery in her 2007 Financial Statement.  The husband thus maintained that the wife’s furniture should be attributed a value of $10,000 rather than $5,000 and that jewellery should be included in the list of assets at a value of $1,000.

2. The contention of the wife was that the value of these two assets should be assessed “in accordance with her evidence that there was a break-in [at her rented premises at [K]] on 17 October 2006 and that items were stolen”.  In her affidavit sworn on 24 January 2007 the wife referred to this break-in and said that the items stolen from the premises included a television, video, camera and her jewellery box.  In these circumstances, I regard it as entirely reasonable that she reassessed the value of her furniture and jewellery.  I find that the wife’s furniture has a value of $5,000 and that she does not possess jewellery of any value.

3. Accordingly I find the assets of the parties to be as follows:

Non superannuation assets
1.	L	$685,000
2.	Y	$375,000
3.	Wife’s interest in C property	$133,300
4.	Wife’s savings	$2,000
5.	Husband’s savings	$2,358
6.	Wife’s Mazda car	$26,000
7.	Husband’s Barina car	$2,500
8.	Wife’s furniture	$5,000
9.	Husband’s furniture	$300
10.	Wife’s Services business	$5,000
11.	Husband’s paid legal fees	$58,368
12.	Wife’s paid legal fees	$42,193
13.	Joint Westpac account	$2,500
Sub-Total:	$1,339,519
Superannuation Assets
14.	Wife’s AMP Superannuation	$48,050
15.	Husband’s MLC Superannuation	$30,908
Sub-total:	$78,958
TOTAL:	$1,418,477

LIABILITIES

1. There was agreement in relation to the parties’ liabilities with the exception of: 

   1.        Debt to husband’s mother

   2.        Wife’s debt to her parents.
   Otherwise, I will make findings as to their liabilities in accordance with the agreement of the parties.

Debt to the husband’s mother

1. In her affidavit the husband’s mother said that she and the parties agreed that she should receive $148,964 in relation to her interest in the L property.  She annexed to her affidavit a calculation of this figure written by the wife.  The agreed value of a one-third share in the L property was $210,000, from which was deducted the balance of the husband’s mother’s portion of the mortgage liability, being $61,619.  There were also some minor adjustments on account of legal costs, etcetera.

2. The husband’s mother said that the following payments were made by the parties to her in reduction of this debt:

   January 2004            $121,772
   April 2004                $10,000
   June 2004                 $1,000
   November 2004       $8,300
   TOTAL:  $141,072

   After these payments, the balance due to the husband’s mother would have been $7,892, as she said in her affidavit.

3. On behalf of the husband’s mother, it was conceded that the above payments were made to her.  In her primary affidavit the wife gave a different account of the valuation of the husband’s mother’s interest in the L property and of the payments made to her.  This affidavit was sworn prior to the affidavit of the husband’s mother, which annexed the document calculating the value of her interest in the property.  It seemed to me that the wife simply cannot maintain her evidence in light of the contents of her own document, as annexed to the affidavit of the husband’s mother.  As I understood her case, in fact, she did not seek to do so.

4. The wife’s basis for disputing the quantum of the debt due to the husband’s mother seemed really to amount to a challenge to the addition of an interest component.  In cross-examination she conceded that “there is no issue that there was still money owed…..” but she said: “there is a huge issue as to whether interest is payable”.

5. In her oral evidence the wife tried to suggest that the figure used for the husband’s mother’s share of the mortgage on the L property was “incorrect”, despite the fact that she wrote this amount in the document to which I have referred.  On the basis entirely of her “recollection”, she suggested that the correct figure was $63,000 to $65,000.  I do not accept that the wife’s “recollection” is more reliable than her own contemporaneous document. 

6. There was some focus in the evidence on two withdrawals each of $5,000 from the parties’ joint St George Bank account on 9 March 2004 and 16 March 2004.  The husband’s mother was firm in her evidence that this money was not paid to her.  I accept this evidence, which was given in a most convincing manner, and there is nothing to show that she did receive this money from the parties.  The husband could say only that it was “possible” that this money was paid to his mother.

7. The wife was invited to provide an estimate of the current balance due to the husband’s mother, assuming that she did not receive this sum of $10,000.  She estimated a figure of approximately $4,000 but gave no basis for this assertion.  For these reasons, I find that the parties have a debt to the husband’s mother in the sum of $7,892.

