HAYDOCK and HAYDOCK

[2017] FCWA 71

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HAYDOCK and HAYDOCK [2017] FCWA 71

CORAM: WALTERS J

HEARD: 15, 16 & 20 - 23 JANUARY 2015 AND 19 & 20 JULY 2016

DELIVERED : 29 MAY 2017

FILE NO/S: PTW 722 of 2012

BETWEEN: MR HAYDOCK

Applicant

AND

MS HAYDOCK
Respondent

Catchwords:

FAMILY LAW – PARENTING ISSUES – Where both parties assert they were children's' primary carer – Where husband unreasonably critical of wife – Where week about arrangement proposed by husband not in children's best interests – Orders made for children to live with wife and spend substantial and significant time with husband

FAMILY LAW – PROPERTY SETTLEMENT – Alteration of property interests – Where husband failed to make full and frank disclosure – Where husband has consistently failed to comply with orders – Case turns on its own facts

FAMILY LAW – COSTS – Where both parties sought orders for costs – where husband conduct as a litigant was reprehensible – Husband ordered to pay wife's costs in a specific amount

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Ms Wadsworth

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Bannerman Solicitors

Case(s) referred to in judgment(s):

B & B [2006] FamCA 883
Best & Best (1993) FLC 92-418
Bevan & Bevan [2013] FamCAFC 116
Bonacci & Bonacci [2012] FamCAFC 15
Champness & Hanson [2009] FamCAFC 96
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-596
Collu & Rinaldo [2010] FamCAFC 53
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Hawkins & Roe (2012) 47 Fam LR 526
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003]
FamCA 395
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
Jurchenko & Foster [2014] FamCAFC 127
King v Yurisich (No 2) [2007] FCAFC 51
Latoudis v Casey (1990) 170 CLR 534
M & S (2007) FLC 93-313
Maker & Jets (No 3) [2012] FMCAfam 1104
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
McMahon & McMahon (1995) FLC 92-606
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-19
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Russell v Russell (1999) FLC 92-877
Saxena & Saxena (2006) FLC 93-268
Sayer & Radcliffe (2012) 48 Fam LR 298
Schwarz & Schwarz (1979) 5 Fam LR 396
Scott & Danton [2014] FamCAFC 203
Smith & Smith (1994) 18 Fam LR 55
Stanford v Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
Waters & Jurek (1995) FLC 92-635

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1Before the Court are the parties' competing applications for final orders in relation to their children and property.

Abbreviations and other terms used

2In these Reasons, and unless otherwise indicated:

a) all statements of fact comprise findings of fact;

b)I have referred to [Ms Haydock] and [Mr Haydock] as "the wife" and "the husband" (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;

c)although the law now refers to a child "spending time" with a person with whom the child does not live, I have used the obsolete term "contact" from time to time – because it is both more convenient and less grammatically challenging to do so;

d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm"); and

e)I have referred to the Family Law Act 1975 (Cth) as the "FLA".

Background

3This matter has been before the Court for over five years. Unfortunately, it has had a troubled and complex pathway to final determination. The trouble and complexity are entirely disproportionate to the core matters in issue. There are many reasons for this state of affairs, and I will touch upon some of these during the course of these Reasons – to the extent that it may be necessary for me to do so.

4The parties are in dispute about some aspects of the history of their relationship but, in my view, little turns on those matters. They commenced cohabitation in either 2003 or 2004, married [in] 2006 and separated at the end of 2011 or the beginning of 2012.

5There are three children of the marriage: [Child A], who was born [in] 2005, [Child B], who was born [in] 2006 and [Child C], who was born [in] 2008. In the three-year period between separation and when parenting orders were made on 23 January 2015, the children were in the primary care of the wife and spent time with the husband on alternate weekends and during school holidays, subject to the husband's work commitments.

6In the children's proceedings, the parties remained in conflict about issues of day-to-day and long-term care, with whom the children should reside from time to time and in relation to some other specific issues.

7On matters of finance, the parties held interests in a number of properties at the date of separation. These properties were subject to borrowings, rental agreements and future subdivision and development prospects. Much of the protracted litigation in this matter has been caused by the difficulties surrounding the ongoing occupation and management of these properties, the servicing of loans, the progress of the redevelopment and the realisation of properties and discharge of debt. The legal process has been aggravated by disputes about the adequacy of disclosure, failure to comply with procedural orders and, on the husband's part, failure to attend some key court events. The husband has been self-represented for much of the litigation, and there can be no doubt that that has compounded the difficulties for the parties and the Court.

8In the property proceedings, the task of the Court (in very broad terms) is to identify the property of the parties available for distribution between them and – subject always to justice and equity – determine whether and, if so, how, the parties' interests in that property should be altered.

Procedural History

9The final hearing in relation to the parties competing applications commenced on 15 January 2015, and continued for a total of six days until 23 January 2015, at which time it was adjourned on a part-heard basis. The hearing resumed in 2016, and continued for two days (on 19 and 20 July).

10All evidence and arguments in relation to the children's issues were presented during the first stage of the trial. The extended adjournment became necessary because of the uncertain state of, and unsatisfactory nature of the evidence surrounding, the parties' finances.

11At the conclusion of the first stage of the trial, I made final orders in relation to parenting matters. I also made interim property orders designed to crystalise the parties' property interests and financial obligations in ways which would enable the Court to deal justly and equitably – in due course – with the issue of property settlement.

12At the time the final parenting orders were made, I indicated that I would publish my reasons at a later date. Thus, I intend to address the parenting issues first and set out my reasons for my earlier orders. I will then deal with the competing property claims.

Parenting Orders of 23 January 2015

13The final parenting orders made on 23 January 2015 ("January 2015 orders") speak for themselves. I shall not reproduce them in these Reasons.

The Law (Parenting issues)

14The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.

15Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the FLA.

16The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.

17Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child": s 64B(3). Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health.

18If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision: s 65DAC. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent: s 65DAE.

19As has long been the case, the child's best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

20The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are:

… to ensure that the best interests of children are met by:

•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.

21The principles underlying these objects are set out in s 60B(2). They are:

... that (except when it is or would be contrary to a child's best interests):

•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

•parents should agree about the future parenting of their children; and

•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

22Given that all the expressed objects of Pt VII are directed towards ensuring that a child's best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".

23The primary considerations are set out in s 60CC(2). They are:

•the benefit to the child of having a meaningful relationship with both of his or her parents; and

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

24The additional considerations are set out in s 60CC(3). They include:

a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;

b)the nature of the child's relationship with each of his or her parents and other relevant people (including grandparents and other relatives);

c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;

d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;

e)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);

f)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);

g)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);

h)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);

i)in the case of an Aboriginal or Torres Strait Islander child, the child's right to enjoy his or her indigenous culture;

j)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;

k)any relevant family violence, or family violence order;

l)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and

m)any other fact or circumstance that the court considers relevant.

25The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party's "track record" as a parent.

26Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson [2009] FamCAFC 96 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):

…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.

27In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents": see McCall & Clark (2009) FLC 93-405 at [119] ("McCall"). The Full Court described this as "the prospective approach". Depending upon the circumstances of the particular case, a slightly different approach (which the Court described as "the present relationship approach") may also be relevant. The present relationship approach suggests that a court should consider the benefit to a child of having a meaningful relationship with his/her parents by examining the nature of the relationship as it exists at the date of the hearing and proceeding to make orders which reflect its findings in that regard: see McCall at [117] to [122]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.

28Notwithstanding what was described in McCall as the "preferred" approach, the Court is not obliged to ensure that a child maintains a meaningful relationship with both parents; its obligation is to make orders most likely to promote the child's best interests. In seeking to discharge that broader obligation, the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) at [103]. As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:

… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.

