HESTER and HESTER - [2019] FCWA 57

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HESTER and HESTER [2019] FCWA 57
CORAM: O'BRIEN J
HEARD: 1 - 6 NOVEMBER 2018
DELIVERED : 7 MARCH 2019
FILE NO/S: PTW 3874 of 2016
BETWEEN: MS HESTER
Applicant
AND
MR HESTER
Respondent

Catchwords:

PARENTING - Where presumption of equal shared parental responsibility does not apply - Where child expresses views against background of lived experience of shared care - Turns on its own facts.

PROPERTY - Where husband made substantial initial contributions - Where husband disbursed funds in contravention of injunctions - Consideration of "add backs" - Assessment of contributions - Consideration of prospective factors - Turns on own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hedges SC
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	WA Family Legal
Respondent	:	Self-Represented Litigant

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

Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (In Liq) (1948) 76 CLR 463
In the marriage of Biltoft (1995) FLC 92-614
Khademollah & Khademollah (2000) FLC 93-050
Trevi & Trevi [2018] FamCAFC 173
Weir & Weir (1993) FLC 92-338

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

1[Ms Hester] (“the wife”) and [Mr Hester] (“the husband”) have been unable to agree either the parenting arrangements to be made for their only child, [P], born [in] 2006, or the alteration of their property interests.

Background

2The husband was born in 1970. He is currently employed on a casual basis as an [investment advisor].
3The wife was born in 1978. She is presently employed on a part-time basis as [an] [administrator].
4The parties met in [Country A] in late 1998. In 2002, the wife came to Australia and the parties began living together. They married in 2003.
5In [early] 2015, the parties separated under one roof. The wife commenced proceedings [in] June 2016 by filing an application for alteration of property interests. The husband filed responding documents [in] September 2016. In amended documents filed [in] June 2017, he sought parenting orders. The wife filed a reply [in] June 2017, setting out the parenting orders she proposed.
6[In] June 2017, orders were made for the wife to have exclusive occupation, until further order, of the jointly owned home (“the home”), and for the husband to vacate the home by July 2017. Having lived with both parents in the home during their period of separation under one roof, P began to spend equal time with each of them in their separate premises.
7[In] June 2017, an order was made for the preparation of a family report. The parties and P each met with the family consultant [in] November 2017, and the report was published [in] December 2017. In the meantime, the parties had attended a case assessment conference [in] September 2017.
8By the time of the interviews, P had some lived experience of spending equal time with each parent in separate households. To the family consultant, he expressed a clear preference for that arrangement not to continue, and his wish to live primarily with the wife while spending regular time with the husband.
9[In] December 2017, interim orders were made for P to live primarily with the wife, and to spend time with the husband each alternate weekend from the conclusion of school on Friday, until the commencement of school on the following Tuesday. That arrangement was broadly consistent with the views expressed by P to the family consultant, and has continued since.
10The interim and interlocutory proceedings, particularly in relation to financial matters, were acrimonious. At an early stage in the proceedings, orders were made by consent [in] August 2016, restraining the parties from disposing of or dealing with property without the consent of the other (“the injunction”). As those orders assumed some prominence in the substantive proceedings, it is appropriate to set them out in full. The orders were in the following terms:
By consent, until further order of the Court, on a without admission as to need basis, the Applicant, [MS HESTER], and the Respondent both be restrained by injunction and an injunction is hereby granted restraining each of them from selling, transferring, encumbering or otherwise disposing of any asset in which they have an interest of whatsoever nature exceeding $1,000 in value, save in the ordinary course of business.
By consent, until further order of the Court, prior to selling, transferring, encumbering or otherwise disposing of any asset of whatsoever nature exceeding $1,000 pursuant to [the preceding] paragraph, each party shall provide or cause to be provided to the other party’s solicitors not less than 7 days written notice of their intention to deal with such asset and particulars of how the proceeds, if any, are to be applied.

11Significant issues later arose from the contravention of those orders by the husband. [In] July 2018, through his then counsel, the husband admitted having contravened the orders as alleged in a contravention application filed by the wife [in] June 2018. Following that admission, there were further hearings before a Magistrate [in] August 2018, in relation to the issue of penalty and costs. The decision as to penalty made by the learned Magistrate was the subject of appeal by the husband; the order for costs was not. The outcome of that appeal is irrelevant for present purposes, the contravention having been admitted.

Relief sought by the parties

12At the commencement of the trial, a further contravention application filed by the wife [in] July 2018 was dismissed by consent, the wife properly seeing no utility in pursuing it.
13The husband sought to pursue a contravention application filed by him [in] September 2018, relating to an action by the wife that occurred two years earlier. For reasons delivered extemporaneously, I dismissed that application, concluding that it was an abuse of process.
14On the papers, each party sought sole parental responsibility for P, and that he live primarily with that party and spend alternate weekends with the other. Their respective central proposals mirrored each other, with one important distinction; the wife proposed that in the event P lived primarily with the husband, the husband should have sole parental responsibility. Her position in that regard was based on the premise that, regardless of with whom P lives, the parties are incapable of the level of cooperation and joint decision-making contemplated by an order for equal shared parental responsibility. The husband proposed that, in the event P lived primarily with the wife, the parties should have equal shared parental responsibility. At trial, he initially confirmed his proposals, before submitting in closing that an arrangement for P to live equally with each party would be appropriate.
15There were relatively minor differences between the proposals of the parties in relation to orders addressing various specific issues. Those differences are addressed as necessary later in these reasons.
16To their credit, the parties were able to agree a significant number of other orders addressing various specific issues. Those orders will be incorporated in the proposed orders at the conclusion of these reasons.
17The wife sought orders for the alteration of property interests which would see her receive 50% by value of the total property and superannuation of the parties after all proper liabilities are taken into account. That was, however, based on the premise that significant sums, outlined in more detail later in these reasons, would be notionally added back for the purposes of the calculation of her entitlement.
18The husband sought orders for the alteration of property interests which would see him receive 62% by value of the total property and superannuation of the parties, after all proper liabilities are taken into account. That was, however, based on the premise that the sums proposed by the wife would not be notionally added back for the purposes of calculations, and that before those calculations were undertaken certain sums would be set aside both for repayment of an asserted liability to his mother, and for lump-sum provision for P’s future education expenses.
19In relation to the latter point, in his opening the husband proposed that a sum of $200,000 be set aside in a child support trust for P, and applied not only to his maintenance but also to school fees. In his papers for the judge, he had made a similar proposal, but on the basis that the amount set aside would be $100,000. In response to questions from me, he properly conceded both that there was no formal application seeking relief of that nature, and that he had adduced no evidence in support of it. In those circumstances, I am not prepared to make such an order, and do not propose to address the issue further in these reasons.
20Both parties accepted that the home would need to be sold to effect a division between them. Neither party sought a superannuation splitting order. To their credit, the parties were able to agree the in specie division of chattels.