8. I am not persuaded that the evidence warrants the inclusion of an interest component in the debt to husband’s mother.  No clear agreement as to the payment of interest emerged from the accounts of the three people involved in the transaction.  There was no reference to interest in the written document prepared by the wife.  There was no interest added to the payments made by the parties to the husband’s mother in April, June and November 2004.  In fact, the first demand by the husband’s mother for interest came in the context of these proceedings.

The Wife’s Debt to her Parents

1. The wife maintained that she owes approximately $5,100 to her parents on account of legal fees.  The husband disputed the existence of such a debt. 

2. While the wife’s evidence in relation to money owed to her parents on account of legal fees is somewhat inconsistent, I accept that she has borrowed funds from them to pay her lawyers.  Initially she said that she owed $32,000, which sum they had paid to various solicitors since the commencement of these proceedings.  She said that she repaid to them an amount of $26,904 from a redundancy package of $41,905 which she received in September 2006.  Later in her evidence she said that she “probably overpaid them” when she received her redundancy package.  She was clear that she has borrowed approximately $5,000 from her parents since September 2006.  It seemed plain that she has made no repayments to them from any source other than her redundancy money.  In these circumstances, I find that the wife has a debt to her parents on account of legal costs of $5,100.

3. I thus find that the parties have the following liabilities:

1.	L mortgage	$537,962
2.	Y mortgage	$203,662
3.	Wife’s share of C mortgage	$18,921
4.	Wife’s ESANDA car debt	$26,000
5.	Joint debt to the husband’s mother	$7,892
6.	Husband’s debt to his mother on account of legal fees	$60,000
7.	Wife’s debt to her parents in relation to legal fees	$5,100
8.	Wife’s tax debt	$1,000
TOTAL:	$860,537

FINANCIAL RESOURCES

1. There was no suggestion that either party has a financial resource.

THE NET POOL OF PROPERTY

1. The net pool of property, including superannuation, thus has a value of $557,940.  I feel compelled to make comment on the quantum of the parties’ legal fees, in the context of the net value of their assets.  Between them, the parties have paid and/or borrowed $107,293 to fund these proceedings.  I am appalled at this level of charging by the previous lawyers of the parties.  I do not include the solicitors and counsel who appeared at the trial before me, as they conducted the proceedings diligently and efficiently.  I can only speculate on the extent to which the previous legal representatives of the parties inflamed an already tense relationship between them.

THE CONTRIBUTIONS OF THE PARTIES

1. At the date of the marriage the wife held a one-third interest in the C property, of unknown value.  This interest was subject to a mortgage.  She also had savings of $6,657 and an AMP Superannuation benefit.  She had credit card liabilities of an unknown quantum.

2. At the commencement of the marriage the husband had minimal savings and 1995 Barina car.  He had a credit card debt, which he paid off within 6 months.  Clearly, the initial contributions of the wife exceeded those of the husband.

3. The wife spent a short period out of the paid workforce when O was born.  Her allegation that the husband was unemployed in the early stages of the marriage seems to be incorrect:  exhibit 8.  These documents show that he worked for a company called AF and a firm called AE in 2000 and earned $11,636 between 1 July 2000 and 29 October 2000.

4. The husband agreed that he was “between jobs” at the time of the marriage but maintained that he worked and earned income during most of the period of cohabitation.  I accept that both parties engaged in paid employment during their relationship.

5. It was common ground that the parties lived with the husband’s mother for 2 years from the date of the marriage.   There was a dispute as to whether they paid board and/or contributed to the household expenses during this period.  The wife alleged that they each paid to the husband’s mother an amount of $100 per week and made a contribution to the household bills.  The husband said that he paid $100 per week and met the cost of the telephone bill, as he used the internet for his work.  He maintained that the wife did not make her agreed contribution.  The husband’s mother said that her son usually paid his $100 per week but often the wife failed to do so, thus they agreed that the parties would pay for food and household supplies.

6. Whatever the truth of this matter, the parties obviously obtained a financial benefit through living with the husband’s mother for 2 years.  During this period they purchased the L property and serviced the Y mortgage.  As well, the wife conceded that the parties probably could not have purchased the L property without the use of the husband’s mother’s home as collateral security.