29What then is a "meaningful relationship"? In broad terms, it is a relationship which is "important, significant and valuable to the child". In McCall at [121], the Full Court "accepted as appropriate" the following comment by Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26]:

… [When] considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …

30It should be borne in mind, as well, that "what the legislation aspires to promote is a meaningful relationship, not an optimal relationship": see Godfrey & Sanders [2007] FamCA 102 and Moose & Moose (2008) FLC 93-375 at [70].

31In Goode (supra), the Full Court summarised the above process at [10]:

… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.

32Despite the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92‑667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the Court may make such parenting order as it thinks proper: s 65D(1).

33When making a parenting order, the Court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility: s 61DA. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.

34The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.

35In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the Court that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility: s 61DA(4).

36Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the Court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the Court must consider whether it should make an order to that effect: s 65DAA(1). If the Court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).

37In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...

Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)

38The same principles apply to s 65DAA(2) where its pre-conditions are satisfied: see, for example, Hamish & Brighton [2014] FamCAFC 242.

39The sequence in which the Court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:

… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.

40The Full Court in Taylor & Barker (supra) added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".

41The Full Court in Taylor & Barker (supra) added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to 'the matters which the legislation requires must be considered'.

42In Mazorski & Albright (supra), Brown J dealt with the "additional considerations" (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (supra), Boland J, with whom May J agreed, approved of such an approach, saying that, in certain cases, it may help to focus the Court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53 at [335].

43Having summarised the effect of Pt VII in Goode at [65], the Full Court then described, at [82], the "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why a similar pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at [36]; see also Sayer & Radcliffe (2012) 48 Fam LR 298, citing Starr & Duggan [2009] FamCAFC 115.

44The relevant steps, as modified for a final hearing and taking into account the High Court's decision in MRR v GR (supra), are as follows:

a)Identify the parties' competing proposals.

b)Identify the issues in dispute in the proceedings.

c)Make relevant findings in relation to the facts.

d)Consider the relevant s 60CC factors and, if possible, make findings about them.

e)Decide whether the presumption in s 61DA applies.

f)If the s 61DA presumption applies, then consider whether it has been rebutted because its application would not be in the best interests of the child.

g)If the s 61DA presumption applies, and has not been rebutted, then consider both of the following questions:

i)Is it in the best interests of the child to spend equal time with each parent?

ii)Is it reasonably practicable for the child to spend equal time with each parent?

h)If both of the above questions are answered in the affirmative, then consider making an order for equal time (although the court is not obliged to make such an order).

i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider the two following questions:

i)Is it in the best interest of the child to spend substantial and significant time with the other parent?

ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?

j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent (but, again, the Court is not obliged to make such an order).

k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the Court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the default position under the FLA. Instead, the Court must concern itself with the reality of the situation of the parent and the child; it must make a practical assessment as to whether equal time, or, alternatively, substantial and significant time, is both feasible and in the child's best interests.

l)If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are 'at large and to be determined in accordance with the child's best interests' (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].

45Throughout the entire process, the Court must bear in mind that the child's best interests "remain the overriding consideration", and that those interests are to be "ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC": See Goode at [65.11] and [65.9].

46Notwithstanding the dicta discussed above, the question of an appropriate "legislative pathway" to provide guidance through the intricacies of Pt VII has continued to trouble judges at first instance. In Cox & Pedrana (2013) FLC 93-537, however, the Full Court said at [31]:

Whilst reference to a "legislative pathway" is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.

47I propose to take into account the relevant considerations to the degree they are relevant to the facts of this case.

The husband's Proposals

48The husband proposed that the parties should have equal shared parental responsibility, and that the children should spend equal time with each parent on a week about basis from Friday to Friday.

The wife's proposals

49The wife proposed a continuation of the equal shared parental responsibility order. She also generally supported a continuation of the existing contact arrangements, pursuant to which the children reside principally in her care and spend time with the husband on alternate weekends and during school holiday periods.

The parties' reasons for their proposals

50In his closing address, the husband said that the reasons he sought such an outcome were as follows:

a)during the relationship, he was the primary carer of the children;

b)he is very capable of caring for the children (and, indeed, is more capable than the wife in that regard);

c)he believes such a regime would work best for the children and avoid the confusion of the current regime; and

d)he had spoken to the children and they had indicated a preference for such an arrangement.

51It was submitted on behalf of the wife that:

a)she had, at all times, been the primary carer of the children;

b)the regime she proposed had been in place for the three years since separation and had worked well for these children;

c)the husband did not have the same capacity to meet the children's needs, given his work commitments and his history in that regard;

d)the husband's attitude towards the wife, personally and as a parent, was negative and controlling, and this attitude would be more likely to have an adverse impact upon the children should the husband's role in the children's lives be substantially increased; and

e)the children had positive relationships with each of their parents under the wife's primary care, but that that could be jeopardised if there were changes to the current arrangements.

52The essence of the wife's submissions was that the current arrangements had worked well for the children and there were no identifiable advantages to the children in implementing the changes sought by the husband. Indeed, there were risks associated with any such change. The taking of such risks was not in the children's best interests.

The husband was unrepresented

53I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:

a)procedural fairness was afforded to both parties;

b)the "mechanics" of the trial, and the right of parties to cross-examine witnesses, was explained to the husband;

c)other relevant procedures were explained to the husband as they arose;

d)I explained to the the husband that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible;

e)where appropriate, I attempted to clarify the substance of the husband's submissions; and

f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.

54In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".

55In the present case, the husband participated in the process fully and fretfully. I have no doubt that – in spite of his occasional protestations – he fully understood "what was going on" at all times. In that regard, I am more than satisfied that, although he suggested he had some difficulty with aspects of the trial process (and did not always conduct himself in a courteous and restrained fashion), he was not impeded unfairly or unduly in the presentation of his case. I have very consciously made allowance for the challenges confronting the husband as a self-represented litigant – albeit a querulous and comparatively combative one. At the same time, it remains incumbent upon me to take proper account of the evidence as it was presented to me, and to record my impressions of the parties in the context of the proceedings before the Court.

56I find that the husband's occasional assertions to the effect that he was guileless, out of his depth, and somewhat naive in relation to financial matters (and in relation to his financial obligations and his responsibilities as a litigant) were disingenuous. They were used by the husband as a tactic: a deliberate and manipulative ruse for the purpose of attempting to mislead the Court into overlooking, or deflecting its focus away from, his persistent refusal to meet his obligations and responsibilities as a litigant, and to comply willingly and in a timely fashion with relevant orders, directions and Rules.

The credibility and impressions of the parties

57It has been said that a court should exercise restraint when expressing views about parties in parenting cases, because the parties will continue to have a relationship with each other – as parents – well after the trial is over. Similarly, the parties will have an ongoing relationship with their children. But the Court must also deal with the realities of the particular case before it, and the character and personality of the parents can be very important (and sometimes decisive) in parenting cases: see, for example, Schwarz & Schwarz (1979) 5 Fam LR 396 at 399 and Smith & Smith (1994) 18 Fam LR 55 at 64.