The law – the parenting case

21The parties were married. The proceedings fall to be determined pursuant to the Family Law Act 1975 (Cth) (“the Act”). The Court must be guided by the objects of Part VII of the Act and the principles underlying them.
22Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 61C, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
23Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
24If an order for equal shared parental responsibility is to be made, I am required to consider whether P spending equal time with each of his parents would be in his best interests, and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
25Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for P to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.
26In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.
27The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed:[1]
[1] Banks & Banks (2015) FLC 93-637
28Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part VII of the Act. The additional considerations set out in the legislation:
… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[2]

The law – the financial case

[2] Bondelmonte & Bondelmonte (2016) 259 CLR 662, 77,094 [32.

29The Court has a wide discretion conferred by s 79(1) of the Act. That discretion must be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets are or should be different from those determined by common law and equity.
30The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. That requirement is readily satisfied in most cases, including this one. The parties are long separated, and both seek to discontinue their joint ownership of property.
31In determining what orders will be just and equitable, the Court’s power is not confined by any “steps” or “stages”. Having said that, a court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties (to the extent the evidence permits), takes into account their respective contributions (including contributions to any assets which have ceased to be owned by them), assesses the factors in s 79(4)(d) to (g) of the Act (to the extent they are relevant), and considers whether the proposed orders are just and equitable.
32The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself (other than in an atypical case) to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
33There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or, for that matter, the date of separation.
34Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 79(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.
35In this case, as in many others, issues arose as to the appropriate treatment of property no longer owned by the parties, but which was owned by them prior to separation. While the court’s power is only to adjust existing interests in existing property, circumstances often arise where the disposal of property post separation must be taken into account if a just and equitable order is to be made.
36Broadly, there are two approaches which may be taken. The court may notionally “add back” the value of disposed property, merely as an aid to calculation in determining the appropriate division of existing property. Alternatively, and without notionally adding back, the court may take the disposal of property into account pursuant to s 75(2)(o).
37Adding back is the “exception rather than the rule”.[3] Reasonably incurred expenditure does not usually come within accepted categories of add backs.[4]
[3] C & C [1998] FamCA 143 [46].
[4] Trevi & Trevi [2018] FamCAFC 173, 78,454 [29.
38As the Full Court observed in Trevi:[5]
Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
[5] Ibid, 78,454 [30].

39Paid legal fees “occupy a particular position in the consideration of add backs by reason of s 117(1) of the Act”.[6] Against the background of s 117(1) the court is alert to consider notionally adding back legal fees paid from monies which would otherwise have been properly available for division between the parties, and were not generated by one party post separation from his or her own endeavours, so as to avoid a contribution by one party to the legal fees of the other, other than by a proper application of s 117(2).[7]

Evidence at trial

[6] Ibid, 78,455 [36].

[7] Chorn & Hopkins (2004) FLC 93-204.

40The wife relied on the following affidavits:
(a)Her trial affidavit filed [in] March 2018;
(b)Her supplementary trial affidavit filed [in] July 2018;
(c)Her further supplementary trial affidavit filed [in] September 2018;
(d)Her financial statement filed [in] March 2018; and
(e)The affidavit of [Ms D] filed [in] July 2018.

41The husband did not require Ms D to present for cross-examination.
42The husband relied on the following affidavits:
(a)His trial affidavit filed [in] April 2018;
(b)His supplementary affidavit filed [in] October 2018;
(c)The affidavit of his mother [Ms H] filed [in] May 2018;
(d)The affidavit of [Ms F] filed 15 May 2018; and
(e)The affidavit of [Mr D] filed 16 October 2018.

43The wife did not require the husband’s witnesses to present for cross-examination.
44The family report dated December 2017, and the case assessment conference memorandum dated September 2017 were also in evidence. The Family Consultant who prepared both was required by the husband to attend for cross-examination, and did so.
45The wife gave her evidence in a straightforward and open manner. She made appropriate concessions without apparent hesitation, and answered questions directly and simply when the nature of the question permitted that. In short, she was a credible witness.
46The family consultant was cross-examined only briefly. His evidence was not in any sense challenged, and he gave his evidence directly and professionally.
47The husband’s evidence is somewhat harder to describe. He struggled to answer direct questions with a direct response. At times he appeared to misinterpret questions, leading to confusion. At other times, and not infrequently, he appeared deliberately evasive or intentionally obtuse. When he made admissions, they were almost without exception made only when confronted with documentary evidence that made them unavoidable. Even then, he often resisted making admissions when confronted with such evidence. Other elements of his evidence were either changeable or internally inconsistent.

