HEARN & WOOLCOTT

FAMILY COURT OF AUSTRALIA

HEARN & WOOLCOTT

[2018] FamCA 486

FAMILY LAW – CHILDREN – Where the parties agree on the majority of the parenting arrangements for their two children – Where the expressed views of the elder child are given considerable weight and no parenting orders are made in accordance with those views – Where orders are made for the younger child to spend time with the father upon certain conditions – Where the mother seeks an order suspending that time if any of the conditions are not met – Where an order is made suspending time for the younger child if certain of those conditions are not met.

FAMILY LAW – PROPERTY – Where the husband and wife first entered into an informal agreement and then a consent property settlement order – Where the informal agreement was not implemented and the consent orders set aside - Where it is just and equitable to make a property settlement order – Where the net assets of the parties are divided evenly, including an equal splitting of superannuation – Where the husband seeks an opportunity to keep the former matrimonial home and the wife seeks the sale of the property – Where the husband should have the opportunity to retain the home.

Family Law Act 1975 (Cth)

Bevan & Bevan (2013) FLC 93-545
Coghlan & Coghlan (2005) FLC 93-220
Kennon & Kennon (1997) FLC 92-757
Maine & Maine (2016) 56 Fam LR 500
Smith & Smith (1991) FLC 92-261
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Hearn

RESPONDENT:

Mr Woolcott

FILE NUMBER:

SYC

1609

2012

DATE DELIVERED:

28 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

26 February 2018 – 1 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Cumming SC with Mr Apelbaum

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

PARENTING

The parties have equal shared parental responsibility for the children X, born … 2001 (“X”), and Y, born … 2003 (“Y”) (collectively referred to as “the children”), and shall consult with each other and agree on the following, including but not limited to, in relation to the children:
1.1.Operations;
1.2.Medical procedures and other general consultations;
1.3.Dental treatment;
1.4.Physiotherapy;
1.5.Psychological counselling;
1.6.Alternative medical treatment;
1.7.Education; and
1.8.Sporting activities and extracurricular activities, where such activities affect the children's time with the other parent.
It is noted that it is the intention of the parties that Y live with the mother and father for equal time subject to Orders 7, 8, 9 and 10 below.
Unless otherwise agreed, Y live, during non-school holiday periods, with the mother for a period of seven (7) days and nights in each two (2) week cycle.
Unless otherwise agreed, Y live, during non-school holiday periods, with the father for a period of seven (7) days and nights in each two (2) week cycle.
X live with the mother.
X spend time and communicate with the father by agreement between the parties and in accordance with X's wishes.
At any time when the children, or either of them, are in the care of the father, that father be restrained from:
7.1.Consuming alcohol to excess;
7.2.Consuming any illicit or recreational drugs;
7.3.Physically disciplining or otherwise physically chastising the children or either of them;
7.4.Storing alcohol in any room in which the children are to sleep; and
7.5.Having lodgers, boarders or tenants living or staying in the property where the children live.
The father shall provide each individual child with a separate dedicated lockable bedroom to sleep or otherwise occupy.
The father be restrained from at any time, utilising the children’s bedrooms for any form of short or long term rental/holiday accommodation including, but not limited to, AirBnB, Stayz, Gumtree and rentals of any kind, whether or not the children are in his care.
In the event the father fails to fully comply with Orders 7.4, 7.5, 8 and/or 9, then Orders 1, 2, 3, 4 and 13 are suspended and:
10.1.The mother shall, for the period of such suspension, have sole parental responsibility for the children;
10.2.Y shall live with the mother at all times during the period of such suspension except for the following periods when he shall spend time with the father:
10.2.1.Wednesdays from 3.00pm to 6.00pm; and
10.2.2.Saturdays from 9.00am to 5.00pm.
10.3.All changeovers during the period of such suspension shall occur with the father collecting Y from and returning Y to outside the mother’s residence; and
10.4.Orders 10.1, 10.2 and 10.3 shall remain in force until such time, as the father is able to demonstrate full compliance with Orders 7.5, 8 and 9 collectively.
Pursuant to s 68B of the Family Law Act 1975 (Cth), the father be restrained from entering onto the property at B Street, Suburb C or any other home at which the mother may reside from time to time, at any time, or for any purpose.
All changeovers for the purposes of these Orders, except when Order 10 applies, shall occur at the school attended by Y or, if Y is not attending school, then the parent to have care of Y will collect Y from outside the other parent's residence.

School holidays

For the purposes of school holiday periods and unless otherwise agreed:
13.1.School holiday periods are defined as commencing at the end of school on the last day of the Term for students applicable to the school that Y attends from time to time and shall conclude at the start of school on the first day school recommences for students applicable to the school that Y attends from time to time;
13.2.The time Y lives with the mother and father respectively pursuant to Orders 3, and 4 above, shall be suspended during the school holiday periods;
13.3.The time Y lives with the mother and father respectively, pursuant to Orders 3 and 4, and subject to Orders 7, 8 and 9 above, shall recommence at the start of school on the first day school Term recommences for students applicable to the school that Y attends from time to time. The parent with whom Y did not live immediately prior to the school holiday period, shall have Y in his care in the first week of the new school Term;
13.4.For the first half of the school holiday period, Y shall live with the mother in odd numbered years, and with the father in even numbered years; and
13.5.For the second half of the school holiday period Y shall live with the mother in even numbered years, and with the father in odd numbered years.

Special occasions

Christmas

Unless otherwise agreed and notwithstanding any other Order, in odd numbered years Y shall live with:
14.1.The mother from 9.00am on 24 December to 11.00am on 25 December; and
14.2.The father from 11.00am on 25 December until 4.00pm on 26 December.
Unless otherwise agreed and notwithstanding any other order, in even numbered years Y shall live with:
15.1.The father from 9.00am on 24 December until 11.00am on 25 December; and
15.2.The mother from 11.00am on 25 December until 4.00pm 26 December.

Birthdays

Unless otherwise agreed on Y's birthday the parent who is not due to care for him that night pursuant to these Orders shall spend from 5.00pm until 8.00pm with Y.
Unless otherwise agreed on the father's birthday, in the event that the father is not due to care for Y that night pursuant to these Orders, the father shall spend from 5.00pm until 8.00pm with Y.
Unless otherwise agreed on the mother's birthday, in the event that the mother is not due to care for Y that night pursuant to these Orders, the mother shall spend from 5.00pm until 8.00pm with Y.

Father’s Day

In the event that Father's Day falls on a day upon which Y would otherwise live with the mother, the mother's time with Y shall be suspended from 5.00pm the day before Father's Day until 9.00am the following Monday and Y will spend that suspension period with the father.

Mother’s Day

In the event that Mother's Day falls on a day upon which Y would otherwise live with the father, the father's time with Y shall be suspended from 5.00pm the day before Mother's Day until 9.00am the following Monday and Y will spend that suspension period with the mother.

Contact details and communication

The mother and the father do all things necessary to ensure the other parent is:
21.1.Provided with a residential address and telephone number upon which the children can be contacted when in the care of the other parent; and
21.2.Notified immediately and updated of any change in residential address or telephone number upon which the children can be contacted when in the care of the other parent.
Each parent will facilitate communication between the children and the parent not due to care for the children. Each parent will not prevent forms of communication at reasonable times including FaceTime, text messages, email and telephone calls.
Each parent is to notify the other parent, within one (1) hour of any serious injury or illness suffered by one of the children whilst in the care of that parent.
Each parent shall have equal access to the school newsletters, announcements, notes and student reports and each parent shall be responsible for ensuring the children's school(s) and other service providers have their correct contact details.

Passports

The mother shall hold the Passport of X and the father shall hold the Passport for Y.

Overseas travel

In the event that either the mother or the father wishes to have the children leave the Commonwealth of Australia for a holiday, then:
26.1.He or she shall ensure that all travel is approved by the other parent in advance of the date of travel;
26.2.The parent wishing to have the child/ren travel outside of Australia shall provide the other parent with a copy of the travel itinerary at least one (1) week prior to departure and provide to the other parent a copy of the flight/Cruise tickets for themselves and/or the children at least one (1) week prior to departure;
26.3.The parent not travelling, who holds a passport of a child who is travelling, shall make available to the other parent, at least one week prior to departure, the relevant child's passport; and
26.4.The parent having the child/ren leave Australia shall ensure the child's passport is returned to the other parent within fourteen (14) days of returning to Australia.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