58This was a most unusual case. I have formed the view that the wife's character and personality cannot fairly be criticised. She is a sensible, caring and responsible parent. I have no doubt that she can be relied upon to protect the children's best interests. However, it was the husband – through his character and personality, and his behaviour and attitudes – who dominated the trial process. To paraphrase a comment I made regarding a similar litigant in a case run before me some 15 years ago:

Exhibit A in the case was the husband himself

59At the end of the day, I simply observe that the husband did not do himself any favours in the way he conducted himself before the Court, or in relation to aspects of his conduct prior to, and subsequent to, separation. I am prepared to accept that the husband is concerned for his children, loves them dearly and wants to play a role in their lives and upbringing, but his attitude to their mother leaves much to be desired. He is more than capable of being controlling and belittling of the wife, as suggested by her counsel. In relation to the parties' respective involvement in the day-to-day care of the children – and, in particular, in relation to the wife's alleged failings – I find that the husband is either being dishonest, deliberately exaggerating his account of relevant events or being highly selective in his recall. When all is said and done, it does not matter which of those findings is most apt: the husband is seriously lacking in insight in relation to his own conduct and his attitude towards the wife.

60Despite protesting that he has a good ongoing relationship with the wife and would be able to work positively with her in any shared care arrangement, the husband was almost entirely dismissive of her qualities as a person and as a mother. He persisted in using the trial process to further his relentless criticisms of the wife, regardless of warnings that such conduct was not helping his cause. I accept that a contested hearing in relation to children's matters can necessitate some exploration of past conduct, including suggested shortcomings in parenting capabilities, but the husband's efforts in that regard were quite extreme, and clearly disproportionate to realities of the family history. Similarly, his protests of concern for his children were at odds with his conduct towards the wife (and, directly or indirectly, the children) – for example, in relation to ongoing financial support and the provision of suitable accommodation for the wife and children at the time of separation and thereafter.

61Additionally, the husband's attitude and conduct in the property proceedings have a direct bearing upon my assessment of the husband as a person and as a witness. In that respect, the husband's conduct as a witness and as a litigant seriously undermined his credibility. He was frequently evasive, non-responsive and unreliable. Generally, he appeared to be prepared to do and say whatever he perceived he needed to do or say in order to achieve his ends. Further, he was self-centred (or self-absorbed). This form of behaviour reflected poorly upon him personally and served to reduce the weight I could place upon his testimony on all issues.

62The wife, on the other hand, was much more balanced and persuasive in her account of matters relevant to the Court's deliberations. She readily conceded that the husband was a good father and that he loved his children and was loved by them. She acknowledged that he was a hands-on father and that he carried his fair share of the responsibilities for the children, particularly in terms of cooking and school pick-ups. She was also quite open about her need for support from the husband from time to time when the care of the young children became particularly demanding. She acknowledged enjoying further comfort and support from her parents and retained friendships. She also accepted that there were occasions when she availed herself of the opportunity for sport or exercise, or a rare social outing with friends. However, the wife denied that the husband's complaints in these areas were justified. She said that she always ensured proper arrangements were made for the children – usually with the husband caring for the children for any such short periods of outside engagement.

63The wife was adamant that she has been the primary carer for the children at all times. By agreement between the parties, she remained as a full-time parent; the husband was the full-time breadwinner. She said the husband's employment involved long hours and shift work. There were times when he would spend extended periods away from home doing fly-in fly-out assignments. He was also committed to his [not-for-profit] service, which required him to attend on occasions during the week, and, on other occasions, for more extended periods. I would add that, in his property application, the husband emphasised his efforts regarding the upkeep, maintenance and improvement of the rental properties. In my opinion, there can be no doubt that any such efforts placed further demands upon his limited available time.

64I accept that there were times when the husband was unemployed for extended periods after redundancies and that, during such times, he was in a position to make substantially greater contributions to the running of the household. Suffice it to say, however, that, on the totality of the evidence, I have no hesitation in accepting the wife's account of the parties' contributions in relation to the care and supervision of the children during the relationship. In particular, I find that she was the primary and predominant carer for the children during those times.

65That scenario has been strongly reinforced in the three-year period since separation. The children have spent the vast majority of this time in their mother's full-time care.

66I find that the wife has been the primary and predominant carer for the children throughout their lives. I also find that she has discharged that role properly and effectively, and provided the children with a good standard of care. They are generally healthy, happy and well-adjusted children. Importantly, they have a very good relationship with each of their parents. Obviously, the husband's relationship with his children has much to do with the contributions he has made to their care and welfare over the years, but it also reflects the wife's sensitive parenting and the value she places on the importance of the husband's relationship with them.

Section 60CC factors

67I turn now to consider the s 60CC factors.

68Before proceeding further, however, I remind myself that I must regard the children's best interests as the paramount consideration in this case. It is for the purpose of determining which proposal is in the children's best interests that I must consider the matters set out in s 60CC.

69As foreshadowed above, I propose to deal with what are described as the "additional" considerations before dealing with the "primary" considerations. The headings I have used are simply a shorthand way of referring to each relevant consideration in s 60CC.

Children's views

70At the time of the final hearing on parenting issues, the children were relatively young, Child A was 10, Child B was 8 and Child C was just 6. The children were not interviewed and were not separately represented. There was no expert or independent evidence relating to their views. The husband's suggestion in his closing address that the children expressed contentment with his preference for equal time was not a matter addressed during the hearing; such statements are not matters to which I can have any regard in the absence of relevant evidence.

Nature of the relationship

71I am satisfied that the children have healthy, loving and close relations with each of their parents.

72I am also satisfied that the children's primary attachment is to the wife, given her long history as their primary caregiver. I find that she is the parent best equipped to meet the children's ongoing needs for nurturing and emotional support. She has demonstrated that as evidenced by the children's current presentation and by her much more conciliatory attitude towards the children's father.

73After their parents, the next most important relationships in the children's lives would appear to be with the maternal grandparents. They have played an important and supportive role in the children's lives both before and after separation. They have been actively involved on a regular basis in supporting their daughter with the care of the children and have shown a great commitment to the children's advancement by meeting their not insignificant private school fees.

Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the children and to have contact with the children

74During the relationship, each of the parties participated in making decisions about long-term issues relating to the children. On the important issue of education, however, I accept that it was the wife who took the lead when there were issues in the local school. She was instrumental in the decisions which resulted in the children's enrolment [at a Perth Private Primary School], and in securing her parents' agreement to fund the associated costs. These decisions appear to have served these children well.

Extent to which each parent has fulfilled obligations to maintain the children

75The wife has committed herself to the care and upbringing of the children before and after separation. She provides a good standard of care for them and has done so through some quite difficult personal and financial times. Importantly, it is clear that the children have benefited from her efforts and progressed well in her primary care.

76The husband loves the children and provides well for them when they are in his care – although his attention to some of the daily detail may waver from time to time. The evidence establishes, however, that the husband has been inconsistent in meeting his financial obligations to the wife and children through the medium of child support. In particular, the husband has demonstrated an insensitive and uncaring attitude in relation to the provision of suitable accommodation for the wife and children after separation. Whilst he has remained living comfortably in the most superior of the parties' four properties, he has (putting it as delicately as possible) been content to see the children's accommodation compromised. Moreover, I am satisfied that he was deliberately obstructive when the wife was attempting to secure more suitable accommodation for the children in one of the parties' other properties. Although I accept that the husband has, at times, faced difficulties with the change in the parties' financial fortunes after separation, I am troubled by his continued indifference to accommodation needs of the wife and the children. I am also troubled by his unsatisfactory history of child support payments. Like the wife, I have concerns about the husband's willingness to remain diligent in the meeting of those obligations in the future. While it is in the best interests of all concerned for the husband to exercise his earning capacity to a proper extent (after making allowances for his changed parenting obligations), I am not satisfied he has done so in the past or that he will do so in the future – particularly if he perceives that the wife will be an indirect beneficiary of any such endeavours. Regrettably, he seems to have formed the view that it is primarily the wife's responsibility to support the children; he has difficulty accepting that his obligation to maintain them is no less significant than that of the wife.