48One series of examples, of many, is illustrative.
49On 18 August 2016, the injunctions set out in full above were included in orders made by consent. The parties were restrained from dealing with monies or property of a value greater than $1,000 without the consent of the other party, other than in the ordinary course of business. Where such dealings were intended to be undertaken in the ordinary course of business, notice was to be given to the other party.
50On 26 August, 2016, the husband drew $195,000 from the joint home loan account, and deposited that sum into an account in his sole name (“the goal saver account”). He did not disclose that he had done so. At trial, he acknowledged that he had acted in breach of the injunction, seeking to excuse his actions by saying that he was reacting to a withdrawal by the wife of $2500, made a few days earlier. As it transpired, that withdrawal was simply the movement by the wife of that sum from one account to another joint account, used for the payment of bills including rates on the home, which at that time was jointly occupied.
51On 30 August 2016, the wife’s lawyers wrote to the husband’s lawyers. Unaware at that stage of the husband’s withdrawal of $195,000, they asserted that the husband was already in breach of the injunctions by steps he had taken to close a number of joint accounts, and to remove the wife from the joint private health cover. The wife’s objections to those steps were made clear.
52The wife then became aware of the withdrawal of $195,000. Her solicitors wrote to the husband’s solicitors on 31 August 2018. On Friday 2 September 2016, the husband’s lawyers responded by email, saying that they were “taking urgent instructions”, and asking that the wife refrain from taking any action until they were able to reply early the following week.
53The husband’s lawyers then provided a more substantive response on Monday, 12 September 2016. Under the heading “preservation of asset pool”, the letter said:
“Our client moved the advanced payment in [the parties] mortgage account (which was previously available to redraw) into a mortgage offset account. Our client also cancelled the joint credit card.
Our client vehemently denies your client’s allegation that he is in breach of the orders made on 18 August, 2016. The order is in essence restraining both parties from disposing of assets to the detriment of the other party. The action took by our client (sic) was to preserve the asset pool for both parties, rather than to cause detriment to your client.
… As a matter of fact, the movement of the funds cannot be classified as disposal as the fund in question is now in a mortgage offset account which has our client as the sole account holder.”

54That letter was written, on the husband’s instructions, in circumstances where, between 26 and 30 August 2016, he had in fact transferred a total of $100,000 to his mother from the goal saver account. On the husband’s evidence, those payments were made to repay a loan.
55When confronted with that in cross-examination, the husband acknowledged that he had not disclosed those payments. He denied, however, that the letter from his lawyer was designed to mislead. He said that, by the time the letter was written, his lawyer had explained to him that he had “done the wrong thing” by making the payments to his mother, and he was already taking steps to have her return the money. Accordingly, he suggested that there was no need to disclose the transaction, or alternatively that his failure to do so was an innocent omission.
56Later in the same letter, however, the husband’s solicitors had conveyed an offer “as a gesture of goodwill and to avoid incurring legal costs” to transfer “the $190,000” into a joint offset account, requiring both parties to authorise any transactions. At the point that offer was made, the balance in the account was $127,000.
57The funds transferred by the husband to his mother were returned on 26 September 2016.
58On 2 September 2016, the husband had sworn and filed a Form 13 Financial Statement. In that document:
(a)he swore that the balance in the goal saver account in his sole name was $35,000. At the time, it was $135,375. The husband’s only explanation at trial was that there must have been a typographical error.
(b)he swore that he had a debt to his mother in the sum of $125,000. Over the course of the several days prior to swearing his financial statement, he had in fact transferred $100,000 to his mother in reduction of that alleged debt, as referred to above. His explanation at trial was that at the time of swearing the statement he had already asked his mother to return those funds (which had only just been paid, and were not returned until 26 September 2016), and that accordingly he still regarded himself as having a liability in the full amount. Of course, the alleged anticipated return of the funds was not correspondingly reflected in the asserted balance in the account, nor elsewhere in the sworn statement.

59The husband also, on 21 September 2016, entered into a contract to purchase [an] [Audi] motor car for just under $50,000. On 5 October 2016, he paid $20,000 from the goal saver account towards that purchase. The husband’s only explanation was that he regarded that transaction as being in the ordinary course of business, and accordingly compliant with the first of the injunctions made by consent. He acknowledged having given no notice of it.
60In short, I did not regard the husband as a credible witness. I place no reliance on his evidence unless it is conceded, or verified by reference to documents or independent evidence.
61I bear in mind also the well established principle that “… once it has been established that there has been a deliberate non-disclosure… then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”[8]

The husband as a self represented litigant

[8] Weir & Weir (1993) FLC 92-338, 79,593.

62At the commencement of the trial, I explained to the husband the steps that I was required to take to ensure procedural fairness. I informed him of the manner in which the trial was to proceed, the order in which evidence would be given and submissions made, and his right to cross‑examine. I explained the importance of cross-examination and the likelihood that relevant evidence that was not challenged on cross-examination would be accepted.
63I explained to both parties the principles by which child-related proceedings are conducted.
64I ensured that the husband understood that the usual rules of evidence were not to be applied in the child related proceedings. I explained that the rules of evidence would apply in the financial case, as there was no agreement to conduct that aspect of the matter as a child related proceeding. In that regard, while various objections taken by the wife to the husband’s primary trial affidavit were dealt with, counsel for the wife did not pursue objections in relation to the husband’s supplementary affidavit. The husband initially pursued various objections to the wife’s affidavit material; when it became clear to him that he had misunderstood certain rules of evidence, he indicated that he would not pursue the balance of those objections.
65I told the husband that I would explain to him if any change in the usual procedure was requested by the wife’s counsel in such a way that might cause him any disadvantage. I told him that I would advise him of his right to object to any such course, in which case I would determine any objection on its merits.
66I also explained to the husband my obligation to attempt to clarify the substance of any submissions he might make, so as to ensure that I properly understood his case as he wished it to be put. I acknowledge that during the course of the trial I encountered some difficulty in that regard, as notwithstanding his clear intelligence, the husband’s arguments were often hard to follow, and his position in relation to various matters hard to pin down.
67The husband had earlier been provided with the handbooks produced by the Court to assist self-represented litigants and, by that process, had the relevant provisions of the legislation in relation to both parenting and financial aspects of the case drawn to his attention. In addition, as the issue of add backs had been squarely raised on behalf of the wife, and she relied on the recent Full Court decision of Trevi, I provided a copy of that decision to the husband at the commencement of the trial, drew to his attention the most relevant paragraphs, and stood the matter down to give him time to read it.
68The husband is a well-educated and intelligent man. He had the benefit of legal advice for most of the course of the litigation. He had clearly prepared carefully for trial, including for his cross-examination of the wife. While he understandably struggled at times, I am satisfied that he understood the information that I provided to him, and that the trial proceeded in a manner which was procedurally fair to both parties.