7. These 2 factors, in my view, amount to an indirect contribution on behalf of the husband.  As well, he contended and the wife did not deny that his mother purchased an air conditioner for the L property at a cost of $3,299.  This expenditure also amounts to an indirect contribution on behalf of the husband.

8. The wife’s parents cared for O from the time when he was approximately 3 months old.  Both parties were thus able to earn income and accumulate their assets.  I regard this childcare by the maternal grandparents as an indirect contribution on behalf of the wife.

9. When the husband’s mother was paid out in respect of her interest in the L property, the wife sold her car for $8,500.  Otherwise, the interest of the husband’s mother was acquired by way of joint borrowings and savings.

1. The husband maintained that his management of the L property saved the parties approximately $3,000 per annum and urged that this factor be regarded as contribution by him.  The wife maintained that H acted as managing agents, during the time when the husband’s mother held an interest in the property.  Whatever may have been the case, there was no evidence as to how the husband calculated this figure.

2. The wife accrued a redundancy benefit partly during the marriage.  She commenced work with M in July 2001 and was retrenched in September 2006, when she received $41,904.  This benefit thus accrued substantially, but not entirely, during the parties’ cohabitation. 

3. The wife used her redundancy payment substantially to meet her legal fees.  More accurately, she used this money to repay a debt which had accrued to her parents, who have paid her solicitors over the period since separation.  Ultimately, it was agreed that the wife’s paid legal costs amounted to $42,193.  In my view, it is most likely that these costs were paid from her redundancy money. 

4. During the parties’ cohabitation, the wife paid half of the C mortgage instalments.  On 30 June 2000, that is, some 5 months prior to the marriage, the mortgage payout figure was $100,962.  There was no evidence of the mortgage debt at the date of separation but the payout figure was approximately $63,335 on 1 July 2006 (exhibits 3 and 4).

5. This property generated no income for the benefit of the parties, during the period of the wife’s contribution to the mortgage instalments.  According to the wife, the husband visited the property only on four occasions during the marriage.  The result would seem to be that the wife regularly applied part of her income to build up equity in the C property for the benefit of herself and her parents.

6. The unchallenged evidence of the husband was that he and the wife contributed $3,583 and $2,000 per month respectively to their mortgage, after they acquired his mother’s interest in the L property.  Payments of rental were also applied to the mortgage repayments.

7. The wife conceded that she retained approximately $19,000 in savings when the parties separated.  In cross-examination she said that she was unable to quantify the amount of savings which she had accrued during the marriage, as she had opened this bank account well before the parties began to live together.  In her affidavit, however, she said that she had $6,656.77 in savings at the date of the marriage.  It seems to me to be likely that she referred to documents to obtain such a precise figure.  It would thus seem that the wife accrued savings of around $12,000 during the parties’ cohabitation and that she retained these funds for her sole benefit upon separation.

CONCLUSION AS TO CONTRIBUTION

1. I accept that the wife brought into the marriage assets of greater value than did the husband.  On the other hand, during the marriage she accrued a redundancy benefit and about $12,000 in savings, all of which she has retained for her own benefit.  Most of her redundancy benefit also accrued during the parties’ cohabitation.  At the same time, a substantial proportion of the husband’s superannuation benefit accrued during the marriage, as he commenced employment only months earlier.

2. The wife asserted that she was the primary carer of O prior to the parties’ separation.  The husband alleged that he played a significant role as homemaker and parent as well.  I am satisfied that each party cared for their son to the extent permitted by their respective work commitments.  As I have said, the wife’s parents also carried out a substantial childcare role.

3. Having regard to all of these matters, I reach the conclusion that there is a slight imbalance in favour of the wife in terms of contribution.  I would assess this differential at 5% of the value of the net pool of property.

SECTION 75(2) FACTORS

1. I have had regard to all of the factors set out in section 75(2).  I will refer only to those subsections which appear to me to be relevant to the present proceedings.

   section 75(2)(a):  the age and state of health of each of the parties;

2. The husband is 36 and the wife is 34 years of age.  They are both in good health.

   section 75(2)(b):  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   section 75(2)(m):  the terms of any order made or proposed to be made under Section  79 in relation to the property of the parties;

3. The husband is in stable, secure employment and earns $1,096 gross per week.  He has the opportunity to pursue freelance work in the IT field and intends to do so.  His wife, Ms M, currently earns $1,100 per week but she is expecting their child in March 2007. 