Effect of changes in the children's circumstances

77In my view, this is one of the more compelling aspects of the case before me. Prior to separation, the children were primarily cared for by the wife, although the husband assisted when he was not at work. The children were still quite young and dependant at the time of separation. In the three years since separation, they have continued to be primarily cared for by their mother. The wife has complied with her obligations in terms of the time the children spend with their father and, just as importantly, she has properly fostered and supported the children's relationship with him.

78The regime in place since separation has served these children well. They are generally happy, healthy, well-adjusted children. I accept the wife's evidence to the effect that the children become unsettled and noticeably more dependant and clingy in the days following contact with the husband (in particular, after extended contact with him). Not surprisingly, such reactions are more noticeable in Child C. He has been observed by the wife to appear more anxious, which has sometimes manifested itself in some disturbed behaviour and bed-wetting.

79My concern is that, whilst a change of the current arrangements to an equal time regime may not have a significant impact upon the children (given their underlying good relationship with their father), it is likely that the issues for the children when separated from their mother (as identified by the wife) will become more pronounced.

80In my opinion, the children's relationship with their mother is likely to suffer if they are required, at this stage, to spend anything like equal time with their father. Further, if the husband is unable to manage any traits of negativity towards the wife in front of the children, this may ultimately represent a threat to the health of the children's relationship with one or even both of their parents as time progresses. His inability or refusal to acknowledge this negativity suggests that, should the children begin to spend close to equal time with him, he will continue in the same manner.

81In all the circumstances, I am not satisfied that the suggested advantages of the change to the current arrangements proposed by the husband outweigh the real risks to the children's psychological and emotional well-being associated with such a change. Put simply, the current arrangements are working well from the children's point of view and the evidence does not suggest that there are any logical or principled, let alone compelling, reasons to change those arrangements.

Practical difficulties and expense associated with contact

82This does not appear to be a relevant consideration.

Capacity to provide for the children's needs

83I am satisfied that the wife has the capacity to provide for the physical, emotional and intellectual needs of all three children.

84I am satisfied that the husband has the capacity to provide for the physical and intellectual needs of the children. I am less satisfied that he has the capacity to provide for their psychological and emotional needs – at least in the short to medium term. In my opinion, it would be of assistance to the husband to seek professional assistance regarding his attitude and behaviour towards the wife, with a view to helping him understand the impact of that attitude and behaviour on the children. The evidence reveals that, since separation, the husband has found it difficult to maintain his focus on the children's best interests. I am satisfied that he has given his own needs priority over the emotional needs of the children. His determination to pursue his agenda has caused him to lose sight of the best interests of his children. Relevantly, he seemed unconcerned (or insufficiently concerned) about how his attitude in that regard might negatively impact upon the physical and emotional welfare of the children, and upon the person charged with their primary care.

85In summary, I am satisfied that the wife is better able to provide for the children's emotional needs than the husband. She has a demonstrated capacity to positively foster the relationship between the children and their father, and she shows a greater capacity to understand how her behaviour could have an adverse impact on them. Although the husband cares for the children, his irritability, frustration and hostile attitude towards the wife clearly suggest that he is less conscious of the children's emotional needs (one of which comprises the ability to have a positive relationship with their mother).

Maturity, lifestyle and background of the children and the parties

86The children were still relatively young at the time of the hearing. Although they obviously endured some of the consequences of the strained financial arrangements between the parties, I am satisfied that they have enjoyed a comfortable lifestyle – assisted by the maternal grandparent's support of their private education. It is likely that little will change in relation to such matters, regardless of the Court's determination on the future living arrangements of the children.

87In my opinion, the wife is significantly more mature than the husband – not least because of her capacity to behave in a child-focused manner and willingness to learn and adapt. The husband is unwilling or unable to adapt or change, and appears incapable of recognising or acknowledging his own mistakes.

Aboriginal or Torres Strait Islander children

88This is not a relevant consideration.

Attitude to the children and to responsibilities of parenthood

89I am satisfied that the wife has demonstrated a positive and constructive attitude to the children, and to the responsibilities of parenthood. Among other things, she has done her best to provide the children with a stable and nurturing environment, and she has done this in the face of the husband's behaviour towards her.

90I am less satisfied that the husband has demonstrated such an attitude. As explained elsewhere in these Reasons, I am of the view that the wife's attitude to the children and to the responsibilities and duties of parenthood has, generally speaking, been significantly more mature and child‑focused than the husband's. In a sense, that is not surprising given that the wife has always been the children's primary caregiver.

91I do not propose to repeat matters discussed elsewhere in these Reasons. Suffice to say that I am not satisfied that the husband has displayed a positive and constructive attitude to the responsibilities and duties of parenthood. It is not unfair to describe his attitude in relation to some of these matters as negative and combative – at least where the wife is concerned.

Family violence

92Fortunately, this is not pursued as a particularly significant consideration in the conduct of this case. I have raised concerns, however, about the husband's attitude to and behaviour towards the wife. He has refused to cooperate with her, and has insulted and belittled her.

93I have not overlooked the fact that a VRO was obtained after separation. The VRO was resolved on the basis of mutual undertakings.

94Nor have I overlooked the husband's evidence to the effect that he recorded the wife making threats to harm the children when she was under stress. I accept that the wife said those things, but I am entirely satisfied that she has never had any intention of deliberately harming the children. I find that such expressions were intended to elicit some understanding and support from the husband during what the wife regarded as particularly difficult and stressful times.

95Subject to my concerns stated earlier in relation to the husband's negativity towards the wife and its possible impact upon the children, I was satisfied at the time of my orders that this issue did not represent a significant ongoing consideration for the Court.

Orders least likely to lead to the institution of further proceedings

96Overall, I do not regard this factor as being of any more than marginal relevance. There remains the possibility of further disputes, and perhaps litigation, whichever proposal is adopted.

Any other fact or circumstance that the Court thinks is relevant

97There are no other facts or circumstances that I consider relevant. I have already indicated that the husband's character and personality dominated much of the proceedings. I do not accept for one moment that the husband genuinely believes that many of his actions after separation have been in the best interests of the children – but if he does, the Court is entitled to have grave concerns about his capacity to modify his behaviour in the future.

98As foreshadowed above, and having dealt with those considerations pursuant to s 60CC(3) that I consider relevant, I shall now revisit the considerations referred to in s 60CC(2). Once again, I remind myself that I must regard the children’s best interests as the paramount consideration in these proceedings – and that it is for the purpose of determining which proposals are in their best interests that I must consider these matters.

Meaningful relationship

99Clearly, it is in the children's best interests to have a meaningful relationship with each of their parents. That says nothing, of course, about the amount of time that the children should spend with each parent.

100I am satisfied that the children have a close and loving relationship with both the wife and the husband. For the children, these relationships are meaningful in every sense. In my opinion, they will continue to have such a relationship irrespective of any orders the Court may make.

Protection from harm

101I have earlier commented on the evidence relating to the wife's statements to the husband about harming the children. I reject any suggestion that such statements comprise or ever comprised a real risk from the children's point of view.

102I have discussed the risk of the husband exposing or continuing to expose the children to his negative attitude towards the wife. This, in turn, amounts to a risk of the husband setting the children against the wife and, in the process, distancing them from her. Aside from those very real risks (which have affected my deliberations as set out earlier in these Reasons), the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is not a significant consideration in the circumstances of this case.

Parental responsibility

103As indicated above, the Court must apply a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility. Such a presumption, although clearly important, says nothing about the amount of time the child should spend with each parent.

104The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In the current proceedings, such circumstances do not apply, and it was not in dispute that the presumption relating to equal shared parental responsibility adheres. Indeed, both parties agreed that there should be an order for equal shared parental responsibility.