The parenting case

The presumption of equal shared parental responsibility

69One matter upon which the parties could agree was that the statutory presumption of equal shared parental responsibility does not apply. Each accused the other of behaviour meeting the definition of family violence, both during the relationship and during the period of separation under one roof. Each denied the accusations of the other.
70The statutory presumption does not apply where there are “reasonable grounds to believe” that one or both parents has engaged in family violence. Proof of that violence on the balance of probabilities is not required. In this case, where the parties agree that the presumption does not apply, any effort to analyse in detail their conflicting allegations of violence would be both unnecessary and unhelpful.
71That is particularly so in circumstances where, for the reasons outlined further below, the conclusion that an order for equal shared parental responsibility would not be in P’s best interests is readily reached, and the issue of family violence does not inform the determination of the other parenting orders sought.

The primary considerations

72It is common ground that P has a meaningful relationship with the husband, and that it is to his benefit for that to continue.
73It is abundantly clear from the evidence that P also has a meaningful relationship with the wife, and that it is to his benefit for that to continue. At times, the husband appeared to acknowledge that; at others, his views were reflected by comments in his papers for the judge that the wife “has been spending time with [P] but her parenting skills are limited”, his assertion that she “places her sexual relationships before [P]’s emotional needs”, and his statement that “while [the wife] has done well to get [P] this far in his life, more practically [she] is not a good influence or role model for [P]. The less time [P] is exposed to his mother, the better [P] will develop as a confident adolescent person.”
74Those assertions by the husband were unsupported by the evidence, and were not put to the wife in cross-examination in any event. They were also incongruous with the husband’s acknowledgement during trial that, while he initially proposed orders whereby P would live primarily with him, he was at first open to, and in the end actively sought, an equal shared care arrangement.
75Notwithstanding matters raised by her in relation to family violence during the relationship, the wife did not seriously suggest that the parenting orders to be made need to be crafted with a view to protecting P from physical or psychological harm related to abuse, neglect or family violence while in the care of the husband.
76The husband made various allegations regarding the wife’s drinking in particular. There was no independent evidence to support his allegations, and the tenor of much of his evidence, his questioning of the wife in cross-examination, and his submissions both written and oral were redolent with bitterness directed towards the wife, a tendency to attribute to her exclusive blame for any miscommunications and for inappropriate conduct which both parties contributed, and a striking lack of insight into his own conduct. My earlier observations regarding his credibility as a witness do not require repetition.
77Again, the husband’s allegations were incongruous with either of his positions at trial in relation to an equal shared care arrangement, and the fact that such an arrangement was actively pursued by him earlier in the proceedings.
78The same observation may be made regarding assertions made by the husband regarding the wife’s actions in administering Melatonin, in accordance with medical advice, to assist with P’s sleep difficulties.
79I find that orders need not be crafted to protect P from physical or psychological harm in the care of the wife.
80I find further that the only consideration of that nature relevant to the determination of what orders are in P’s best interests is this; the relationship between the parties is toxic and conflictual. Some of their behaviour during the period in which they were separated under one roof, including insistence on different sleeping arrangements for P depending on which of them was responsible for parenting on a given day, and the labelling of food items as being only available to P on the ‘parenting day’ of the party who purchased them, frankly beggars belief. The precise attribution of blame between the parties for that conduct would be a sterile exercise; the fact that they so exposed P to it reflects poorly on both of them.
81In my view, it is that relationship, and exposure to it, which represents the only relevant significant risk to P’s psychological and emotional well-being.