An order by way of alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 29 to 48 below.
Within 120 days of the date of these orders, and in that regard time shall be of the essence, the husband pay the wife $314,520.
In the event the husband fails to comply with paragraph 29 the husband do all things and sign all documents necessary to cause the property situate at and known as D Street, E Town in the state of New South Wales ('the E Town property') being the whole of the land contained in Folio Identifier … to be sold by public auction, such auction to take place no later than twelve (12) weeks after the expiration of the time referred to in paragraph 29, and to cause the proceeds of sale to be disbursed as follows and in that priority:
30.1.In payment of agent's commission, advertising expenses and legal expenses of the sale;
30.2.In payment of the amounts necessary to discharge all mortgages secured on title to the E Town property;
30.3.In payment of costs incurred in relation to the nomination of a Real Estate Agent (if any), in payment of costs incurred in relation to the nomination of a Solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee (if any);
30.4.To pay into an account established pursuant to paragraph 41 below ["the CGT Bank Account"], such sum estimated by an independent registered accountant as agreed between the parties, and in the absence of agreement, as appointed by the President from time to time (or his/her nominee) of the Institute of Chartered Accountants of Australia ("the accountant"), with the cost thereof to be paid by the parties equally with such estimate to be provided by the accountant not less than 30 days prior to the date of settlement of the E Town property;
30.5.Payment to the wife of the sum of $314,520 (“the wife’s amount”). In the event that the E Town property sells for more than $2.2 million, the wife’s amount shall increase by an amount which is one half of the difference between the gross sale price and $2.2 million, but in the event that the E Town property sells for less than $2.2 million then the wife’s amount shall decrease by one half of the difference between the gross sale price and $2.2 million; and
30.6.Payment of the balance then remaining to the husband, with the husband to be responsible for the payment of any outstanding municipal, water rates and arrears on regular repayments in respect to the mortgage outstanding in respect of the E Town property.
For the purposes of paragraph 30 above and any subsequent auction, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days after the expiration of 120 days from the date of the orders, then shall be a real estate agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee.
For the purposes of paragraph 30 above and any subsequent auction, the Solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days after the expiration of 120 days from the date of the orders, then shall be a solicitor appointed by the President of the Law Society of New South Wales or his/her nominee.
For the purposes of paragraph 30 above, the sale price for the property from time to time shall be as agreed between the parties and, failing agreement within seven (7) days after the expiration of 120 days from the date of these orders, then shall be at a price determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee.
The parties each co-operate in every way with the Agent and the Valuer, including (without limiting the generality of the foregoing):
34.1.Allowing inspection of the E Town property at all reasonable times requested by the Agent;
34.2.Doing or saying nothing to hinder or prevent a sale being effected; and
34.3.Signing all documents requested by the Agent in relation to the listing for sale of the E Town property except a contract or agreement for sale which has not been authorised by the parties' solicitors.
In the event the bidding at the auction does not reach the reserve price, the parties or such of them as attends the auction be entitled to negotiate with the highest bidders or any other interested person and effect a sale of the E Town property at a price which is not more than 5 per cent below the reserve price, or at such other price as the parties agree upon in writing. If the E Town property remains unsold notwithstanding an auction pursuant to paragraph 30 above, the parties do all acts and things and sign all documents necessary to immediately relist the E Town property for sale by public auction again, on a date nominated by the Agent and at such auction there be no reserve price unless otherwise agreed by the parties in writing prior to such auction.
Pending settlement of the sale of the E Town property the husband shall:
36.1.Keep the E Town property in good order and repair;
36.2.Cooperate in all reasonable way with requests by real estate agents and/or prospective purchasers, including but not limited to:
36.2.1.Providing keys to obtain access;
36.2.2.Doing all things necessary to facilitate access to the E Town property at all reasonable times and facilitating access for inspection without interference; and
36.2.3.Facilitating 'open house' on not less than one occasion each week during the period the E Town property is listed for sale; and
36.3.Maintain the E Town property in a presentable condition so as to facilitate the sale, including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection.
As between the husband and the wife, and subject to the above orders, the husband shall retain all interest in and entitlement to:
37.1.All personal property now in his possession or control;
37.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name; and
37.3.All interests in life insurance policies and superannuation funds standing in his sole name.
As between the husband and the wife, and subject to the above orders, the wife shall retain all interest in and entitlement to:
38.1.All personal property now in her possession or control;
38.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name; and
38.3.All interests in life insurance policies and superannuation funds standing in her sole name.
The parties forthwith do all acts and things to establish an account with National Australia Bank ("the CGT Bank") in the joint names of the parties and requiring the signature of both parties to operate it ("the CGT Bank Account"), for the purposes of paragraph 30.4 above.
Forthwith, following completion of the financial year in the tax year in which the E Town property is sold, the husband do all acts and things to instruct and cause his accountant to prepare and lodge his tax return for that financial year.
Forthwith, upon completion of the husband's tax return pursuant to paragraph 40 above, the husband:
41.1.Provide a copy of the tax return to the wife and do all acts and things to cause his accountant to calculate that portion of the tax payable that is referrable to any Capital Gains Tax in respect of the E Town property, if any ("the Referable Tax"); and
41.2.Lodge his tax return forthwith.
The husband provide to the wife a copy of any assessment issuing for the tax year in question encapsulating the Capital Gains Tax identified above and should either party take issue with the calculation of the Referable Tax calculated pursuant to paragraph 41 above or the issued assessment, the parties forthwith do all acts and things to cause that calculation and assessment to be verified within 14 days by the accountant nominated by the wife ("the Verified Tax"), with the costs thereof to be paid by the parties equally.
The husband and wife then be bound by the calculation of the Referable Tax (or the Verified Tax if applicable), and subject to paragraph 44 below, then forthwith, do all acts and things to cause the monies in the CGT Bank Account to be paid, in the following order and priority:
43.1.To discharge in full the Referable Tax (or the Verified Tax if applicable);
43.2.To pay 50 per cent of the balance (if any) to the husband; and
43.3.To pay the 50 per cent of the balance (if any) to the wife.
Should the monies in the CGT Bank Account not be sufficient to meet the Referable Tax (or the Verified Tax if applicable), the parties each forthwith pay that shortfall in equal shares.

Save as otherwise agreed between the parties in writing, and pending the husband's compliance with paragraph 29 (or settlement of the sale of the E Town property pursuant to paragraph 30 if applicable):
45.1.The husband shall pay the repayments in respect of the E Town mortgage as and when due and payable; and
45.2.The husband be restrained from doing any act or thing to further encumber the E Town property without the prior written consent of the wife.
In accordance with s 90MT(1)(a) of the Act and in order of priority:
46.1.A base amount be allocated to the wife out of the husband's interest in the husband's Superannuation, the F Super Fund, in the amount of $81,620 ["the wife's Super Base Amount"];
46.2.The wife be entitled to be paid the wife's Super Base Amount when a splittable payment first becomes payable to the wife from the husband’s interest in the husband's F Super Fund, in accordance with the Family Law (Superannuation) Regulations 2001;
46.3.The husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made to the first payment out of the husband's interest in the husband's F Super Fund, be hereby correspondingly reduced;
46.4.This Order have effect from the operative date, being 7 days from the date of this order ("the Operative Date");
46.5.the Trustee of the F Super Fund do all acts and things and sign all documents necessary to:
46.5.1.Calculate, in accordance with the requirements of the Family Law Act1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created by this paragraph; and
46.5.2.Pay the entitlement when a splittable payment first becomes payable out of the husband's interest in the husband's F Super Fund;
46.6.Having been accorded procedural fairness in relation to the making of these orders, these orders bind the Trustee of the husband's F Super Fund.
46.7.Any payments from the husband's interest in the husband's F Super Fund, made after the Trustee has rolled over or transferred the interest in favour of the wife out of the husband's interest in the husband's F Super Fund pursuant to the above orders, not be splittable payments; and
46.8.The Trustee of the husband's F Super Fund be relieved of its obligations to calculate and split payments pursuant to this paragraph once the transferable benefits are transferred to the wife's EE Superannuation (or such other fund as the wife nominates by the Operative Date).
Pursuant to s 81 of the Family Law Act 1975 the parties intend these orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
It is noted that the parties have further agreed that the property would be sold “as is”, unless they each mutually agree that certain certifications should be obtained or remedial work done, in which case there is also to be an agreement as to how that work would be funded and how the person(s) funding the work would be reimbursed from the proceeds of the sale.
In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hearn & Woolcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1609 of 2012

Ms Hearn

Applicant

And

Mr Woolcott

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties are unable to agree on a small but significant part of the parenting arrangements in respect of the two children of the marriage, X born in 2001 (“X”), who is aged 16 and Y born in 2003 (“Y”), who is aged 14 (collectively “the children”).
The wife also makes an application for a property settlement order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Section 79(2) of the Act provides that the court shall not make an order under s 79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. The husband’s primary position is that in the circumstances of this case it is not just and equitable to make any order and seeks the wife’s application be dismissed.
The parties separated in March 2011. On 10 August 2012, a Deputy Registrar of this court, by consent, made a property settlement order which provided that the wife transfer her interest in the property at D Street, E Town (“the E Town property”) to the husband and he pay to the wife the sum of $350,000 and indemnify her in respect of the mortgage on the E Town property. The husband made the payment to the wife and the E Town property was transferred into the name of the husband.
On 5 February 2014, Rees J granted the wife leave to review out of time the Registrar’s exercise of power in making orders by consent between the husband and wife on 10 August 2012. The automatic consequence of granting that leave, given the wife had withdrawn her consent, was that the consent orders no longer were viable and her Honour discharged the consent orders of 10 August 2012.
In the s 79 application, the issues to be decided are whether any order should be made, and if so, what that order should be. The wife seeks an order for the sale of the E Town property and a division of the proceeds of sale. The husband proposed alternate property settlement orders if his submission that no order be made was unsuccessful.

APPLICATIONS

The orders which the wife is seeking are set out in Schedule 1.
The orders which the husband is seeking are set out in Schedule 2.

DOCUMENTS RELIED UPON

The documents upon which the wife relies include:
8.1.Affidavit of Ms Hearn, filed 30 November 2017;
8.2.Financial statement of Ms Hearn, filed 30 November 2017; and
8.3.Affidavit of Mr Hearn, filed 6 December 2017.
The documents upon which the husband relies include:
9.1.Affidavit of Mr Woolcott, filed 23 November 2017;
9.2.Affidavit of Ms Woolcott, filed 29 November 2017; and
9.3.Affidavit of Mr Woolcott, filed 14 December 2017.
The material exhibited to the husband’s affidavit was initially 875 pages but was reduced to 629 pages when material in relation to valuation issues of the E Town property no longer needed to be considered.

SHORT HISTORY

The husband was born in 1972.
The wife was born in 1973.
The parties married in 1996.
The parties’ first child, X, was born in 2001, and is 16 years of age.
The parties’ second child, Y, was born in 2003, and is 14 years of age.
The parties separated in March 2011.

CREDIT

Neither party made any submission in relation to credit and no significant issue turns on an issue of credit.