105I am satisfied that it is appropriate to make an order for equal shared parental responsibility. That is what the parties want and, as I have indicated during the course of the proceedings, I am hopeful that the husband will modify his attitude in his dealings with the wife. I am hopeful, as well, that the making of detailed orders dealing with parenting issues will limit the scope for the recurrence of disputes such as those that have occurred in the past.

Equal time, substantial and significant time and the parties' proposals

106Given that I have decided to make an order for equal shared parental responsibility, I am now obliged to consider whether the children spending equal time with the husband and the wife would be in their best interests (and related questions) and, if it is not, whether the children spending substantial and significant time with the husband and the wife would be in their best interests (and related questions).

107I am not satisfied that it is in the best interests of the children to spend equal time with each of their parents. I do not intend to repeat my earlier discussion in relation to changing the current arrangement.

108In addition to the matters referred to earlier in these Reasons, it is apparent that some form of equal shared care arrangement would require a greater need for cooperation and effective communication between the parties. As I observed on a number of occasions during the trial, on the evidence before me and the presentation of the parties, I cannot be satisfied that the required level of goodwill and respect exists in this case. Hence, I am not satisfied that any form of equal shared care arrangement would work positively and effectively from the children's point of view. The husband has demonstrated a striking lack of respect for the wife in his conduct towards her in the post-separation period, and in his conduct in relation to these proceedings. He has sought to continually devalue her capabilities as a mother, and has displayed a disproportionate eagerness to criticise her more broadly. His attitude and conduct do not augur well for constructive joint parenting.

109I am satisfied that a continuation of the current care and spend time arrangements would best meet the interests of these children. Further, I am satisfied that the wife's proposals as to the holiday and school term time the children should spend with their father properly meets the criteria of substantial and significant time. This arrangement will ensure that the children continue to enjoy a meaningful relationship with the husband. Indeed, that objective has been met, and has stood the test of time, under the current arrangements.

Conclusion regarding parenting issues

110I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "Parenting Orders" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals – and I decide, having considered all the factors that I believe to be relevant, that the orders I made on 23 January 2015 are those that are most likely to advance the children's best interests (which, after all, comprise the paramount consideration in these proceedings).

The parties' property claims

111The initiating applications and responses of the parties have been rendered of limited relevance because of events which have overtaken them since the proceedings were commenced.

112In her minute of proposed orders, the wife seeks that the parties' net property be divided on the basis of 70% to her and 30% to the husband. The husband provided a minute of proposed orders in the January 2015 proceedings (Exhibit H1) – but it did not specify a percentage distribution and included proposals for property distribution which no longer have application since the implementation of the Court's interim orders for sale. In his affidavit sworn 15 July 2016, the husband sought orders securing payment of all outstanding debts, including any rates and capital gains tax payable, and that any remaining property be distributed on the basis of 80% to him and 20% to the wife.

Relevant Financial History

113At the commencement of cohabitation, the husband was around 39 years old. He had interests in properties in Western Australia ([Property A]) and [the eastern states] ([Property B]), and he had some superannuation. He also said he had shares worth either $30,000 or $45,000, cars worth around $14,000, savings of $25,000 or $35,000 and furniture worth $20,000. There is no independent evidence in relation to the value of these properties or items, or as to the extent of any encumbrances secured against them. The husband simply offered his assessments of value in 2003/2004 and suggested that, at the time the parties commenced their relationship, he had property with a total value of around $1,000,000. In his affidavit of 15 July 2016 at [15], the husband identified property which he suggested had a total value of some $1,270,000, and referred to a later redundancy. The estimates as to gross value upon which he bases his assertions appear grossly inflated, given the current value or recent sale prices received in relation to such interests. In the absence of any information as to encumbrances or admissible evidence on value, it is simply impossible to have any real understanding of the extent of the husband's equity at the date the relationship commenced. The wife acknowledges the existence of most of such property interests, but does not know the value of the relevant items or properties at the time.

114The wife conceded that she did not have any property of significant value at the commencement of cohabitation. She had accumulated some superannuation benefits, which remain part of the current property pool.

115By and large, the husband was in full-time employment as [an electrician] throughout the relationship. He enjoyed some periods of high income, particularly during the mining booms. His employment history indicates that he has, at times, been capable of earning at least $100,000 per year in full-time employment. This figure is exclusive of redundancy payments and negative gearing factors: see exhibits W13 and W14.

116The wife was in paid employment at the commencement of the relationship, but fell pregnant with the parties' first child in early 2004. She did not work in paid employment after the birth of the first child, Child A, in January 2005: there was apparent consensus between the parties to the effect that she should dedicate herself to the full-time care of the children.

117The wife does not have any particular qualifications – although she attended TAFE and qualified as a [carer] prior to having children. She had also worked in [hospitality] and [secretarial] roles prior to the marriage. She has sought out some part-time and casual employment in the period since separation, but has found it difficult to secure employment given the demands of the children and the significant challenges she has had to meet. The difficulties faced by the wife include her emotional reaction to the breakdown of the marriage and the ordeal of this trial process (and the obligations it has imposed on her to manage the development and sale of some of the parties' properties). She is likely to remain largely dependent upon social security and the husband's irregular child support payments.

118A number of Perth properties were acquired during the relationship, including [Properties C and D], and [Property E], all [north of Perth].

119The husband's property at Property A served as the matrimonial home for the parties and their children. Property B was made available for occupation by the husband's mother. The remaining properties were rental investment properties. They were subject to commercial borrowings, and were utilised for income producing and negative gearing purposes. Each of the parties contributed to the management, maintenance and improvement of the investment properties.

120At separation, all of the property interests remained in the hands of the parties through the legal ownership of the husband. They also owned two motor vehicles and had household furniture, some modest savings and shareholdings and their individual superannuation interests. The matrimonial home was subject to a modest mortgage of $24,000, and the investment properties were encumbered to the extent of approximately $940,000.

121After separation, the husband remained in the matrimonial home. Because the wife and children had to find alternate accommodation, they initially took up temporary residence with the maternal grandparents.

122In the months and, ultimately, years following separation, there was significant conflict between the parties in relation to the support of the wife and children – including the need to provide them with some access to independent accommodation, the proper servicing of loans, the subdivision of properties and the adequate provision of information. These disputes resulted in numerous court events and greatly extended the life of this litigation, at significant cost to the parties. After living with the children at [Property C] for an extended period, the wife eventually secured orders enabling them to take up residence in Property E.

123To put it as delicately as possible, the husband proved uncooperative and was, at times, plainly obstructive. His lack of legal representation compounded these difficulties. He failed to comply with a number of orders and directions, failed to attend a number of court events and did not properly prepare his case. One of the consequences of the husband's actions (or inaction) was that, at the conclusion of the first stage of the trial on 23 January 2015, the state of the evidence was such that great uncertainty remained as to the real position of the parties' finances. Threats were being made by third parties in relation to some of the properties, values remained in issue and the viability of and likely returns from proposed subdivisions remained uncertain. There was no information about the taxation implications for the parties upon the realisation of any properties. It became apparent that it was simply impossible for the Court to properly determine some of the matters essential to the exercise of its property powers.