The additional considerations

82The family consultant interviewed both parties and P [in] November 2017, having met with the parties in a case assessment conference [in] September 2017. Not unimportantly, by the time he met with P the order for exclusive occupation made [in] June 2017 had been in place for some time, and P had the lived experience over several months of living with each parent in an equal, week about arrangement. At the time of the preparation of the report, the husband proposed a continuation of that arrangement; he subsequently modified his position to seek that P live primarily with him, before submitting in closing at trial that an order for equal time should be made.
83P impressed the family consultant as a bright boy who was engaged, and actively participated in the interview. He said that he was not nervous, and was noted by the consultant to be thoughtful, and to give due consideration to his views and answers. It was clear that, while both parties had explained the purpose of the interview to P, he had not been pressured by either of them.
84P described his relationships with each of his parents in positive terms. He was secure in the knowledge that both his parents love him. He enjoyed spending time with each of them. He could think of nothing that he would identify in a negative way about the wife, nor anything she could do to improve their relationship. While he also spoke positively about the husband, he disliked hearing negative comments made by him about the wife and her friends, and commented on what he perceived as the husband’s tendency to “lecture” him.
85P expressed very clear views that he did not like the then current week about arrangement. He stated clearly his wish to live primarily with the wife, and to spend alternate weekends and one weeknight each week with his father, so long as the additional weeknight was, in his words, “not too disruptive”. He expressed a strong preference to live primarily in one home.
86The family consultant recorded that he provided feedback to both parents about P’s views. The wife was accepting of them; the husband was not, expressing the view that the suggested time with him was not sufficient for him to be an involved father and maintain a meaningful relationship. He also regarded as illogical the wife’s acceptance of a week about arrangement as appropriate during school holidays, while it was suggested to be inappropriate during school term.
87The family consultant formed a view of P as “a young boy who displayed a high level of maturity and a person who knows his own mind.” He considered that the views expressed by P were “genuinely held by him and have been carefully considered”.
88Nothing in the cross-examination of the family consultant led to any departure from the content of his report. Prior to the preparation of the report, the husband had instructed his lawyers to convey the view that a “family report [was] seen as pivotal in ascertaining [P’s] wishes”.
89Against that background, P’s expressed views must be given considerable weight.
90As already noted, P has a meaningful relationship with each of his parents. It is apparent, however, that his relationship with the wife is more comfortable. She has been his primary carer, including prior to separation where, due to the demands of his work, the husband was less available than was she. That observation is not meant in any sense to be critical of the husband; it is common ground that he worked hard during the relationship to provide for the family, and that his work commitments required him to travel extensively.
91Both parties acknowledge that P has beneficial relationships with his extended family on both sides. Given that the wife’s parents live in Country A, the husband’s mother lives in [State A], and the husband’s sisters live in [State B], P’s relationships with those members of extended family do not influence a determination of what parenting orders are in his best interests.
92It cannot be said that either party has failed, particularly since separation, to take the opportunity to participate in making decisions about major long-term issues in relation to P. Similarly, both parties have sought to take the opportunity to spend time with P and communicate with him. As earlier outlined, those efforts on the part of each party, most particularly in relation to decision-making, have been fraught with difficulty and conflict, but nevertheless they have been made.
93Both parties raised criticisms of the other in relation to their obligations to maintain P. There have been disputes in relation to child support. The resolution of those disputed facts does not influence a determination of what parenting orders are in P’s best interests.
94A change in P’s present circumstances would not only run counter to his clearly expressed wishes, with the consequences which may follow, but would also potentially exacerbate the damage already caused by his exposure to ongoing conflict between the parties.
95Both parties have the capacity to provide for P’s practical needs. Notwithstanding his strong views to the contrary, the husband’s lack of insight into his own conduct and its consequences calls into question the extent of his capacity to provide for P’s emotional and intellectual needs. It would be unhelpful, and is unnecessary, to recite in detail the multiple examples which emerge from the evidence. Again, I simply note the husband’s acknowledgement of the factual accuracy of the wife’s recount of some of his behaviours during the period of separation under one roof. I note also the uncontested evidence regarding the circumstances in which he took P to a presentation at [School A], and involved P in the signing of forms for possible attendance at [School B] knowing that, as had previously been agreed between the parties, the wife’s intention was that he would attend [School C]. The husband also unilaterally sought to cancel P’s enrolment at that [school]. Those actions stand to be considered against the husband’s assertion in his papers for the judge, in the context of setting out the positive aspects of his own parenting capacity, that he “ensures that [P] will continue to receive an excellent education at [School C].”

96In contrast, I conclude that the wife has an appropriate capacity to provide for P’s emotional and intellectual needs. Apart from appearing to have greater insight both into those needs and into her own conduct, in the course of her evidence she demonstrated (despite considerable provocation) a significant degree of patience and calm in her dealings with and responses to the husband. In the context of the conflictual relationship already described, those qualities are likely to be important to P moving forward.
97Both parties would regard themselves as having an appropriate attitude to the responsibilities of parenthood. Save for their inability or unwillingness at times to properly shield P from their antipathy towards each other, I accept that they do. The wife’s attitude towards P, however, appears to me to be more focused on his needs than on her own needs, or what she might perceive to be her parental rights. The same cannot be said for the husband, for whom “fairness” as between the parents was a recurring theme in both his discussions with the family consultant, and in the presentation of his case.
98Notwithstanding what has already been observed in relation to family violence, I do not perceive that as a factor weighing in the determination of what parenting orders are appropriate, other than as it informs an understanding of the dynamic between the parties already described.
99Given that dynamic, it would clearly be preferable to make the orders less likely to lead to the institution of further proceedings in relation to P.

Discussion and conclusions

100As may be readily anticipated from what is set out above, I conclude that it would not be in P’s best interests for the parties to have equal shared parental responsibility. There is simply no meaningful prospect of them achieving the degree of mutual respect, consultation and cooperation required to make joint decisions in P’s best interests, even where that is only required in relation to major long-term issues as defined in the legislation. To make an order for equal shared parental responsibility would, in my view, simply entrench further opportunities for conflict between the parties, to P’s detriment. I bear in mind also the husband’s demonstrated tendency to make unilateral decisions, including in circumstances where those decisions place him in contravention of court orders, without apparent insight let alone remorse.
101I conclude further that it is in P’s best interests to continue to live primarily with the wife as proposed by her, and in accordance with his wishes.
102In those circumstances, I conclude that it is appropriate for the wife to have sole parental responsibility, and for the various other orders she seeks to secure her decision-making capacity to be made.
103I also conclude that it is appropriate for P to continue to spend time with and communicate with the husband as proposed by the wife. The various specific issue orders sought were largely agreed between the parties. I do not propose to make an order requiring the parties to review my orders within 12 months after the date of publication, notwithstanding that each sought such an order. It is, of course, entirely open to the parties to review the orders and endeavour to reach agreement as to any appropriate variation that might then be in P’s best interests, and I record that they have each expressed their intention to do so. That does not, however, mean that it is appropriate for the court to order such a review, particularly when to do so would potentially call into doubt the application of the principles loosely referred to as the “rule” in Rice & Asplund.[9]

The property case

The existing interests of the parties in property

[9] [1979] FLC 90-725

104Regrettably, the parties did not adequately comply with orders made for pre-trial conferral, and the preparation of a clear joint schedule of assets, liabilities and superannuation indicating which items were agreed and which were not. Considerable time was spent on the first day of the trial attending to that.
105As it emerged, while there were a number of disputes between the parties as to the appropriate treatment of various items, there were relatively few disputes as to their existing interests in property, the values of those interests, their superannuation and their liabilities.
106It is convenient to outline and address those disputes at this point. The findings made, and the matters agreed, will be incorporated together in the table set out below. While the table prepared by the parties included various items which they agreed had no value, and one bank account which they agreed had a balance of two dollars, I do not propose to include those in the table below, as no useful purpose would be served by so doing.
107I note further that, somewhat unusually, the parties agreed for the purposes of trial that the value of the home is $1.1 million, but the wife contended that its value was more like $1.75 million. Her explanation was that, as it is common ground that the home is to be sold, there was no utility in a dispute as to value. The parties accepted that orders can be crafted to ensure that no injustice arises from any variation in the sale price.