THE HUSBAND’S CONSUMPTION OF ALCOHOL

The wife gave evidence relevant to her assertion that the husband has in the past drank alcohol to excess. That evidence includes:
18.1.In February 2005, the wife says that the father passed out on his office floor after drinking and did not return until 6am the next morning;
18.2.In August 2006, the wife says that the parties were due to attend a parents’ information night which the father missed due to being intoxicated. The husband had been warned about the drinking by his work;
18.3.In November 2009, the wife says that she arranged for the husband to begin seeing a counsellor for his alcohol abuse, abusive behaviour and cocaine use. Husband attended but did not continue with counselling;
18.4.In February 2010, the wife says that the husband arrived one Saturday morning drunk at 1am with a gash above his left eye;
18.5.In March 2010, the wife says she begun extra night shifts, however, she ceased doing so after a time because of her concerns about what was happening in the home whilst she was not there, including the husband holding parties and drinking;
18.6.On 12 March 2010, the wife says that the husband arrived at home around 3am and was verbally abusive to her, pushing her with his hands against the wall. The wife left and stayed with her parents for three days;
18.7.In November 2010, the husband returned home early one morning intoxicated, calling the wife a slut and a bitch and punching a hole in the wall;
18.8.On the weekend of 12 March 2011, the husband had a party while the wife was away;
18.9.At the beginning of 2012, the wife says X told her that his father tried to choke him and on a separate occasion had punched a taxi driver while intoxicated;
18.10.On 11 November 2013, the children reported to the wife that, notwithstanding the orders restraining him from doing so, the husband has still been drinking with the children in his care;
18.11.On 6 December 2013, the wife observed the husband consuming alcohol at a school function. The husband says it was only three schooners;
18.12.On 3 January 2014, the children reported to the wife that the husband had consumed alcohol whilst visiting wineries during school holiday time and that his partner had to drive the motor vehicle; and
18.13.On 10 February 2014, the wife says that the children reported to her that the husband and his new partner consumed a significant amount of alcohol and got in a fight with screaming and yelling.
I note in passing that the evidence about the level of alcohol consumption in the wife’s household is surprising given the wife’s complaint about the husband’s use of alcohol.
The issue in relation to the husband’s consumption of alcohol is only of marginal relevance to any issue that has to be decided in the parenting proceedings. The husband has agreed to orders restraining him from consuming alcohol to excess, consuming any illicit or recreational drugs or from storing alcohol in any room in which the children are to sleep at any time when the children or either of them are in his care. The wife is seeking a “guillotine order” (discussed below) in the event that the husband breaches the restraining order but that issue does not require an exploration of the husband’s previous drinking habits.
It was suggested by counsel for the wife that this evidence might also be relevant for the purposes of placing weight upon the wife’s contributions in the role of homemaker and parent. The only basis that that could be so is if the wife established conditions similar to those discussed in Kennon & Kennon (1997) FLC 92-757 and she has not done so.
Accordingly, I do not need to determine any controversy relating to the husband’s previous drinking habits.

DETAILED CHRONOLOGY

I set out in this chronology the wife’s assertions in relation to the husband’s conduct which I generally accept. These facts were generally admitted primarily in relation to parenting issues. Some of the behaviour admitted by the husband is relevant to the issue of his contribution in the role of homemaker and parent.
The husband was born in 1972.
The wife was born in 1973.
The parties married in 1996.
In 1997, the parties purchased the property at G Street, Suburb H. They paid $402,000; paying five per cent deposit and stamp duty by way of joint savings.
Between 2000 and 2001, the parties renovated the Suburb H property funded by borrowings from NAB.
The parties’ first child, X, was born in 2001.
The parties’ second child, Y, was born in 2003.
In 2004, the parties borrowed $60,000 from NAB and established J Pty Ltd with the wife as sole director and shareholder.
In January 2005, the wife was diagnosed with post-natal/situational depression
In March 2005, the husband commenced employment with K Ltd on a gross salary of approximately $190,000, excluding superannuation.
In September 2005, the wife had surgery on her lower back and spent five nights in hospital.
In late September 2005, J Pty Ltd was sold.
In October 2005, the parties borrowed $370,000 from NAB. The husband says these funds were used to pay down and consolidate debts associated with J Pty Ltd, the house renovations and the parties’ joint debts.
In the first half of 2006, the parties sold the Suburb H property for $915,000. The husband says that net proceeds from the sale were $130,000, while the wife says that the net proceeds were approximately $205,000. Nothing turns on that difference.
On 22 May 2006, the husband purchased shares in the sum of $46,960.85 through his CommSec account using some of the net proceeds of the sale from the Suburb H property.
In August 2006, the parties purchased an off the plan block of land at L Street, M Town, QLD for $750,000 and paid a $5,000 deposit from the net proceeds of the sale of the Suburb H property.
The wife returned to work in 2007, doing one shift per week.
In the second half of 2007, the parties purchased the E Town property for approximately $830,000 in the wife’s sole name using a deposit of $83,000 from the sale of shares and the husband’s CommSec account and the paternal grandmother advancing the parties $20,000. The parties borrowed $759,976.07 by way of mortgage from N Bank. The parties were joint borrowers as the wife did not have sufficient income to borrow in her sole name.
In August 2007, the E Town property was tenanted with rental income of $575 per week.
In October 2007, the parties sold the M Town property for $1.25 million with net proceeds of sale being $398,658.50.
On 5 November 2007, the parties repaid the paternal grandmother $20,700, being the principal sum plus interest.
On 26 November 2007, $20,000 was deposited into the N Bank joint loan account.
In 2008, the husband received a tax refund of $7,809.26.
In April 2008, the parties obtained an investment loan from N Bank in the sum of $200,000, using the funds predominantly to purchase shares with a view to trading to make a profit.
In September 2008, the tenants vacated the E Town property.
In February 2009, demolition works commenced on the E Town property.
The paternal grandmother deposited $50,000 into the parties’ account to prove to the builder they had sufficient funds to pay him for the E Town property work that he was to complete on 23 February 2009.
In April 2009, the husband was made redundant from K Ltd and received a net redundancy payment of approximately $168,283.
On July 2009, the husband commenced employment with O Pty Ltd as a project director/development manager, and earned an income of $190,000 inclusive of superannuation.
In 30 July 2009, on the husband’s case, the paternal grandmother loaned the parties a further $5,000 for costs of renovations to the E Town property.
In 2010, the husband received a tax refund of $7,398.56.
In March 2011, the parties separated under one roof.
The husband continued to make mortgage repayments for E Town and paid his salary into the joint NAB account in order to meet the family’s day to day living expenses. He also met the ongoing costs for the wife’s vehicle.
In May or June 2011, the husband vacated the E Town property and moved into a flat at Suburb P.
From March to August 2011, the husband returned to the E Town property every weekend to work on the renovations and to spend time with the children. Husband continued to meet the mortgage repayments on the E Town property.
On 12 August 2011, the parties signed a document titled “Binding Financial Agreement between [Mr Woolcott] and [Ms Hearn]” regarding property, parenting and child support. The terms of this financial agreement are set out in Schedule 3. This agreement did not satisfy the formal requirements under the Act and neither party obtained legal advice about the terms of the agreement.
On 18 August 2011, the wife and children vacated the former matrimonial home and moved to a rental property at Suburb C. The E Town property was listed for sale with Q Real Estate and the parties obtained extra finance from N Bank up to $65,000.
On 21 August 2011, the husband moved into the E Town property and carried out some work to the property with assistance from his father and brother.
In September 2011, the wife began cohabiting with Mr Hearn, her current husband. Mr Hearn’s two children, R aged 14 and S aged 16, lived with Mr Hearn and the wife each alternate week and at other defined times.
In October 2011, the husband excluded the wife from the family health insurance.
In November 2011, the husband had tenants at the E Town property and received between $300 and $325 per week per tenant.
In 2012, the husband received a tax return of $7,725.20. The wife sold the family car and paid the husband $2,000 from the proceeds of sale to pay the agent’s marketing costs and the wife retained $9,000.
From late 2011, the wife says that the husband begun spending less time with the children.
In the beginning of 2012, the children spent from Thursday afternoon until Monday morning with the father each alternate weekend.
In February 2012, the E Town property was taken off the market.
In February 2012, the husband was made redundant from O Pty Ltd and received a redundancy payment of $29,577.31. Husband transferred these funds to his NAB account, paid out the V Bank personal loan of $17,106 and paid $5,390.95 onto NAB visa.
In April 2012 the parties had a conversation about the husband buying out the wife’s interest in the property for $350,000 and about how that sum was calculated. The husband had discussions with N Bank about refinancing the mortgage to pay the wife $350,000.
On 19 April 2012, the parties divorced.
In May 2012, the parties relisted the E Town property and were unable to sell it after three months. The husband made an application to N Bank to refinance the mortgage.
On 19 June 2012, the wife sent the husband an email and consent orders were made on 10 August 2012 (discussed below).
In August 2012, the wife was diagnosed with a brain aneurysm.
On 17 August 2012, N Bank obtained a valuation of the property setting it at $1.5m. Husband continued to meet all of the parties’ obligations in respect to mortgage and credit card debts.
On 14 September 2012, the E Town property was transferred to the husband and the wife received $350,000. The husband discharged the previous mortgage.
In 2012, the wife married Mr Hearn.
In 2012, the wife had the brain aneurysm surgically removed.
In 2013, the husband received a tax refund of $17,734.05.
In January 2013, the wife and Mr Hearn went on a cruise, leaving the children in the care of their father. Upon her return, the children told the wife that they did not want to stay at their father’s ever again.
From 28 January 2013 to 17 February 2013, the wife took a holiday to Asia with Mr Hearn and spent approximately $8,000. The children stayed in the care of their father during that period. X subsequently complained to the wife that his father hurt him by hitting him and grabbing his arms.
From March 2011 to March 2013, the husband did not pay child support but the husband says the wife had access to a joint account (This is discussed in more detail below).
On 7 March 2013, the wife spoke to the police about her concerns about the husband’s behaviour towards the boys.
On 11 March 2013, the wife requested the husband pay her $36,000 in arrears of child support arising from what the wife says were obligations under “the Binding Financial Agreement”.
On 13 March 2013, the school called the wife regarding X’s poor behaviour.