124As a consequence, it became necessary to make comprehensive orders designed to realise some properties, progress subdivisions, discharge existing liabilities and, generally, remove much of the uncertainty surrounding the true state of the parties' finances. Those orders were made on 23 January 2015 ("the January 2015 orders"), and are as follows:

Dictionary

1.In these orders:

a)"the parties" means the husband and the wife;

b)"the children" means the parties' children [Child A] born [in] 2005, [Child B] born [in] 2006 and [Child C] born [in] 2008;

c)"Christmas holidays" means the long summer (Christmas) school holiday period;

d)"the Joint Account" means the interest-bearing bank account in the joint names of the parties to be opened pursuant to these orders in such a manner as to ensure that no withdrawals can be made from the account without the signatures of both parties;

e)"[Property B]" means the property situated [in the eastern States];

f)"the [northern suburbs] properties" means the following three properties:

i)[Property C];

ii)[Property D]; and

iii)[Property E];

g)"the Four Properties" means Property B and the [northern suburbs] properties;

h)"the Entities" means the [Local Government], Landgate, WA Planning Commission, the Office of State Revenue, the Sheriff of the Supreme Court of Western Australia, all bailiffs in the States of Western Australia and [the eastern states], Baycorp, the Bank of Western Australia and –

i)any other local government or State or Federal Government Department, body or instrumentality; or

ii)any other bank or other financial institution; and

iii)any other debt recovery agency or business.

Final Parenting Orders

Discharge of all previous parenting orders

2.All previous parenting orders (including, but not limited to, the orders of 25 June 2014) be discharged.

Parental responsibility

3.The parties have equal shared parental responsibility for the children.

Live with arrangements

4.The children live with the wife.

Spend time arrangements

5.The husband spend time and communicate with the children as follows:

a)during school terms – each alternate week from after school or 3 p.m. on Thursday to the commencement of school or 9 a.m. on Monday (or Tuesday if the Monday is a Public Holiday);

b)during each of the mid-year school term holiday periods – for one half of the school holiday period, with handover to take place at 5 p.m. on the middle Saturday of each school holiday period;

c)during the Christmas holidays –

i)subject to (ii) below, for alternating weeks, with handover to take place at 5 p.m. each Friday (and in the event that the husband has only just collected the children from school on Thursday, the children are to remain with the husband until the following Friday [being a total of 8 days]), and

ii)notwithstanding (i) above, and in any event, the children must be returned to the wife by no later than 12 noon on the Sunday prior to the commencement of the new school year (and the husband's time with the children be suspended accordingly);

d)for Christmas:

i)commencing in 2015, and each in alternate year thereafter, from 9 a.m. on Christmas Eve to 2 p.m. on Christmas Day; and

ii)commencing in 2016, and in each alternate year thereafter, from 2 p.m. on Christmas Day to 6 p.m. on Boxing Day;

e)from 9 a.m. to 5 p.m. on Father's Day; and

f)at such alternate or additional times as may be agreed upon between the parties from time to time in writing.

6.In the event that either party proposes a change to the arrangements for the Christmas holidays referred to in paragraph 5(c) above, that party must put his/her proposal to the other party, in writing, by not later than 4 p.m. on 1 December.

7.The husband's time with the children be suspended as follows:

a)as provided for in paragraph 5(c)(ii) above;

b)for Christmas:

i)commencing in 2015, and in each alternate year thereafter, from 2 p.m. on Christmas Day to 6 p.m. on Boxing Day; and

ii)commencing in 2016, and each in alternate year thereafter, from 9 a.m. on Christmas Eve to 2 p.m. on Christmas Day;

c)from 9 a.m. to 5 p.m. on Mother's Day; and

d)at such alternate or additional times as may be agreed upon between the parties from time to time in writing.

8.On each of the children's birthdays, the party who does not have care of the children be at liberty to spend up to 4 hours with the children on that day at times as may be agreed between the parties from time to time in writing – but, failing agreement, from 3 p.m. to 7 p.m. on that day.

9.Both parties have reasonable telephone communication with the children after 6 p.m. when the children are in the other parent's care.

Contact details

10.Each party must keep the other party advised and informed of his/her current residential address, telephone numbers (including landline and mobile numbers) and email address, and must notify the other party within 24 hours of any change to any of these details.

Medical issues

11.Each party must:

a)advise the other party, at the first available opportunity, in the event that any of the children suffers any serious illness or injury during the child's time with that party; and

b)authorise any medical or other health care professional upon whom the child may attend from time to time to communicate with the other parent regarding the child's condition and/or requirements.

12.Nothing in these orders shall prevent either party from having any of the children treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the party arranging such treatment must immediately notify the other party of the following details:

a)the name and contact details of the medical or other health care professional administering the treatment; and

b)the medical or other complaint for which the child was taken to the medical or other health care professional; and

c)any treatment and/or medication prescribed for or provided to the child.

Non-denigration

13.The wife and her servants and agents be and are hereby restrained by injunction from:

a)abusing, insulting, belittling, rebuking or otherwise denigrating the husband; and

b)discussing these proceedings (including, but not limited to, the issue of equal time),

to, with or in the presence or hearing of the children or any of them, and from permitting any other person to do so.

14.The husband and his servants and agents be and are hereby restrained by injunction from:

a)abusing, insulting, belittling, rebuking or otherwise denigrating the wife; and

b)discussing these proceedings (including, but not limited to, the issue of equal time),

to, with or in the presence or hearing of the children or any of them, and from permitting any other person to do so.

Travel

15.Both parties be restrained by injunction from removing the children (or any of them) from the State of Western Australia or the Commonwealth of Australia without –

a)the prior written consent of the other party; or

b)an order of the Family Court of Western Australia (or other court of competent jurisdiction) authorising such removal.

Parenting Course

16. Both parties must –

a)attend and complete, as soon as practicable, the Mums and Dads Forever or other appropriate post separation parenting program ("the Program") at an organisation nominated by the Director of the Family Court Counselling and Consultancy Service;

b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

c)pay and otherwise be responsible for all costs associated with the Program; and

d)provide an appropriate certificate of completion of the Program to the other party.

231It appears that there is consensus between the parties to the effect that, if possible, the wife should be able to retain Property E for herself and the children and that the husband should be given an opportunity to retain Property A for similar purposes.

232The husband sought a superannuation splitting order but, for the reasons earlier discussed, I am not in a position to accommodate that request.

233If the wife retains Property E (item 2 in the property schedule), her superannuation and her household contents (items 8 and 9 in the property schedule), she will be retaining property to a value of $610,000. The remaining proceeds of sale of $47,781 (item 10 in the property schedule) are available, part of which should be used to pay the outstanding rates on Properties A and E, being $4,805 and $4,305 respectively (items 11 and 12 in the property schedule). The total of all these figures is $648,671. It follows that the wife must receive an additional $260,129 from the husband (being the "shortfall" between $908,800 and $648,671).

234In terms of the husband's position, he will retain items 1, 3, 4, 5, 6 and 7 in the property schedule, out of which he will be required to pay the wife $260,129. He will also be responsible for any liability to the Australian Taxation Office in respect of CGT.

235The husband asks for the opportunity to retain Property A and the wife is content for him to have that opportunity. On his evidence regarding his income and with his recent history of defaulting on payments, his prospects of raising finance may be bleak. If, however, his real earning capacity is as I have determined, then he may have some prospects of raising the funds necessary to pay out the wife. I intend to give the husband a reasonable opportunity to raise the funds – but to make provision for the sale of the Property A in the event the husband fails to make the payment required.

236In the present case, the s 75(2) adjustment equates to $158,052 (being 10% of $1,580,522). I am satisfied that such an adjustment is proper – even taking into account that it creates a "differential", as it were, of 20%, or approximately $316,104. I am also satisfied that the adjustment is proper when regard is had to the difference between the wife's overall entitlement (being 57.5%) and the husband's overall entitlement (being 42.5%), which difference equates to 15% of the property (or $237,078) in the wife's favour. Such a result is just and equitable.