Household contents

108It was common ground that when the order for exclusive occupation was made and the husband moved out of the home, he took various items with him. It was also common ground that various items were left in the possession of the wife.
109The wife asserted that the value of each set of items was equal at $5,000. The husband did not agree. When asked whether he agreed that the value of the items retained by each party was approximately equal, without being able to specify a value, he said that he did not.
110There was no admissible evidence from either party as to the value of the chattels retained by them at separation. I decline to make any finding in the absence of evidence.

Wife’s jewellery

111The wife estimated the value of the jewellery in her possession at $500. The husband estimated that value at $25,000. Again, there was no admissible evidence to support either estimate. In those circumstances, the onus to establish a higher value rests on the party asserting it.[10]
[10] Khademollah & Khademollah (2000) FLC 93-050
112I attribute a value of $500 to the wife’s jewellery.

Monies held on trust for P

113It was common ground that the sum of $4,669 is held in a Commonwealth Bank “Youthsaver” account on behalf of P. The wife sought that the money in the account not be included in the property available for division between the parties; the husband sought an equal division of it.
114Neither party is the beneficial owner of the money in that account. I do not regard it as property available for division between them.

Current balance in [Husband’s Account A]

115At the start of the trial the balance in this account was not agreed. The husband asserted that it had a current balance of $7,971. The wife asserted that on the most recent bank statement seen, as at 16 August 2018, the balance was $65,875.
116When cross-examined, the husband confirmed his evidence as to the current balance of the account. He accepted that the $50,000 refunded to him from his lawyer had gone into that account prior to the statement referred to by counsel for the wife. He acknowledged that he had not produced more recent statements, but claimed he had not received any. At the conclusion of day 2 of the trial, I ordered him to produce at court on the following Monday a statement of all transactions on that account from 1 August 2018 to that day.
117The matter was not explored further when the trial resumed. I do not know whether in the various exchanges between the parties during the course of the trial but outside the actual hearing, the balance asserted by the husband was vouched. Neither party addressed the matter in closing submissions.
118In the circumstances, I am prepared to accept the evidence of the husband that the balance of the account as at the date of trial was $7,971.

Asserted debt by husband to his mother

119The husband’s evidence was that he owes his mother $100,000, that sum having been loaned to him with an expectation of repayment.
120The wife admits that the amount in question came from the husband’s mother to the husband. She disputed its characterisation as a loan. She contended that it was a gift; in the alternative, she argued that, even if it was not a gift, there was no realistic expectation or prospect of repayment being sought or made.[11]
[11] In the marriage of Biltoft (1995) FLC 92-614.
121The husband’s mother, who lives in State A, gave evidence. She was not required for cross examination and that evidence was accordingly unchallenged. She said that, [in] August 2013 she “lent to [the husband] an amount of $100,000 to reduce the size of their mortgage when [the parties] had purchased [the home]. I made it clear these monies were a loan and were to be repaid to me at a future date. Both [the husband] and I signed a contract for the repayment of the monies. In this case and because the amount I lent to [him] was so large and I was aware of some problems between [the parties] with their marriage, I wanted something in writing.”
122A copy of the document executed by the husband and his mother, and dated November 2013 was annexed to the affidavit. Under cross-examination, the husband said that both he and his mother were present in Perth when that document was executed.
123In May 2015, shortly after the parties had decided to separate, the husband’s mother lodged a caveat purportedly to secure the loan.
124As referred to earlier in these reasons, in breach of the injunctions the husband repaid $100,000 to his mother in five separate payments of $20,000 without disclosing that he had done so. Those payments were made over the period 26 August 2016 to 30 August 2016. On 26 September 2016, the husband’s mother paid him $100,000; on his evidence, that was because he had received advice and realised that he should not have made the payments made to her in August. In effect, the husband said that he had tried to repay the loan, but that when he realised he would be in breach of the injunction in doing so, his mother agreed to return the money to him.
125Both the husband’s principal trial affidavit, and his mother’s affidavit, were silent about those transactions.
126At one point during the cross examination of the husband it appeared that counsel for the wife intended to mount an argument that the loan (if such it was) had in fact been repaid, and that the payment to the husband of $100,000 by his mother on 26 September 2016 was a separate and unrelated transaction. Sensibly, that argument was not pursued.
127The wife expressed in her affidavit, filed 26 July 2018, her concern that the document recording the loan might have been “created in 2017, not 2013, to support claims of an otherwise non-existent loan.” That alleged concern was not put to the husband in cross examination. As already noted, the husband’s mother was not challenged on her evidence. The caveat was lodged in May 2015.
128Notwithstanding the concerns I have already expressed as to the husband’s credibility, I conclude that his mother does have a genuine expectation of repayment of the amount of $100,000 advanced by her in 2013, and that the amount is properly characterised as a liability still owing.