On 14 March 2013, the wife sent an email to the husband requesting that $36,000 be paid in way of child support obligations and that the children’s time arrangement adhere to that which was set out in the agreement signed on 12 August 2011.
On 15 March 2013, the wife sent the husband an email requesting that $37,500 be paid by 5pm that day.
On 18 March 2013, X complained again to his mother about staying with his father.
On 12 April 2013, the wife began to receive child support pursuant to an assessment.
On 6 May 2013, the wife filed an initiating application.
In June 2013, the wife travelled to Asia spending approximately $4,000.
In July 2013, the wife travelled with the family to T Town spending approximately $6,000.
In July 2013, the wife travelled to Asia spending $4,000.
In October 2013, the wife travelled with the children at a cost of approximately $30,000.
On 4 November 2013, Rees J made interim orders regarding parenting for the children to spend five nights per fortnight with the father, plus holiday and special occasions, orders which have been adhered to since that date save that X last saw his father in December 2017.
In 2014, the husband received tax refund of $15,075.12.
On 5 February 2014, Rees J made orders granting leave to review the August 2012 consent orders and set those consent orders aside.
In 2015, the husband received a tax refund of $18,518.39.
In September 2015, Ms U moved into the husband’s residence as a tenant.
In November 2015, the husband obtained a personal loan from V Bank in the sum of $30,000, which he applied $27,500 to reduce the credit card debt.
In 2016, the husband received a tax refund of $18,005.32.
In 2016, the paternal grandparents loaned the husband $59,000 for legal fees.
In February 2016, the husband commenced a relationship with Ms W, the parties living together but having separate bedrooms. The mother says this relationship commenced in April 2015.
On 25 July 2016, X told his mother that his father said to him, that you are a “whinging bitch like your mother”.
Between September 2016 and 2017, the paternal grandmother loaned the husband the sum of $39,100.
In 2017, the husband received a tax refund of $16,144.80.
On 3 April 2017, X informed the wife that he was sleeping in the master bedroom suite at the E Town property.
On 27 October 2017, the wife says that she received text messages from X at 11:45pm. There was an incidence between X and his father which is discussed below.
On 12 November 2017, the husband borrowed $20,000 from the paternal grandmother.
On 7 December 2017, the husband picked X up from work and there was a verbal altercation between them. This altercation is discussed below.
From 7 December 2017 until now, X has only spent one night with the husband, namely, Christmas 2017.
On 7 February 2018, X emailed his father regarding the December altercation and the father replied the next day. This exchange is discussed below.

PARENTING ISSUES

Approach

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when 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.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
Whilst I generally take statutory considerations into account, the parents are in dispute on only a small but significant part of the parenting arrangements. The first relates to the time that X spends with his father. X is 16 years old. His expressed views carry considerable weight.
In relation to the other contested orders sought by the wife, I am required to make orders which are proper and in doing so, have regard to the best interest of the child as a paramount consideration.
The wife seeks that no order be made in the husband’s favour for X to spend time with him. It is common ground that X currently does not wish to have face to face time with his father. The husband wishes the court to make an order for time notwithstanding he concedes that that order is unlikely to be complied with in the short term.
The husband has agreed upon a number of conditions connected to the children spending time with him relating to his use of alcohol and drugs, the children’s accommodation and the occupants of the husband’s home when the children are with him. The wife seeks that any order for time in the husband’s favour be suspended, and more restrictive orders substituted if the husband breaches any of the conditions to which he is consenting. The husband resists this “guillotine” order.

Is an order that X spend time with his father in X’s best interests?

X hasn’t spent time with his father since October 2017 apart from overnight on Christmas evening.
On 27 October 2017, a Halloween party was planned for X at the husband’s home. That evening an incident occurred between X and his father. The wife gives evidence of conversation and text messages she had with X about the incident in paragraph [73] and [74] of her affidavit filed 30 November 2017. The wife says that X had told her that the husband had been drinking at the party, and when X got into an argument with the husband’s girlfriend’s friend, the husband had hit him in the face and put his hand firmly around his neck. It is common ground that there was a conversation between the wife and X in relation to what had happened at the party.
In oral evidence, the husband confirmed that there had been an incident of a physical nature between him and X on the Halloween party in October. The husband confirmed that his open hand came into contact with X’s head, however, he explained that this was in the context of X bobbing and weaving in an attempt to avoid his father taking hold of him physically.
Following the party, on 7 December 2017, when the husband picked X up from work, there was a verbal altercation between them. X reported to the wife that during this altercation the husband referred to X as a “malicious cunt”’ because he had told his mother about the Halloween party incident and she had referred to it in an affidavit. The husband denied using those words.
In February 2018, X recalls the evening of 7 December 2017 in the following way:
Hi Dad,
Thank you for giving me space and not making it hard for me.
Until we resolve some of our issues I don’t feel that I can live with you.
The words you said to me when you picked me up from Work in December [sic] has hurt me too much and I struggle to get over it. I’m sorry but I’m not in a position mentally to talk to and see you. I am happy to communicate via email for the moment.
X
When put to the husband as to what words X was referring to when he said that something his father said “hurt me too much”, the husband conceded that he may have used the word “malicious” in reference to X disclosing to his mother what had happened at the Halloween party. I didn’t accept the husband’s evidence that he hadn’t used the words X had told his mother he had used. I find the husband was very angry with X and swore at him.
The husband also agreed that his response to the email of 7 February 2018 was a response which placed blame on X for what had happened. It was in the following terms:
How can we resolve anything when you aren’t around? You seem to take me for granted all the time and that [sic] part of the issue. You don’t talk to me about anything and complain to your mother and that is what our issue is.
Since this incident X has only spent one evening at the husband’s home, that being Christmas night.
Senior counsel for the husband unsuccessfully attempted to obtain the concession from the wife that if orders were put in place for X, even though it was agreed they would not be immediately complied with, that would be in X’s best interests because those orders would put some pressure upon X to maintain a relationship with his father which the wife acknowledges is an important thing to attempt to do. The wife’s evidence was that if X feels that he is being coerced into something that he does not wish to do, then the chances of him doing it will be far less, the husband’s purpose would not be achieved, and in fact the possibility of that continuing relationship would be further damaged. The husband did not accept the wife’s assessment as to the effect of his proposed orders.

The “guillotine” order

The parties agreed on the following orders:
7.     At any time when the children, or either of them, are in the care of the Father, that Father be restrained from:
7.1Consuming alcohol to excess;
7.2Consuming any illicit or recreational drugs;
7.3Physically disciplining or otherwise physically chastising the children or either of them;
7.4Storing alcohol in any room in which the children are to sleep; and
7.5Having lodgers, boarders or tenants living or staying in the property where the children live.
8.     The Father shall provide each individual child with a separate dedicated lockable bedroom to sleep or otherwise occupy.
9.      The Father be restrained from at any time, utilising the children’s bedrooms for any form of short or long term rental/holiday accommodation including, but not limited to, AirBnB, Stayz, Gumtree and rentals of any kind, whether or not the children are in his care.
The conditions to which the parties finally agreed were different to what the wife originally sought. As indicated in Schedule 1, the wife sought a blanket condition that the husband not chastise Y. In final submissions, the wife altered her application so that that was limited to only physical chastisement and the husband accepted that condition.
The wife applied for an order that in the event that the husband failed to comply with these orders then the order for equal shared parental responsibility be suspended and the orders providing that Y spend time with his father become more restricted until such time as the husband is able to demonstrate full compliance with the orders to which I have just referred.
The husband opposed this “guillotine” order which the wife sought.
Whilst the application by the wife for a guillotine order is unusual, given the history, I understand why she makes the application. Up until the commencement of the hearing, the husband had accepted that an order be made in the form of the application sought by the wife.
Cross examination of the wife demonstrated how it would be difficult to implement all of what the wife is proposing. Once the wife had unilaterally made the decision that a condition of the orders had been breached and had suspended contact, the way back from that position would be problematic in respect of some of the conditions. This is particularly so in relation to any use by the husband of drugs or alcohol. In relation to a suspension she had imposed because she had formed the view that the husband had involved himself with drugs or alcohol, she suggested that the husband would have to undertake appropriate therapeutic counselling before she would reinstitute time. The wife suggested that if she suspended time because the husband had physically disciplined Y, the husband would have to participate in an anger management course before she agreed to the suspension that she had imposed being lifted. It is apparent that any guillotine orders that led to outcomes like those just described are fraught with difficulty.
Breaches of conditions of orders in relation to those matters are more appropriately a matter for an application for contravention. If the breaches are extreme, the wife could suspend time and rely upon the seriousness of the breach as a reasonable excuse against a contravention application and make an application in the meantime for a change of the orders. It was for these reasons I have said there was no need to determine any controversy relating to the husband’s previous drinking habits.
The husband breaching conditions in relation to tenants and lockable bedrooms and storage of any alcohol in any room in which the children are to sleep are more objectively verifiable and would be breaches the husband could more easily demonstrate he has subsequently corrected.
Accordingly, I find it proper to only make the “guillotine” order in relation to a breach of conditions in relation to the storage of alcohol, lodgers, boarders, tenants and the bedrooms.

PROPERTY

Approach

In this matter my task is to:
139.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
139.2.Determine whether it is just and equitable to make an order altering those interests having regard to relevant contributions and s 79(4)(d) – (g) considerations; and
139.3.If so,
139.3.1.Assess what alternation should be made on contributions;
139.3.2.Consider what alteration should be made based upon s 79(4)(d) – (g) considerations; and
139.4.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

Two pools?

The first issue that arose was whether or not the parties’ respective superannuation interests should be placed into a pool that was separate from all of the other assets (including an agreed add back) and liabilities of the parties.
In Coghlan & Coghlan (2005) FLC 93-220, the majority at [61] said:
Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where….the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1)….or there are features about interest which leads the Court to conclude that this would be an appropriate approach.
There is no unusual feature in relation to either of the parties’ superannuation interests. They are both in accumulation funds. This is not a case where the value of the interest is calculated in accordance with the regulations at a very significant amount, and where the value is unknown at a future date of receipt, as is the case in defined benefit interests and other types of superannuation interests. Since Coghlan was decided, the reported cases indicate that there is usually no issue between the parties in respect of placing the value of accumulated superannuation interests as assets together with other assets on the balance sheet. There is no need to segregate these two funds into a second pool in order to properly consider contributions made to their acquisition or the impact the superannuation assets have when considering all s 75(2) matters. Senior counsel for the husband did not identify any particular feature of the superannuation interests in this case that would persuade me that a two pooled approach was appropriate. Like any superannuation, given the parties’ age, it will be some time before either party will be able to access their superannuation interests.
The husband’s alternate application, in part, seeks a splitting order so that the wife takes $81,620.50 of husband’s superannuation interest. Again, there is no need to place the superannuation interest into a separate pool in order to consider the merit of that application.
Accordingly, I agree with the wife’s submission that a one pooled approach should be adopted in this case.

The table

After the close of evidence, the parties tendered a joint balance sheet (Exhibit 17). The settled balance sheet is set out below. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers following the table.