237The orders I propose would see the wife, who has the primary responsibility for the children, with the benefit of the opportunity to own and occupy an unencumbered home which is modest but adequate for her family. She will retain a modest superannuation interest and have access to something approaching $300,000 to provide her with some opportunity to invest and meet ongoing costs. She is likely to remain dependent upon social security to some degree but will have the capacity to supplement the household income with casual employment. Hopefully, she will also receive the benefit of regular child support, although concerns remain in that regard.

238The husband will have the opportunity to retain the more valuable home for himself (and the children), subject to the need to obtain finance sufficient to pay out the wife and to meet any CGT obligations. If Property A has to be sold, he should be able to acquire a home of similar value to that of the wife, subject perhaps to some comparatively modest additional borrowings. He has a good earning capacity to fall back on. Hopefully, the husband will commence meeting his child support obligations in a more consistent manner.

239I am very conscious that justice and equity must be done to both parties, and I am satisfied that the split that I have proposed achieves that result.

Costs

240The question of costs in family law proceedings is dealt with in s 117 of the FLA.

241A trial judge has a very broad discretion in costs matters.

242A finding of justifying circumstances is an essential preliminary to the making of a costs order, but there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party shall bear his or her own costs, this rule is expressed to be subject to s 117(2), and it must yield whenever a judicial officer finds that there are circumstances which justify the making of a costs order.

243FLA s 117(2) provides as follows:

If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A)…and the applicable Rules of Court, make such order as to costs…as the court considers just.

244FLA s 117(2A) provides as follows:

In considering what order (if any) should be made under subsection (2), the court shall have regard to:

a)the financial circumstances of each of the parties to the proceedings;

b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

g)such other matters as the court considers relevant.

245The weight to be given to the various factors referred to in s 117(2A) is a matter for the trial judge. All the factors must be taken into account and balanced when considering whether the overall circumstances justify the making of a costs order. On the other hand, there is nothing to prevent any one of the factors being the sole foundation for an order for costs.

246Throughout these Reasons, it has been necessary to make reference to the husband's conduct in the proceedings and the adverse impact it has had upon the wife and in relation to the proper progress of this matter. Clearly, there are serious costs implications in relation to such matters. There have been several applications before the Court which have, at least in part, been necessitated by the husband's conduct. The wife's costs in relation to such proceedings have been reserved. There are also issues relating to the abandonment of an initial trial listed in 2014, the adjournment of the proceedings, on a part-heard basis, in 2015 and any associated costs thrown away as a consequence of such postponements.

247I am satisfied that the husband has failed to provide full and frank disclosure to the wife. He has also failed to comply with express orders relating to preparation of his tax returns. Even making allowances for his self-representation, I am satisfied that he failed to apply proper effort to the timely presentation of his case.

248For the reasons already outlined, I find the husband's conduct as a litigant was reprehensible. I have no doubt that it made the proceedings more complex and lengthy than they should otherwise have been. It seems to me that the predominant purpose for the husband's actions in this regard was to effectively exhaust the wife as a litigant and thereby discourage her from pursuing her claim for property settlement – and, perhaps, to accede to certain of his claims in relation to parenting issues. Overall, the husband's attitude was intractable (indeed, in my opinion he was bloody minded), and driven by any rational antipathy to the wife.

249Each of the parties sought orders for costs. The husband has not established any basis upon which any order could be made in his favour. As to the wife's claim, her solicitor/client costs were calculated at some $75,000 at the date of trial and $3,000 for each of the resumed hearing days: see exhibit W25. Ms Wadsworth informed the Court that the fees charged were comparatively modest and had been kept as low as possible – and I have little doubt about those propositions, given the duration and unnecessary complexity in this case.

250Of course, some of the time, preparation and costs of this exercise would have been dedicated to the parenting issues. That was a proper case to be heard and determined and, on its own, would have been unlikely to attract any departure from the usual order that each party pay his or her own costs.

251The property application, which was tied to the children's proceedings, was clearly adversely affected by the husband's conduct as a litigant – which would have significantly increased the wife's costs.

252I note that neither party had access to legal aid. I take account of the fact that the husband represented himself and would not have incurred any or any significant legal costs in the conduct of the proceedings, although he may be left with some comparatively modest debt to lawyers who assisted in the past. On the other hand, the wife will be required to meet any shortfall between the costs order I make and her outstanding obligations to her solicitors. These costs remain substantial and will serve to diminish her cash reserves.

253I take account of the financial circumstances of the parties, as adjusted by the terms of the orders I am about to make. Again, I record that the husband will have much higher future income and earning capacity than the wife.

254Whether or not the wife could be characterised as being completely successful in the proceedings, it is fair to say that the husband was wholly unsuccessful in the orders he sought. The fact of the matter is, however, that Parliament has directed the Court's attention to a party's lack of success in preference to a party's success in the proceedings. As Thackray J said in Hawkins & Roe (2012) 47 Fam LR 526 at [161], "even a meritorious case can be 'unsuccessful' when the other case is found to have greater merit". In the current proceedings, it must be said that "meritorious" is certainly not an adjective that springs to mind when considering aspects of the husband's case.

255In Maker & Jets (No 3) [2012] FMCAfam 1104, I said at [84]:

In broad terms, the general law is to the effect that it is just and reasonable that someone who causes a person to incur legal costs should reimburse that person for those costs: see, for example, Latoudis v Casey (1990) 170 CLR 534. Costs (relevantly, party and party costs) are compensatory, in the sense that they intended to partially indemnify a successful litigant against his or her liability for legal costs. In other words, they are compensatory, not punitive: see Braithwaite (2007) FamCA 468. To that extent, "punishment" and "penalty" are not relevant considerations. Indeed, they are fraught concepts, given that a successful litigant who has fought long and hard through the court system to clear himself or herself of serious and perhaps malicious allegations that may have been made against him or her (which allegations may have the most profound effect on his or her relationship with his or her children, or on his or her financial well-being) might fairly consider that a reluctance of the part of the Court to order costs in his or her favour is tantamount to being punished, or penalised, for having chosen to litigate instead of, say, to metaphorically "walk away".

256Put another way, when considering whether it is just to make an order for costs, the Court is not concerned with "punishing" the husband. The purpose of a costs order is to compensate the successful party, not to punish the unsuccessful party. Still, "unreasonable behaviour of litigants in prosecuting or defending claims exacerbates the costs which their opponents must pay" and "it is just and reasonable that the party who has caused the other to incur the costs of litigation should reimburse the successful party for the liability incurred": see King v Yurisich (No 2) [2007] FCAFC 51 at [19].

257I am well aware that costs do not follow the event in family law proceedings and that the approach to be adopted is that which I have described above. Nevertheless, there can be no doubt that the husband's attitude and behaviour were unreasonable in that they caused the wife to incur costs that could have been avoided – in part, at least.

258I am satisfied that there are circumstances which justify the making of an order for costs in the wife's favour. The most significant of those circumstances are the husband's conduct as a litigant and the fact that he was wholly unsuccessful in the majority of his claims before this Court.

259I have given careful consideration to the husband's financial position and the difficulty he is likely to experience in endeavouring to meet an order for costs. I accept that the husband's financial position may be a factor that would mitigate against the making of an order for costs. At the end of the day, however, I am satisfied that the other relevant factors clearly, and significantly, outweigh it.

260In all the circumstances, it would be unjust and unfair for the Court to fail to make an order for costs in the wife's favour.

261The Court has power to order that a party is entitled to costs of a specific amount. It also has power to order that costs be assessed on a particular basis or be calculated in accordance with an appropriate method. In determining which method or approach to adopt, the Court can take into account a number of considerations: see, for example, Rule 19.18(3) of the Family Law Rules 2004.