Treatment of property no longer owned by the parties

129There were a number of issues to be determined as to how property no longer owned by the parties should be taken into account so as to achieve a just and equitable outcome overall.
130For the reasons which appear below, I have determined that it is appropriate to notionally add back some, but not all, of the amounts involved. Doing so does not, in my view, preclude possible further consideration pursuant to s 75(2)(o) of matters not adequately addressed by the process of notionally adding back.
131As will be seen, I have adopted that approach for reasons which may be summarised as follows:
(a)I am conscious that paid legal fees “occupy a particular position in the consideration of add backs by reason of s 117(1) of the Act”;[12]
(b)I am conscious too that add backs are the “exception rather than the rule”. In my view, the use of funds in clear breach of an injunction is prima facie an exceptional circumstance inviting proper consideration of add backs where supported by evidence;
(c)Where the husband conceded that certain discrete amounts should be notionally added back, I am prepared to do so; and
(d)In circumstances where the husband’s actions are properly the subject of criticism, and have potentially affected the extent or value of property available for division between the parties, but that effect cannot be quantified with anything remotely approaching precision, I am not prepared to notionally add back an imprecise or speculative figure. Those circumstances are, in my view, more properly considered pursuant to s 75(2)(o) as was appropriately acknowledged by counsel for the wife.

Husband’s paid legal fees

[12] Trevi & Trevi [2018] FamCAFC 173, 78,455 [36].

132It was initially common ground that the paid legal fees of each party should be notionally added back. Subsequently, the husband suggested that, as there was little difference between the relevant amounts (at least on his case), there was no utility in the exercise of adding back. The amount of legal fees paid by the wife was agreed. The amount paid by the husband was in dispute.
133On the husband’s case, he had paid legal fees totalling $73,376. On the wife’s case, the husband had at least at one point paid legal fees totalling $123,376; she accepted that the husband’s former lawyer had made a refund to him of approximately $50,000, but called into dispute the use to which that money had been put, and whether it was otherwise reflected in the items of property which were agreed.
134I propose to notionally add back the wife’s paid legal fees in the agreed sum of $72,689, and the husband’s legal fees in the sum of $73,376, representing the amount paid in fees and actually retained by his lawyer.
135The evidence did not permit a clear conclusion to be drawn as to the use to which the refunded $50,000 was put by the husband.

Husband’s fee help loan

136In August 2017, the husband made two payments totalling $14,960 towards the reduction of a fee help loan taken out by him post separation. He made a further payment of $3,850 on 13 February 2018. The fee help loan was taken out to pay fees associated with studies towards a Masters degree in [commerce].
137The payments made by the husband came from funds the subject of the injunction.
138The wife submitted that the amount of $18,810 should be notionally added back for the purposes of calculations, as if an asset retained by the husband.
139The husband accepted that the payments had been made. He said that his accountant had expressed the view that the proposed study would be beneficial in a business sense; accordingly, he argued that the expense was incurred in the ordinary course of business. Otherwise, he argued that the expense was tax-deductible, and that the tax deduction “has come back into the asset pool”. That said, he acknowledged that the funds used to pay the loan had come primarily from the sale of shares.
140There is no evidence as to either the alleged tax deduction, or any direct or indirect benefit from it. In addition, the funds were expended towards the reduction of a debt incurred by the husband post separation, in circumstances where that debt itself would be unlikely to be characterised as a liability properly brought into account in determining the net value of the property available for division between the parties.
141I propose to notionally add back the amount in question.

Proceeds of sale of shares

142The husband sold shares in [Company A] for $393,117 [in] May 2018. The proceeds of sale were largely reflected in an ANZ Cash investment account, in which the sum of $361,488 remained at the date of trial.
143The husband sold shares in [Company B] for $40,579 [in] July 2017, shares in [Company C] for $62,243 [in] June 2017, shares in [Company D] for $1046 [in] August 2017, and shares in [Company E] for $18,881 [in] February 2018.
144The husband conceded that he had paid the sum of $10,000 indemnity costs to the wife pursuant to an earlier order from the sale of shares, as well as the $5,000 fine also ordered. He conceded that the amount of $15,000 should accordingly be added back. He conceded further that an amount of $20,000 spent by him in setting up his new accommodation, purchasing furnishings and the like, should be “treated as wastage” and notionally added back. The wife’s counsel conceded that, if that approach was taken, the agreed value of $5,000 for the household chattels in the husband’s possession should be disregarded to avoid double counting.
145I am accordingly prepared to notionally add back the sum of $35,000 in relation to those transactions.
146On the husband’s own evidence, a further $26,500 was applied by him to rent, a residential bond, and airfares. I propose to add back that amount also, it being conceded by the husband that monies the subject of the injunction were spent by him and are not recoverable, nor present in the remaining property in another form.
147The evidence as to the use to which the balance of funds from the sale of shares in breach of the injunction were put is otherwise unclear and confusing. Some of the funds were applied by the husband towards legal fees; they are, accordingly, already appropriately reflected in the notional adding back of those fees. Other of the funds were applied by the husband towards the purchase of an Audi car, in circumstances outlined further below.
148I accept the submission of the wife that, over and above funds the use of which been specifically identified, certain funds remain unaccounted for. That is understandable, given the husband’s concession at trial that some of the funds were used by him for day-to-day living and business expenses. I propose to take that matter into account pursuant to s 75(2)(o). Given the breach of the injunction, I consider it clearly appropriate to do so.

Tax liability arising from the sale of the shares

149It was accepted by the wife that the husband has an unpaid tax liability of $63,182 for capital gains tax arising from the sale of the shares. As the sale of the shares was undertaken in breach of the injunction, the wife argues that the liability thus created should not be visited upon her, and accordingly should not be included for the purposes of calculating the net property available for division between the parties.
150I do not consider it appropriate to simply ignore the liability in circumstances where the shares were at all times going to be subject to capital gains tax on sale, and a sale of all or part of them would almost certainly have been required to effect the overall alteration of property interests sought by the wife. In other words, to a significant degree at least, the husband’s actions in breach of the injunction have brought forward in time a liability which would have been incurred in any event, as distinct from causing that liability to arise.
151I consider it more appropriate to reserve the possibility of considering the impact of the husband’s actions in that regard pursuant to s 75(2)(o).