Assets
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	H	D Street, E Town	$2,200,000	$2,200,000	Agreed	$2,200,000
2	W	Z Bank a/c …45	$989	$989	Agreed	$989
3	W	Z Bank a/c …46	$14	$14	Agreed	$14
4	W	Z Bank a/c …44	$2,013	$2,013	Agreed	$2,013
5	W	Z Bank a/c …48	$4	$4	Agreed	$4
6	W	Z Bank a/c …20	$0	$0	Agreed	$0
7	W	Z Bank a/c …10	$0	$0	Agreed	$0
8	W	Z Bank a/c …83	$2	$2	Agreed	$2
9	W	V Bank Online Saver a/c …27	$2	$2	Agreed	$2
10	W	V Bank a/c …25	$20	$20	Agreed	$20
11	H	NAB a/c …78	$141	$141	Agreed	$141
12	H	N Bank a/c …93	$222	$222	Agreed	$222
13	H	Company AA a/c …18	$0	$0	Agreed	$0
14	H	Company BB a/c …03	$0	$0	Agreed	$0
15	H	CommSec shares	$1,485	$1,485	Agreed	$1,485
16	H	CMC shares	$17,051	$17,051	Agreed	$17,051
17	W	Household contents	$20,000	$20,000	Agreed	$20,000
18	H	Household contents	$5,000	$5,000	Agreed	$5,000
19	W	CC P/L	nk	$0	Determined	$0
20	W	Possible interest in DD Limited	nk	$0	Determined	$0
21	W	Possible interest in DD Limited banking a/c …45	nk	$0	Determined	$0
22	H	Van motor vehicle	$32,000	$32,000	Agreed	$32,000
23	W	German motor vehicle	$65,000	$65,000	Agreed	$65,000
24	W	Jewellery	nk	Nil	Determined	$0
25	W	Wine collection	nk	Nil	Determined	$0
26	W	Previous payment to wife at settlement	$350,000	$350,000	Agreed	$350,000
27	W	Motor vehicle retained by wife at settlement	$11,000	$0	Determined	$0
28	W	Rental income retained by husband in respect of E Town property since separation	$0	nk	Determined	$0
29	W	EE Super	$82,043	$82,043	Agreed	$82,043
30	H	F Super	$245,284	$245,284	Agreed	$245,284
31	W	Assets, liabilities, superannuation and resources of S Hearn	nk	$0	Determined	$0
Total assets			$3,021,270
Liabilities
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
32	H	N Bank mortgage	$1,125,006	$1,125,006	Agreed	$1,125,006
33	J	Loan from Mr & Ms Woolcott Snr	$55,000	$50,000	Determined	$50,000
34	H	NAB Visa a/c …30	$12,183	$12,183	Agreed	$12,183
35	H	NAB Visa a/c …09	$14,918	$14,918	Agreed	$14,918
36	H	American Express a/c …04 (1)	$1,383	$1,383	Agreed	$1,383
37	H	American Express a/c …04 (2)	$24,001	$24,001	Agreed	$24,001
38	H	V Bank personal loan a/c	$26,399	$26,399	Agreed	$26,399
39	H	Loan from Mr & Ms Woolcott Snr	$0	$0	Agreed	$0
40	H	Outstanding legal fees	$0	$0	Agreed	$0
41	H	Van Finance	$20,354	$20,354	Agreed	$20,354
42	W	V Bank Visa	$2,169	$2,169	Agreed	$2,169
43	W	German car Finance	$83,259	$83,259	Agreed	$83,259
44	W	Loan from Mr Hearn	$0	$0	Agreed	$0
Total liabilities			$1,359,672
Total net assets			$1,661,598

Item 1

Throughout the course of this litigation there were considerable contentions in relation to the practical completion of, and building defects in respect of, the E Town property. Prior to there being a necessity to rule on those contentious matters, the parties, pursuant to s 191 of the Evidence Act 1995, agreed that the value of the E Town property was in the sum of $2,200,000.
If the wife’s application is successful, or the husband’s alternate application for the sale of the E Town property becomes necessary, the parties have agreed that there should be a mechanism to set a reserve price at an auction and otherwise resolve any issue in relation to the selling price. They have further agreed that the property would be sold “as is”, unless they each mutually agree that certain certifications should be obtained or remedial work done, in which case there is also to be an agreement as to how that work would be funded and how the person(s) funding the work would be reimbursed from the proceeds of the sale.

Items 19, 20 and 21

The husband sought to have added onto the balance sheet assets that he asserted the wife had in a company CC Pty Ltd, DD Limited and a DD Limited banking account ending …45.
The wife’s evidence in relation to CC was that it was not a trading company and she was not receiving income from it. That assertion seems to be corroborated by her most recent tax return. I was not taken to any bank records that would indicate that there was any money in the bank account referred to in item 21. It is not appropriate to assign any value to these items against the wife on the balance sheet.

Item 24

There is no evidence that the wife has any jewellery. She wasn’t asked any questions in cross examination about jewellery and, accordingly, there is no basis to place any value against item 24 on the balance sheet.

Item 25

The wife and Mr Hearn were asked questions about their “wine collection”. Neither of them had provided or disclosed detailed information regarding the wine they had in their home. It was put to them that due to their expenditure on wine amounting to approximately $100,000 over the course of five years that they had amassed a wine collection of some value. It was suggested in the cross examination of the wife and her husband that they had a valuable wine collection in their home. They both gave consistent evidence that they currently had about 50-60 boxes of wine in their home. The wife indicated that those boxes contained between half a dozen and a dozen bottles each. Mr Hearn agreed that in a period from 27 August 2012 to 10 July 2017 he had expended about $97,000 on wine and restaurant meals at wineries. Mr Hearn estimated that about half of that expenditure was on wine and the other half on restaurants at wineries. Both parties gave evidence that their alcohol consumption is one bottle of wine per day and sometimes more than that on occasions. If the parties had consumed that amount of wine over that period, then it is about $27 a day in wine, which is about the quality of wine that they both said they were buying. It is not appropriate to add any value for the wine collection to the balance sheet.

Item 27

The husband seeks that the amount of $11,000 be added back against the wife in relation to a motor vehicle that she took shortly after separation. The uncontested evidence is that she sold that motor vehicle for $11,000 and put $2,000 back in towards the promotion costs for the sale of the E Town property at that time. The remaining $9,000 was expended by her. I infer on general living expenses and the cost of reaccommodating herself. It is not appropriate to add that amount back on the balance sheet.

Item 28

The wife originally asked for an add back in relation to rental income retained by the husband in respect of rooms rented in the E Town property since separation. The wife conceded in submissions that given that she had not presented to the court any quantification of that amount, it was more appropriate that that receipt of income be taken into account in a general way when considering the issue of contributions. Item 28 will be marked as nil on the balance sheet.

Item 31

It is not appropriate to include any asset, liability or financial resource of Mr Hearn on the balance sheet.

Item 33

The husband claims that he owes his parents $55,000. The wife agreed that she knew the husband had received $50,000 from his mother and accepted it as a debt on the balance sheet even though it was statute barred. In relation to the remaining $5,000, she did not dispute that the husband received that amount but her evidence was she had no knowledge that he had done so.
The husband’s mother at [14] of her affidavit gives evidence about a conversation that she says took place between herself and her son in April 2011 where the husband indicated to his mother that he was getting a divorce from the wife and said he wasn’t sure what was going to happen but when settlement was made on the house he would pay back the $50,000. His mother gives evidence that she reminded him at that time that there was an additional $5,000 owing and says that her son acknowledged that was so at that time.
That evidence does not sit comfortably with what subsequently happened between the parties and the negotiations to settle property at that time. In an email exhibited to the father’s affidavit at RW69, the wife sent a spreadsheet on 7 February 2012 to the husband which recorded the debt as $50,000. The husband’s response, acknowledges that $50,000 debt. When the husband came to fill out the Application for Consent Order document in August 2012, he again recorded the debt to his parents at $50,000 (not in the “liability” section of the form but in the “effect of property orders” section). All of that is curious behaviour by the husband if in fact he had been reminded by his mother in April 2011 of the existence of the other $5,000 that was outstanding. Given that the debt of $5,000 is statute barred and the wife opposes it being placed upon the balance sheet, I find it is not appropriate to do so and I find that item 33 should be determined to be the sum of $50,000. I am prepared to accept, based on the evidence of the husband’s mother, that the husband may have a moral duty to pay his mother $5,000 at some future time.

Items 39 and 44

These items relate to monies borrowed by each party respectively for the payment of legal fees. The parties have agreed that legal fees should not be placed upon the balance sheet and, accordingly, agreed that these liabilities should also not be placed upon the balance sheet.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

Legal principles

The High Court in Stanford & Stanford (2012) 247 CLR 108 said at [35] and [36]:
35. It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
At [37] to [40] the High Court in Stanford laid down three “fundamental propositions” which the Full Court in Bevan & Bevan (2013) FLC 93-545 at [73] summarised thus:
1.     Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.     The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.     A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(Original Emphasis)
The High Court in Stanford stated the third proposition as follows:
40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(Footnotes omitted)
And at [41] went on to say:
41. …if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
In Bevan (2013) the Full Court commented at [81] to [89] and [108] and [119]:
81. The third “fundamental proposition” demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done.
82. As we have noted, in many cases the preliminary question is effectively answered in the affirmative by the way the parties present their cases. Nevertheless, it is still necessary for it to be shown that the trial judge has expressly, or by clear implication, answered that question in the affirmative before making an order altering existing interests in property.
83. Answering this preliminary question clearly involves the exercise of judicial discretion since, as was said in Stanford at [36]:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
84. Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
85. This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
86. We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: Woollams & Woollams (2004) FLC 93-195 per Thackray J at [53] and Teal v Teal [2010] FamCAFC 120 per Finn, Boland and Dawe JJ at [70]. The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.
87. It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson & Ferguson where Strauss J said that s 79(2) “is directed to both the questions whether an order should be made at all, and what the order should be, if one is made” (supra at 77,615).
88. This understanding of the interplay between ss 79(2) and 79(4) accords with the analysis of Martin Bartfeld QC in his paper entitled “Stanford and Stanford – Lots of Questions – Very Few Answers”. In that paper, which we drew to the attention of counsel, Mr Bartfeld opined that:
49… there is scope for taking into account the factors under s 79(4) in the exercise of the [s 79(2)] discretion. This can be accomplished, it is submitted, by treating the contribution factors and the factors under s 75(2) as having two simultaneous characteristics;
a.A discretionary characteristic, which is used to identify those matters which are relevant to enliven the exercise of the discretion. Thus the fact that a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party’s assets may found a basis for finding that it is just and equitable for an order to be made; and
b.An evaluative characteristic, which is used to measure the weight or to quantify the effect of a particular contribution.
50.The problem of conflation can easily be overcome by clearly identifying the use to which a factor is being put.
89. In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. Ultimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues.
….
108. Although we accept that the court’s jurisdiction can be extinguished only when its power is exhausted by the making of final orders or by a binding financial agreement, the proper exercise of the jurisdiction can include the dismissal of an application because it is not just and equitable to make any order. Furthermore, a decision to dismiss can be made for reasons not referable to s 79(4) since, as the High Court said in Stanford at [40] (original emphasis):
To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
….
119. In our view, if the three “fundamental propositions” can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work whilst their relationship was intact.
120. This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made. Long experience in this jurisdiction teaches that there will be cases in which other factors will be present that would make it just and equitable to make an order inconsistent with a previous understanding, even one reached after separation. But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests. This reasoning is entirely consistent with what was said by the Full Court in Woodcock v Woodcock (1997) FLC 92-739 at 83,968 to 83,969.
(Emphasis in original)
When considering the relevance of the previous agreements reached between the parties, the Full Court in Maine & Maine (2016) 56 Fam LR 500 made the following observations at [18] and [19]:
18. The relevance and significance of informal agreements entered into between parties to a marriage in subsequent proceedings pursuant to s 79 of the Act is well settled. In Woodland and Todd, the Full Court said:
38. Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing.
39. In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties’ assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment. A consideration of these matters might well be necessary in order to provide a background to the parties’ understanding of what was a just and equitable settlement at the time. However, and perhaps more significantly, it would generally be necessary for the court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.
19. It has later been said, for example, that “an agreement’s failure to be ‘binding’ in the s 90G sense renders its use in Part VIII proceedings to be very limited; specifically it does not operate as a bar to orders made under that Part”. Importantly, those decisions can be seen to be entirely consistent with what the High Court later said in Stanford (above), which, in our view, bears repeating here:
41.…if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Part VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. … These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
(Original emphasis and footnotes omitted)