262There is no evidence that the wife's solicitors have conducted themselves in an improper or unreasonable manner (even if the husband may think that they have). Further, there is no evidence that the time spent on the case (or in relation to pre-action procedures) by the wife's solicitors was other than proper.

263Taking all of the above matters into account, and in all the circumstances, I have determined that the husband should make a contribution to the wife's costs fixed in the sum of $35,000.

Orders

264The orders I propose to make are as follows:

(1)The husband forthwith transfer to the wife all of his right, title and interest in property situated at and known as [Property E]

(2)Within 60 days of the date of this order ("the payment date"), the husband must pay to the wife the sum of $295,129 ("the judgment debt"), being $260,129 in relation to the wife's claim for property settlement and $35,000 in relation to costs;

(3)The husband be at liberty to seek finance secured against his interest in the property situated at and known as [Property A] for the purpose of paying the judgment debt, but not otherwise – until and unless the wife has been paid in full.

(4)Subject to (5) below, upon the payment of the judgment debt, the wife must transfer to the husband all of her right, title and interest, if any, in [Property A]

(5)In the event the husband fails to pay to the wife the whole of the judgment debt by the payment date:

(a)Para (4) above be discharged and [Property A] be placed on the market for sale forthwith.

(b)The wife be appointed sole trustee for the purpose of causing and completing the sale of [Property A] as soon as practicable.

(c)The wife and, where necessary, the parties must do all such acts and things and sign all such deeds, contracts, authorities, transfers and other documents as may be required to sell [Property A] as soon as practicable, for the best price reasonably available.

(d)The wife have sole authority to conduct the sale of [Property A] either by public auction or by private treaty for the best price reasonably available, such authority to include (but not be limited to):

(i)listing [Property A] for sale by public auction or private treaty with an estate agent nominated by the wife ("the Agent");

(ii)fixing the reserve price or listing price (as the case may be) for [Property A];

(iii)appointing solicitors or settlement agents to act in relation to the sale of [Property A];

(iv)effecting a transfer of [Property A] to the purchaser or purchasers;

(v)disbursing the proceeds of the sale of [Property A] pursuant to these orders; and

(vi)signing all such authorities and other documents and doing all such acts and things as shall be necessary to ensure that [Property A] is ready for sale and inspection prior to sale.

(e)The parties must each cooperate in every reasonable way with the Agent, including (but not limited to):

(i)making the keys to [Property A] available to the Agent;

(ii)allowing inspection of [Property A] at all reasonable times requested by the Agent;

(iii)not saying or doing anything that may hinder or prevent a sale of [Property A] being effected; and

(iv)ensuring that [Property A] is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers.

(f)Upon completion of the sale of [Property A] in accordance with these orders, the wife and, where necessary, the parties must apply the proceeds of sale as follows –

(i)firstly, to pay all costs, commissions and expenses of the Agent;

(ii)secondly, to pay the legal costs, fees and disbursements associated with the sale of [Property A];

(iii)thirdly, to pay and discharge all moneys outstanding to the Bank of Western Australia Ltd or any other bank or financial institution pursuant to any mortgage or mortgages encumbering [Property A];

(iv)fourthly, to pay and discharge any other encumbrance registered against [Property A];

(v)fifthly, to adjust and pay all outstanding municipal and water and sewerage rates and charges relating to [Property A];

(vi)sixthly, and provided that the Agent has certified in writing to the wife before the incurring of any relevant expense that it is reasonably necessary for such expense to be incurred, to reimburse to the wife any reasonable costs properly incurred and actually paid by her in relation to effecting this order for sale of [Property A], including (but not limited to):

(A)costs and expenses of any necessary maintenance and repairs and/or painting;

(B)costs of engaging a cleaner or similar contractor to make [Property A] ready for sale; and

(C)advertising expenses; and

(vii)finally, to pay the balance then remaining as follows:

(A)to the wife: the judgment debt (or so much thereof as shall remain outstanding), together with interest thereupon to be calculated from the payment date to the date of actual payment – such interest to be at the rate specified in or in accordance with the Family Law Rules 2004; and

(B)to the husband: any moneys remaining after the payment referred to in A) above.

(g)Both parties and their servants and agents be restrained by injunction from doing any act or thing or signing any deed or document relating to or associated with the sale of [Property A] other than in accordance with these orders.

(6)Save as provided for in para (3) above, the husband and his servants and agents be restrained by injunction from:

(a)disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing in any way whatsoever with [Property A];

(b)removing any fixtures or fittings from [Property A] (save for the purpose of repairing or replacing such fixtures or fittings if they are reasonably in need of repair or replacement);

(c)doing, causing, authorising or facilitating any act or thing which has or may have the effect of:

(i)demolishing, razing, dismantling, breaking, defacing, polluting or damaging [Property A] in any way whatsoever (save for the purpose of repairing or replacing fixtures or fittings if they are reasonably in need of repair or replacement);

(ii)diminishing the utility or aesthetic appeal of [Property A] in any way whatsoever; and/or

(iii)diminishing the value of [Property A].

(7)All the share and interest the husband may have in respect of the following forthwith vest in the wife:

(a)any motor vehicle registered in the name of the wife;

(b)the wife's personal chattels and effects;

(c)the furniture in the possession of the wife;

(d)all moneys standing to the credit of the wife in any account in any bank, building society or other financial institution;

(e)the amount of $47,781 referred to as "Balance sale proceeds" and appearing as item 9 in the property schedule; and

(f)the wife's superannuation entitlements.

(8)The wife must – forthwith upon receiving the amount of $47,781 referred to as "Balance sale proceeds" and appearing as item 9 in the property schedule – pay the amount of $4805 owing to [the Local Government Council] in respect of [Property A] (being item 10 in the property schedule) and the amount of $4305 owing to [the Local Government Council] in respect of [Property E] (being item 11 in the property schedule).

(9)All the share and interest the wife may have in respect of the following forthwith vest in the husband:

(a)any motor vehicle registered in the name of the husband;

(b)the husband's personal chattels and effects;

(c)the furniture in the possession of the husband;

(d)all moneys standing to the credit of the husband in any account in any bank, building society or other financial institution;

(e)any shares in any publicly listed company held in the name of the husband; and

(f)the husband's superannuation entitlements.

(10)The husband indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to any Capital Gains Tax liability arising as a result of the sale of properties by the parties in accordance with the orders made by this Court on 23 January 2015 and 23 June 2015 – and from all actions, proceedings, costs, claims and expenses in respect thereof.;

(11)Unless otherwise specified in these orders, and save for the purposes of enforcing any moneys due under these or subsequent orders:

(a)each party be solely entitled to the exclusion of the other to all other property (including real property, superannuation entitlements and choses-in-action) in the possession of such party at the date of these orders;

(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(c)each party be solely liable for any debt standing in the name of that party.

(12)Notwithstanding the above orders, and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended, the Principal Registrar or a Registrar of the Family Court of Western Australia be forthwith appointed to execute in the name of the husband all deeds, contracts, authorities, applications, transfers, lease agreements, tenancy agreements, rental authorities, bank directions and other documents ("the Documents") as may be required to –

(a)sell [Property A]; and

(b) transfer [Property E] to the wife,

in accordance with these or any subsequent orders, and to do all acts and things as shall be necessary to give validity and operation to the Documents.

(13)The parties must forthwith do all acts and things and sign all documents necessary to give effect to the orders made herein.

(14) There be liberty to apply in relation to the implementation of these Orders.

I certify that the preceding [264] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
30 May 2017