4. The wife was retrenched by M in September 2006 and has a contract with the same organisation, which is due to expire in May 2007.  Her current income is $2,716 gross per week but, obviously, she has no security of employment beyond the duration of the contract.  Her work history, however, suggests to me that she will quickly find appropriate and well paid employment.

section 75(2)(c): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. Pursuant to the parenting orders which I am asked to make by consent, O will spend more time with his mother than will be the case with his father.  Nonetheless, the father will play a significant role in the care of O and he will pay child support as assessed from time to time.

   section 75(2)(f): subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party;

1. Each party has a superannuation benefit, being $30,908 in the case of the husband and $48,050 in the case of the wife.  They are both relatively young and will be unable to access these funds for many years.

CONCLUSION AS TO SECTION 75(2) FACTORS

1. The husband sought an adjustment of 10% in his favour.  In the main, his argument relied upon the disparity in the incomes of the parties; the fact that the wife will have a larger asset base and on his responsibility to support the child to be born to his wife and himself in March 2007.  He also drew attention to the fact that selling costs will be distributed equitably between the parties, if there are orders for the sale of both the Y and L properties.

2. The wife, too, sought an adjustment of 10% in her favour.  She appeared to rely principally on the uncertainty of her income after May 2007 and her greater responsibility to care for O.

3. Principally because of the fact that the wife will have the care of O for a greater proportion of time, I am of the view that a small adjustment in her favour is warranted.  This factor is offset, however, by the husband’s lower capacity to earn income and his responsibility to support his new baby.  I would assess, and I find, that the appropriate adjustment is 5% in favour of the wife.

RESULT

1. I thus find that the net pool of property should be divided as to 60% to the wife and 40% to the husband.  The net pool of superannuation and non-superannuation assets is valued at $557,940.  60% and 40% thereof amount to $334,764 and $223,176 respectively. 

2. If the wife takes the L property and the Y investment is sold, the following distribution of assets and liabilities would result:

The wife
Assets
1.	L property	$685,000
2.	Interest in C property	$133,300
3.	Savings	$2,000
4.	Mazda car	$26,000
5.	Furniture	$5,000
6.	The wife’s service business	$5,000
7.	Paid legal costs	$42,193
8.	Superannuation	$48,050
$946,543
Liabilities
1.	L mortgage	537,962
2.	Share of C mortgage	$18,921
3.	Esanda car debt	$26,000
4.	50% debt to the husband’s mother	$3,946
5.	Debt to parents for legal fees	$5,100
6.	Tax debt	$1,000
$592,929
$353,614

which exceeds her entitlement of 60% of the net pool by $18,850.

The husband
Assets
1.	Savings	$2,358
2.	Barina car	$2,500
3.	Furniture	$300
4.	Paid legal costs	$58,368
5.	Joint Westpac account	$2,500
6.	Superannuation	$30,908
$96,934
Liabilities
1.	50% debt to the husband’s mother	$3,946
2.	Debt to the husband’s mother for legal costs	$60,000
$63,946
$32,988

which falls $190,188 short of his entitlement of 40% of the net pool.

1. The net equity in the Y property is only $171,338, which means that the wife will be required to pay an additional sum to the husband, if she is to retain the L property.  That sum would be at least $18,850.  It seems appropriate that this amount be increased to take account of the costs of sale of the Y property.  Otherwise, the husband would be left with sole liability for these costs and expenses. In my view, that result would constitute an injustice to him.

2. There was no evidence as to the costs of sale of the Y property.  I am thus left in the position either of hazarding a guess as to an appropriate amount or making an order which will take effect at the time of the sale of this property.  I prefer the latter course.  The wife should contribute 50% of the costs of the sale of the Y property.  The transfer to the wife of the interest of the husband in the L property will be simultaneous with and contingent upon such payment by her.

3. I have considered the outcome of the orders which I propose to make.  The wife will have a home, albeit that the property will be quite heavily encumbered.  The husband will receive cash of around $190,000, which would assist him in the purchase of a home if he wishes to take that course.  Each of the parties will retain a relatively modest superannuation benefit.  I regard this result as just and equitable in all of the circumstances.