That X live with the Mother.
That X spend time and communicate with the Father by agreement between the parties and in accordance with X's wishes.
That at any time when the children or either of them are in the care of the Father, that Father be restrained from:
7.1.Consuming alcohol to excess;
7.2.Consuming any illicit or recreational drugs;
7.3.Physically disciplining or otherwise physically chastising the children or either of them;
7.4.Storing alcohol in any room in which the children are to sleep; and
7.5.Having lodgers, boarders or tenants living or staying in the property where the children live.
That the Father shall provide each individual child with a separate dedicated lockable bedroom to sleep or otherwise occupy.
That the Father be restrained from at any time, utilising the children’s bedrooms for any form of short or long term rental/holiday accommodation including, but not limited to, AirBnB, Stayz, Gumtree and rentals of any kind, whether or not the children are in his care.
That in the event the Father fails to fully comply with Orders 7, 8 and/or 9, then Orders 1, 2, 3, 4, 12 and 13 are suspended and:
10.1.The Mother shall, for the period of such suspension, have sole parental responsibility for the children;
10.2.Y shall live with the Mother at all times during the period of such suspension except for the following periods when he shall spend time with the Father:
10.2.1.Wednesdays from 3.00pm to 6.00pm; and
10.2.2.Saturdays from 9.00am to 5.00pm;
10.3.All changeovers during the period of such suspension shall occur with the Father collecting Y from and returning Y to outside the Mother’s residence; and
10.4.Orders 10.1, 10.2 and 10.3 shall remain in force until such time, as the Father is able to demonstrate full compliance with Orders 7, 8 and 9 collectively.
That pursuant to s.68B of the Family Law Act 1975, the Father be restrained from entering onto the property at B Street, Suburb C or any other home at which the Mother may reside from time to time, at any time, or for any purpose.
That all changeovers for the purposes of these Orders, except when Order 10 applies, shall occur at the school attended by Y or, if Y is not attending school, then the parent to have care of Y will collect Y from outside the other parent's residence.

School Holidays

That for the purposes of school holiday periods and unless otherwise agreed:
13.1.School holiday periods are defined as commencing at the end of school on the last day of the Term for students applicable to the school that Y attends from time to time and shall conclude at the start of school on the first day school recommences for students applicable to the school that Y attends from time to time;
13.2.The time Y lives with the Mother and Father respectively pursuant to Orders 3, and 4 above, shall be suspended during the school holiday periods;
13.3.The time Y lives with the Mother and Father respectively pursuant to Orders 3 and 4, and subject to Orders 7, 8 and 9 above shall recommence at the start of school on the first day school Term recommences for students applicable to the school that Y attends from time to time. The parent with whom Y did not live immediately prior to the school holiday period, shall have Y in his or her care in the first week of the new school Term;
13.4.For the first half of the school holiday period, Y shall live with the Mother in odd numbered years, and with the Father in even numbered years; and
13.5.For the second half of the school holiday period Y shall live with the Mother in even numbered years, and with the Father in odd numbered years.

Special Occasions

Christmas

That unless otherwise agreed and notwithstanding any other Order, in odd numbered years Y shall live with:
14.1.The Mother from 9.00am on 24 December to 11.00am on 25 December; and
14.2.The Father from 11.00am on 25 December until 4.00pm on 26th December.
That unless otherwise agreed and notwithstanding any other order, in even numbered years Y shall live with:
15.1.The Father from 9.00am on 24 December until 11.00am on 25 December; and
15.2.The Mother from 11.00am on 25 December until 4.00pm 26 December.

Birthdays

That unless otherwise agreed on Y's birthday the parent who is not due to care for him that night pursuant to these Orders shall spend from 5.00pm until 8.00pm with Y.
That unless otherwise agreed on the Father's birthday in the event that the Father is not due to care for Y that night pursuant to these Orders, the Father shall spend from 6.00pm until 8.00pm with Y.
That unless otherwise agreed on the Mother's birthday in the event that the Mother is not due to care for Y that night pursuant to these Orders, the Mother shall spend from 5.00pm until 8.00pm with Y.

Father's Day

That in the event that Father's Day falls on a day upon which Y would otherwise live with the Mother, the Mother's time with Y shall be suspended from 5.00pm the day before Father's Day until 9.00am the following Monday and Y will spend that suspension period with the Father.

Mother's Day

That in the event that Mother's Day falls on a day upon which Y would otherwise live with the Father, the Father's time with Y shall be suspended from 5.00pm the day before Mother's Day until 9.00am the following Monday and Y will spend that suspension period with the Mother.

Contact details and Communication

That the Mother and the Father do all things necessary to ensure the other parent is:
21.1.Provided with a residential address and telephone number upon which the children can be contacted when in the care of the other parent; and
21.2.Notified immediately and updated of any change in residential address or telephone number upon which the children can be contacted when in the care of the other parent.
That each parent will facilitate communication between the children and the parent not due to care for the children. Each parent will not prevent forms of communication at reasonable times including FaceTime, text messages, email and telephone calls.
That each parent is to notify the other parent, within one (1) hour of any serious injury or illness suffered by one of the children whilst in the care of that parent.
That each parent shall have equal access to the school newsletters, announcements, notes and student reports. and each parent shall be responsible for ensuring the children's school(s) and other service providers have their correct contact details.

Passports

That the Mother shall hold the Passport of X and the Father shall hold the Passport for Y.

Overseas Travel

That in the event that either the Mother or the Father wishes to have the children leave the Commonwealth of Australia for a holiday, then:
26.1.He or she shall ensure that all travel is approved by the other parent in advance of the date of travel;
26.2.The parent wishing to have the child/ren travel outside of Australia shall provide the other parent with a copy of the travel itinerary at least one (1) week prior to departure and provide to the other parent a copy of the flight/Cruise tickets for themselves and/or the children at least one (1) week prior to departure;
26.3.The parent not travelling shall make available to the other parent, at least one week prior to departure, the relevant child's Passport; and
26.4.The parent having the child/ren leave Australia shall ensure the child's Passport is returned to the other parent within fourteen (14) days of returning to Australia.
That the Father pay the Mother's costs of and incidental to these proceedings.

Property

That an Order by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 8 of this document in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
That within fourteen (14) days of the date of these Orders, the Husband do all things and sign all documents necessary to cause the property situate at and known as D Street, E Town in the State of New South Wales ('the E Town property') being the whole of the land contained in Folio Identifier … to be sold by public auction, such auction to take place no later than twelve (12) weeks from the date of the making of these Orders, and to cause the proceeds of sale to be disbursed as follows and in that priority:
2.1.In payment of agent's commission, advertising expenses and legal expenses of the sale;
2.2.In payment of the amounts necessary to discharge all mortgages secured on title to the E Town property;
2.3.In payment of costs incurred in relation to the nomination of a Real Estate Agent (if any), in payment of costs incurred in relation to the nomination of a Solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee (if any)
2.4.67.6 per cent to Wife; and
2.5.The balance then remaining to the Husband.
That, for the purposes of Order 2 above, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee.
That, for the purposes of Order 2 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Solicitor appointed by the President of the Law Society of New South Wales or his/her nominee.
That, for the purposes of Order 2 above, the sale price for the property shall be as agreed between the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be at a price determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee.
That pending settlement of the sale of the E Town property the Husband shall:
6.1.Keep the E Town property in good order and repair;
6.2.Cooperate in all reasonable way with requests by real estate agents and/or prospective purchasers, including but not limited to:
6.2.1.Providing keys to obtain access;
6.2.2.Doing all things necessary to facilitate access to the E Town property at all reasonable times and facilitating access for inspection without interference; and
6.2.3.Facilitating 'open house' on not less than one occasion each week during the period the E Town property is listed for sale; and
6.3.Maintain the E Town property in a presentable condition so as to facilitate the sale, including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection.
That as between the Husband and the Wife, and subject to the above Orders, the Husband shall retain all interest in and entitlement to:
7.1.All personal property now in his possession or control;
7.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name; and
7.3.All interests in life insurance policies and superannuation funds standing in his sole name.
That as between the Husband and the Wife, and subject to the above Orders, the Wife shall retain all interest in and entitlement to:
8.1.All personal property now in her possession or control;
8.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name; and
8.3.All interests in life insurance policies and superannuation funds standing in her sole name.
That pursuant to Section 81 of the Family Law Act 1975 the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
That the Husband pay the Wife's costs of and incidental to these proceedings.

SCHEDULE 2 (orders sought by the husband)

Parenting Orders

The father and the mother have equal shared parental responsibility in consultation with one another for making decisions on major long-term issues relating to the children included but not limited to:
1.1.Operations;
1.2.Medical procedures and consultations in relation to medical procedures;
1.3.Dental treatment, other than routine checkups and cleaning;
1.4.Physiotherapy;
1.5.Psychological counselling;
1.6.Alternative medical treatment;
1.7.Education;
1.8.Sporting activities and extra-curricular activities, where such activities affect the children's time with the other parent.
The mother have responsibility for making decisions of the day to day issues relating to the children when they live with her, and the father have responsibility for making such decisions for the children when they live with him.
It is noted that it is the intention of the parties that the children live with the mother and father for equal time subject to Orders 6 and 7 below.
That unless otherwise agreed, the children live, during non-school holiday periods, with the mother for a period of seven (7) days and nights commencing Monday, 11 September 2017 and concluding at 9:00am on Monday, 18 September 2017 and continuing each alternate week thereafter.
That unless otherwise agreed, the children live, during non-school holiday periods, with the father for a period of seven (7) days and nights in each two week cycle with the first such week to commence at 9:00am on Monday, 18 September 2017 and concluding at 9:00am on Monday, 25 September 2017.
From and at any time when the children are in the care of one parent, that parent be restrained from:
6.1.Consuming alcohol to excess;
6.2.Consuming any illicit or recreational drugs;
6.3.Physically disciplining ~~or otherwise chastising~~ the children or either of them;
6.4.Storing alcohol in any room in which the children are to sleep; and
6.5.Having lodgers, boarders or tenants living in the property where the children live.
That the father ensure when the children live with him, they each have available to them, to sleep or otherwise occupy their own dedicated separate lockable bedroom.
~~That in the event Order 6 or 7 are not complied with by the father, then the children shall live with the parents as follows:~~
8.1.With the father from the conclusion of school Friday (or 9:00am if the children or any of them is not attending school) until 9:00am Monday each alternate week and continuing each alternate week thereafter, until such time as the father is able to demonstrate compliance with Orders 6 and 7; and
8.2.~~With the mother at all other times.~~
That pursuant to section 68B of the Family Law Act 1975 the father be restrained from entering onto the property at B Street, Suburb C or any other home which the mother may reside from time to time, at any time, or for any purpose.
That all changeovers for the purposes of these Orders shall occur at the school attended by Y, or if the children are not attending school, then the parent to have care of the children or collect the children from outside the other parents residence.

School Holidays

That for the purposes of school holiday periods that unless otherwise agreed:
11.1.School holiday periods are defined as commencing at the end of school on the last day of the term for students applicable to the school that Y attends from time to time and shall conclude at the start of school on the first day school recommences for students applicable to the school that Y attends from time to time;
11.2.Subject to the time the children live with the mother and father respectively pursuant to Order 3 and 4 above shall be suspended during school holiday periods;
11.3.The time the children live with the mother and father respectively pursuant to Orders 3 and 4 and subject to Orders 6 and 7 above shall recommence the first day the school term recommences for students applicable to the school Y attends from time to time. The parent with whom the children did not live immediately prior to the school holiday period, shall have the children in his or her care in the first week of the new school term.
11.4.For the first half of school holiday period, the children shall live with the mother in odd numbered years; and with the father in even numbered years;
11.5.For the second half of the school holiday period the children shall live with the mother in even numbered years; and with the father in odd numbered years.

Special Occasions
Christmas

That unless otherwise agreed and notwithstanding any other Order, in odd numbered years the children shall live with:
12.1.With the mother from 9:00am on 24 December to 11:00am on 25 December; and
12.2.With the father from 11:00am on 25 December until 4:00pm on 26 December.
That unless otherwise agreed and notwithstanding any other Order, in even numbered years the children shall live:
13.1.The father from 9:00am on 24 December until 11:00am to 25 December; and
13.2.With the mother from 11:00am on 25 December until 4:00pm on 26 December.

Birthdays

That unless otherwise agreed on X's birthday the parent who is not due to care for him on that night pursuant to these Orders, shall spend from 5:00pm until 8:00pm with X and Y.
That unless otherwise agreed on Y's birthday the parent who is not due to care for her that night pursuant to these Orders, shall spend from 5:00pm until 8:00pm with Y and X.
That unless otherwise agreed on the father's birthday in the event that the father is not due to care for the children that night pursuant to these Orders, the father shall spend 5:00pm until 8:00pm with X and Y.
That unless otherwise agreed on the mother's birthday in the event that the mother is not due to care for the children that night pursuant to these Orders, the mother shall spend from 5:00pm until 8:00pm with X and Y.

Fathers Day

That in the event that Father's Day falls on a day upon which the children would otherwise live with the mother, the mothers time with the children shall be suspended from 5:00pm the day before father's day until 9:00am the following Monday and the children will spend that suspension period with the father.

Mothers Day

That in the event that Mother's Day falls on a day upon which the children would otherwise live with the father, the fathers time with the children shall be suspended from 5:00pm the day before mother's day until 9:00am the following Monday and the children will spend that suspension period with the Mother.

Contact Details and Communication

That the mother and the father do all things necessary to ensure the other parent is:
20.1.Provided with a residential address and telephone number upon which the children can be contacted when in the care of the other parent;
20.2.Notify immediately of any change in residential address or telephone number upon which the children can be contacted when in the care of the other parent;
20.3.That each parent will facilitate communication between the children and the parent not due to care for the children.
20.4.Each parent will not prevent forms of communication at reasonable times including Facetime, text messages, email and telephone calls.

That each parent is to notify the other parent, within one (1) hour of any serious injury or illness suffered by one of the children whilst in the care of that parent.
That each parent shall have equal access to the school newsletters, announcements, notes and student reports.
Each individual parent will be responsible for ensuring the children's school(s) and other service providers have their correct contact details.

Passports

That the father shall hold the passport for X Y and the mother shall hold the passport for Y X.

Overseas Travel

That in the event that the mother or the father wishes to have the children leave the Commonwealth of Australia for a holiday, then:
25.1.He or she shall ensure that all travel is approved by the other parent in advance of the date of travel;
25.2.The parent wishing to have the child/ren travel outside of the Commonwealth of Australia shall provide the other parent with a copy of the travel itinerary at least one (1) week prior to departure and provide to the other parent a copy of the flight/cruise tickets for themselves and/or the children at least one (1) week prior to departure.
25.3.The parent not travelling shall make available to the other parent, at least one week prior to departure, the relevant child's passports; and
25.4.The parent having the child/ren leave Australia shall ensure the child's passport is returned to the other parent within 14 (14) days of returning to Australia.

PROPERTY ORDERS THE COURT NOTES THAT:

A.The following definitions for the purpose of these Orders:
A.1.“Act” means the Family Law Act 1975 (Cth);
A.2."V Bank personal loan" means V Bank personal loan held in the sole name of the husband.
A.3."Husband's bank accounts" means all bank accounts held in the sole name of the husband, including but not limited to:
A.3.1.National Australia Bank account, account number …78; and
A.3.2.N Bank account, account number …93.

A.4."Husband's credit cards" means all credit card accounts held in the name of the Husband, including:
A.4.1.1.National Australia Bank Visa accounts;
A.4.1.2.MM BANK Credit account;
A.4.1.3.American Express Platinum account; and
A.4.1.4.American Express Green account;

A.5."Husband's contents" means the household contents, furniture, furnishings and effects in the possession of the husband.
A.6."Husband's motor vehicle" means the Van motor vehicle with registration number …
A.7."Husband's shares" means the husband's CommSec and CMC share portfolios.
A.8."Husband's superannuation" means the entitlement of the husband under F Super.
A.9."Joint loan" means the funds loaned to the parties but the husband's parents, Mr and Ms Woolcott Snr.
A.10."German car loan" means the loan from German car Finance to the Wife in respect of the wife's motor vehicle.
A.11."E Town loan" means the loan secured upon the title to the E Town property granted by the husband to N Bank.
A.12."E Town property" means the property situated at and known D Street, E Town, in the State of New South Wales, being the whole of the land contained in Folio Identifier …, together with the improvements, fixtures and fittings erected thereon and/or attached thereto of which the husband is the sole registered owner.
A.13."Van loan" means the loan from Van Finance to the husband in respect of the husband's motor vehicle.
A.14."Wife's bank accounts" means all bank accounts held in the sole name of the wife (including accounts held jointly with her current husband, Mr Hearn) including but not limited to:
A.14.1.1. LL Credit Union accounts, account number …45 and …46;
A.14.1.2. V Bank Plus accounts, account numbers …83, …27 and …25.
A.15."Wife's contents" means the household contents, furniture, furnishings and effects in the possession of the wife.
A.16."Wife's jewellery" means all jewellery in the possession of the wife, including jewellery owned by the wife at the commencement of the relationship, all jewellery gifted to the wife by the husband or any other person and all jewellery purchased by the wife during the course of the marriage.
A.17."Wife's motor vehicle" means the wife's German motor vehicle with registration number ….
A.18."Wife's property settlement" means the property settlement paid to the wife by the husband in the sum of $350,000 in September 2012.
A.19."Wife's superannuation" means the entitlement of the wife under EE Superannuation.
A.20."Wine collection" means all wine stored at the wife's home or in the wife's possession and/or control.