ORDERS

1. I make the following orders:

PARENTING ORDERS
By consent:

1. That the child, O born in April 2004 (“O”) live with the mother at all times subject to order 2 below.

2. That O live with the father at the following times:

   2.1For a period of three (3) months following the date of these orders:

   (a)each Wednesday from the conclusion of preschool/daycare to 7:30pm;  and

   (b)each alternate weekend from the conclusion of preschool/daycare on Friday to 5:00pm Sunday commencing Friday 2 February 2007.

   2.2      Thereafter:

   (a)each alternate weekend from the conclusion of preschool/daycare Friday to the commencement of preschool/daycare on Monday;

   (b)each Tuesday from the conclusion of preschool/daycare to the commencement of preschool/daycare on Wednesday.

3. For the purposes of O passing between the parties pursuant to these orders, on occasions when the father is unable to return him from preschool/daycare, the parties are to meet at the commencement and conclusion of such periods at the home of the father.

4. In the event that the father is unable to arrange for collection of O from preschool/daycare he is to notify the mother as soon as practicable so as to allow her to collect him and the father shall commence his period of time with O by collecting him from the home of the mother.

5. That O live with each party during the NSW school holiday periods by agreement and failing agreement he shall live with the father as follows:

   5.1from 5:00pm 23 April to 5:00pm 29 April 2007;

   5.2from 5:00pm 20 July to 9:00am 28 July 2007

   5.3from 9:00am 29 October to 9:00am 5 November 2007;

   5.4for the first half of each Easter, June/July and September/October school holiday period in the year 2009 and each alternate year thereafter and the second half of each school holiday period in the year 2008 and each alternate year thereafter;

   5.5during the Christmas school holiday period on a week-about basis commencing the first week of the Christmas school holiday period in 2007 and each alternate year thereafter and commencing the second week of the Christmas school holiday period in 2008 and each alternate year thereafter;

   5.6regardless of where O shall live for the purposes of order 5.5, he shall live with the father from 9:00am on 24 December until 9:00am on 26 December in the year 2007 and each alternate year thereafter;

   5.7regardless of where O shall live for the purposes of order 5.5 he shall live with the mother from 9:00am on 24 December until 9:00am on 26 December in the year 2008 and each alternate year thereafter.

6. For the purpose of implementing these orders the school holiday period shall be deemed to commence at the conclusion of the last day of school and the school holiday period shall conclude on the first day of school.

7. That the time which O is to spend with the father pursuant to order 2 above shall be suspended during school holiday periods commencing at the beginning of the 2007 Christmas school holiday period.

NOTATION:             It is noted that the father will not spend time with O on the weekend commencing 26 October 2007 and that his weekend time shall recommence at 5:00pm on 9 November 2007.

1. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY ORDERS

1. That the parties do all things and execute all documents required to effect forthwith the sale of the property situate at and known as Y in the State of Queensland, for the best price reasonably obtainable, and to distribute the proceeds of such sale as follows:

   1.in discharge of the mortgage on the title to the property

   2.in payment of agent’s commission and expenses

   3.in payment of legal costs incidental to the sale

   4.in payment of the balance then remaining to the husband.

2. 10.1     That, simultaneously with payment by the wife to the husband of an amount equal to:

   1.$18,850 plus

   2.50% of the total costs of  sale of the Y property including but not limited to agent’s commission and expenses, auction expenses, legal costs of an incidental to the sale and discharge of mortgage and bank fees, both parties shall do all things and execute all documents required to effect the transfer to the wife of the whole of the husband’s right title to and interest in the property situate at and known as L in the State of New South Wales.

   10.2That the wife indemnify the husband and keep him indemnified against all liabilities arising from the mortgage registered on the title to the L property.

3. That both parties forthwith do all things and execute all documents required to effect the transfer to the wife of the whole of the husband’s interest in the joint Westpac Bank account.

4. That each of the parties pay to the husband’s mother a sum of $3,946, with such payment to be made within 3 months of the date of these orders.

5. That, otherwise, each of the parties is declared to be solely entitled to all items of property and superannuation presently in his and her respective control.

I certify that these  pages are a true copy
of the reasons for judgment herein of
 her Honour Justice Stevenson.
 
    Associate

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