THE COURT ORDERS THAT:

That the Wife's Application for property be dismissed.
That in the alternative the Respondent seeks orders are set out at paragraphs 3 to 19 below.
That within 120 days of the date of these Orders the husband pay to the wife $X;.
That in the event the husband fails to comply with order 3 above the Husband shall thereafter forthwith do all acts and things and sign all documents necessary to effect a sale of the E Town property for the best price reasonable obtainable as set out in the following manner:
4.1.List the E Town property for sale by public auction within 30 days of the expiration of order 3 above with such agent as the parties may agree in writing to appoint and in default of agreement as to agent within 14 days of the expiration of order 3 above with such agent as appointed by the President of the Property Institute of New South Wales [or his/her nominee] (“the Agent”), any costs of such appointment payable prior to sale to be paid by the parties in equal shares as and when they become due and payable;
4.2.The reserve price for the purpose of such auction be such price as mutually agreed upon by the parties or, in the absence of agreement reached within 14 days prior to the date of the auction sale, such reserve price as nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Property Institute of New South Wales [or his/her nominee] (“the Valuer”), any costs of such appointment and valuation to be paid by the parties in equal shares when they become due and payable;
4.3.The parties each co-operate in every way with the Agent and the Valuer, including (without limiting the generality of the foregoing):
4.3.1.allowing inspection of the E Town property at all reasonable times requested by the Agent;
4.3.2.doing or saying nothing to hinder or prevent a sale being effected; and
4.3.3.signing all documents requested by the Agent in relation to the listing for sale of the E Town property except a contract or agreement for sale which has not been authorised by the parties' solicitors;
4.4.In the event the bidding at the auction does not reach the reserve price, the parties or such of them as attends the auction be entitled to negotiate with the highest bidders or any other interested person and effect a sale of the E Town property at a price which is not more than 5 per cent below the reserve price, or at such other price as the parties agree upon in writing. If the E Town property remains unsold notwithstanding an auction pursuant to Order 4.2 above, the parties do all acts and things and sign all documents necessary to immediately relist the E Town property for sale by public auction again, on a date nominated by the Agent and at such auction there be no reserve price unless otherwise agreed by the parties in writing prior to such auction;
4.5.The parties instruct such solicitor as they agree upon in writing to conduct the sale of the E Town property on behalf of both parties or, in the absence of agreement within 14 days of the expiration of order 3 above, the parties instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales [or his/her nominee] (“the Agreed Solicitor”) the costs of and incidental to such appointment to be paid by the parties in equal shares when they become due and payable; and
4.6.The husband shall execute a contract for sale in the form prepared by the Agreed Solicitor at the sale price; and neither party confer on any agent without the written consent of the other party any right to any sole or exclusive agency in respect of the E Town property or to any commission.
That on settlement of the sale of the E Town property, the parties do all acts and things and sign all documents necessary to cause the proceeds of sale to be paid in the following manner and priority:
5.1.to pay all costs and expenses of sale including legal costs and disbursements, the Agent's commission, advertising expenses, auction expenses and any costs paid by either of the parties for works undertaken to the E Town property prior to the sale of the E Town property (including any interest paid on funds expended by either party in paying for such works);
5.2.to pay any municipal and water rates outstanding with respect to the E Town property;
5.3.to pay all monies owing on the E Town mortgage;
5.4.to pay into an account established pursuant to Order 6 below ["the CGT Bank Account"], such sum estimated by an independent registered accountant as agreed between the parties, and in the absence of agreement, as appointed by the president from time to time (or his/her nominee) of the Institute of Chartered Accountants of Australia ("the accountant"), with the cost thereof to be paid by the parties equally with such estimate to be provided by the accountant not less than 30 days prior to the date of settlement of the E Town property; and
5.5.to pay the balance to the parties in such sum so as to achieve an overall distribution of the net property pool (excluding superannuation) between the parties as to the H per cent to the husband and W per cent to the wife after taking into account all other assets and liabilities they are each to retain and the net proceeds of sale of the E Town property after deductions referred to in Order 5.1, 5.2, 5.3, and 5.4.
That the parties forthwith do all acts and things to establish an account with National Australia Bank ("the CGT Bank") in the joint names of the parties and requiring the signature of both parties to operate it ("the CGT Bank Account"), for the purposes of Order 5.4 above.
That forthwith following completion of the financial year in the tax year in which the E Town property is sold, the Husband do all acts and things to instruct and cause his accountant to prepare and lodge his tax return for that financial year.
That forthwith upon completion of the Husband's tax return pursuant to Order 7 above, the Husband:
8.1.provide a copy of the tax return to the Wife and do all acts and things to cause his accountant to calculate that portion of the tax payable that is referrable to any Capital Gains Tax in respect of the E Town property, if any ("the Referable Tax"); and
8.2.lodge his tax return forthwith.
That the Husband provide to the Wife, a copy of any assessment issuing for the tax year in question encapsulating the Capital Gains tax identified above, and should either party take issue with the calculation of the Referable Tax calculated pursuant to Order 8.1 above or the issued assessment, the parties forthwith do all acts and things to cause that calculation and assessment to be verified within 14 days by the accountant ("the Verified Tax"), with the costs thereof to be paid by the parties equally.
That the Husband and Wife then be bound by the calculation of the Referable Tax (or the Verified Tax if applicable), and subject to Order 11 below, then forthwith do all acts and things to cause the monies in the CGT Bank Account to be paid, in the following order and priority:
10.1.to discharge in full the Referable Tax (or the Verified Tax if applicable);
10.2.to pay H per cent of the balance (if any) to the Husband; and
10.3.to pay the W per cent of the balance (if any) to the Wife.
That should the monies in the CGT Bank Account not be sufficient to meet the Referable Tax (or the Verified Tax if applicable), the parties each forthwith pay that shortfall in equal shares.
That save as otherwise agreed between the parties in writing, and pending the husband's compliance with Order 3 (or settlement of the sale of the E Town property pursuant to Order 4 if applicable):
12.1.The Husband shall pay the repayments in respect of the E Town mortgage as and when due and payable; and
12.2.The Husband be restrained from doing any act or thing to further encumber the E Town property without the prior written consent of the Wife.
That in accordance with Section 90MT(1)(a) of the Act and in order of priority:
13.1.a base amount be allocated to the Wife out of the Husband's interest in the Husband's Superannuation, as required by s90MT(4) of the Family Law Act ["the Wife's Super Base Amount"];
13.2.the Wife be entitled to be paid the Wife's Super Base Amount when a splittable payment first becomes payable to the Wife from the Husband’s interest in the Husband's F Super Fund, in accordance with the Family Law (Superannuation) Regulations 2001;
13.3.the Husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made to the first payment out of the Husband's interest in the Husband's F Super Fund, be hereby correspondingly reduced;
13.4.for the purposes of Order 13.1 and Order 13.2 above, the Wife's Super Base amount be $81,620.50;
13.5.This Order have effect from the operative date, being 7 days from the date of this Order ("the Operative Date");
13.6.the Trustee of the F Super Fund do all acts and things and sign all documents necessary to:
13.6.1.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations, the entitlement created by Order 13.1 above; and
13.6.2.Pay the entitlement when a splittable payment first becomes payable out of the Husband's interest in the Husband's F Super Fund;
13.7.Having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Husband's F Super Fund.
13.8.any payments from the Husband's interest in the Husband's F Super Fund, made after the Trustee has rolled over or transferred the interest in favour of the Wife out of the Husband's Interest in the Husband's F Super Fund pursuant to the above Orders, not be splittable payments; and
13.9.the Trustee of the Husband's F Super Fund be relieved of its obligations to calculate and split payments pursuant to Order 13.1 above once the transferable benefits are transferred to the Wife's EE Superannuation (or such other fund as the Wife nominates by the Operative Date).
Except as specifically provided for by any paragraph comprised in these orders to the contrary, as against the wife, the husband be declared the sole owner of and the wife have no interest in:
14.1.The E Town property, subject to the E Town loan (subject to the husband's compliance with Order 3 above);
14.2.The husband's superannuation;
14.3.The husband's shares;
14.4.The husband's motor vehicle;
14.5.The husband's bank accounts;
14.6.The husband's contents; and
14.7.All other property of whatsoever nature and kind in the possession of the husband at the date of these Orders, including but not limited to life insurance policies held in the sole name of the husband.
Except as specifically provided for by any paragraph comprised in these orders to the contrary, as against the husband, the wife be declared the sole owner of and the husband have no interest in:
15.1.The wife's property settlement;
15.2.The wife's bank accounts;
15.3.The wife's superannuation;
15.4.The wife's motor vehicle;
15.5.The wife's contents;
15.6.The wine collection;
15.7.The wife's jewellery; and
15.8.All other property of whatsoever nature and kind in the possession of the wife at the date of these Orders, including but not limited to life insurance policies held in the sole name of the wife.
Except as specifically provided for by any paragraph comprised these Orders to the contrary:
16.1.The husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband, including but not limited to the joint loan, the husband's credit cards and V Bank personal loan;
16.2.The wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife including but not limited to the German car loan.
Except as specifically provided for by any paragraph comprised these Orders to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
Both parties promptly do all acts and things and execute all documents, authorities or writings as are necessary to give effect to all or any of these Orders.
That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the court be appointed pursuant to Section 106A of the Act to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
That the wife pay the husband's costs of and incidental to these proceedings.

SCHEDULE 3

This agreement is made freely and openly between Mr Woolcott (DOB …1972) and Ms Hearn (DOB …1973).

We declare that we have received independent legal advice in regards to this matter.

The property at D Street, E Town 2065 is to be sold. The minimum price that this property will be sold for is ~~$1.8~~ $1.6 million unless both parties agree to a lower figure on offer. From the sale of this property all outstanding debts in either person’s name is to be settled. This includes all loans, credit cards and any outstanding invoices as at 30 September 2011. Payment made by Mr Woolcott will be repaid.

The remaining balance of the settlement is to be divided evenly between Mr Woolcott and Ms Hearn.

The entire contents of the home will be divided based upon which items were specific gifts, the needs of the children and the items sentimental value. This will be a process of negotiation and at no time is Mr Woolcott or Ms Hearn to discard or sell an item without the prior approval of the other.

Ms Hearn will not be making a lump sum claim on Mr Woolcott’s superannuation. It is agreed though that Mr Woolcott will provide an additional $215 per month towards child support as compensation along with ownership of the vehicle with registration number …. The current CSA assessment equates to $1585 per month.

Mr Woolcott hereby agrees to pay Ms Hearn the sum of $1800 per month and this amount will be reviewed annually on the 1^st July of each year until their youngest child Y turns 18 years old on the 6^th November 2021. After such time, further review will take place to establish the children’s needs.

The current custody agreement will be as follows: Ms Hearn will have care of the children Monday to Sunday night of week one and Monday to Friday night of week two. Mr Woolcott will care for the children on Saturday and Sunday night of week two. This is a reoccurring care agreement every fortnight. This equates to Ms Hearn having 75 per cent of care of X and Y. This custody/care agreement is open to discussion and review at any time that either parents request a review.

Dated: 12 August 2011

[2018] FamCA 486

28 June 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Jurisdiction