The Audi car

152[In] September 2016, the husband entered into a contract to purchase an Audi motor car for just under $50,000. The agreed present value of the Audi is $27,550.
153[In] October 2016 the husband paid $20,000 from the goal saver account towards that purchase. He borrowed the balance, repaying the loan in the sum of $27,451 [in] June 2017.
154The husband argues that the existing value of the Audi is already reflected in the identification of the existing interests of the parties in property, and that no other consideration is required. He argued further that the purchase of the car was not in breach of the injunction, asserting that it was undertaken “in the ordinary course of business”.
155The latter argument is relevant to a consideration of whether the circumstances of the purchase of the Audi were such as to render them “exceptional”, such that a notional add back might appropriately be contemplated. In short, I reject the husband’s argument. I note that he conceded that the car is registered in his name, and is not recorded in the relevant financial statements as an asset of the business.
156I note further that it cannot sensibly be suggested that the purchase of the vehicle fell “into place as part of the undistinguished common flow of business done… form[ing] part of the ordinary course of business as carried on, calling for no remark and arising out of no special or particular situation”.[13]
[13] Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (In Liq) (1948) 76 CLR 463.
157The wife argues in effect that the husband has, in breach of injunctions, spent $47,451 of funds that would otherwise be available to the parties in the acquisition of an asset now worth $27,550, and that the difference of $19,901 should be notionally added back for the purposes of calculations, as if an asset retained by the husband.
158I acknowledge that a new motor vehicle is, from the moment of its purchase, by its nature a depreciating asset. In that sense at least no fault can be attributed to the husband to the reduction in its value. That said, in my view the knowing action of the husband in spending funds in breach of the injunction is a circumstance which must properly be brought to account in determining an overall outcome which is just and equitable. While of course I do not have evidence as to the likely performance of the investment represented by the shares in question had the husband not sold them, that does not in my view matter when a conscious decision was taken by him to spend funds on what would inevitably be a depreciating asset.
159I accept the submission of the wife that the amount of $19,901 should be notionally added back.

Expenses incurred by the husband in setting up house after the order for exclusive occupation

160The wife asserted that in about July and August 2017 the husband spent approximately $132,000 in setting himself up in new accommodation. She argued that his expenditure in that regard should be taken into account pursuant to s 75(2)(o), but did not seek that the amount be notionally added back.
161The husband disputed both the amount alleged to have been spent, and the proposed treatment of it. As already noted, he said that the expenditure was more in the order of $20,000 and conceded that amount should be added back.
162The evidence did not support any finding that a greater sum was spent.

Conclusion – Add-backs

163I conclude, accordingly, that for the purposes of calculations, the amount of $72,689 should be notionally added back as if an asset retained by the wife, and the amount of $173,587 should be added back as if an asset retained by the husband.
164That conclusion, my findings already referred to in relation to the existing interests of the parties in property and the extent of their liabilities, and those matters agreed between the parties in that regard are reflected in the table set out below. As already noted, there is potential for significant variation in the value eventually achieved for the home on sale; the agreed present value of the home is used for the purposes of the table.
165I note further that during closing submissions the parties agreed that, pending delivery of judgment, the repayments on the loan secured against the home could be paid from the ANZ cash investment account referred to in the table, and that accordingly the balance in that account is likely lower than it was at the date of trial.

Item	Ownership/Responsibility for Liability	Value/Amount
Joint Assets
[The home]	Joint	$1,100,000
[Joint Account A]	Joint	$258
Subtotal Joint Assets	$1,100,258
Joint Liability
[Joint Account B]	Joint	$1,369,160
Net Joint Assets	($268,902)
Wife’s Assets
[Kia Rio Motor Vehicle]	Wife	$7,000
[Wife’s Account A]	Wife	$14,613
Jewellery	Wife	$500
Wife’s Retained Joint Household Chattels	Wife	$5,000
Subtotal Wife’s Assets	$27,113
Wife’s – Other
Wife’s Liabilities	Nil
Agreed Add -Back – Paid Legal Fees	Wife	$72,689
[Wife’s Superannuation A]	Wife	$19,537
Subtotal Wife’s Assets, Superannuation and Agreed Add-Backs after Deduction of Liabilities	Wife	$119,339
Husbands Assets
[Trust A]	Husband	$216,631
Share Portfolio	Husband	$202,596
[Audi Motor Vehicle]	Husband	$27,550
[Holden Motor Vehicle]	Husband	$4,200
[Husband’s Account B]	Husband	$171
[Husband’s Account A]	Husband	$7,971
[Husband’s Account C]	Husband	$361,488
Subtotal Husband’s Assets	$820,607
Husbands Liabilities
Unpaid CGT on Sale of Shares	Husband	$63,182
Accountants Fees	Husband	$3,125
Debt to Mother	Husband	$100,000
Subtotal Husband’s Liabilities	$166,307
Husbands Superannuation
[Husband’s Superannuation A]	Husband	$247,047
[Husband’s Superannuation B]	Husband	$376
[Husband’s Superannuation C]	Husband	$205
Subtotal Husband’s Assets and Superannuation after Deduction of Liabilities	Husband	$901,928
Plus Add-Backs	Husband	$173,587
Subtotal Husband	$1,075,515
Subtotal Wife	$119,339
Subtotal Joint	($268,902)
Nett Available for Division for purposes of calculation	$925,952

Contributions

166At the commencement of the trial, counsel for the wife clarified his client’s position. On the wife’s case, the overall contributions of the parties were appropriately to be assessed in the proportions of 60% to the husband and 40% to her. That concession reflected an acknowledgement of the significant initial financial contributions made by the husband at the commencement of the relationship.
167The husband’s position was somewhat more difficult to discern. As already noted, on his case the property of the parties, albeit after the proposed setting aside of a significant sum for P’s future needs, should be divided so as to see him receive an amount equivalent to 62% of its value. In his papers for the judge, the husband asserted that the non-financial contributions of the parties were equal, but that he had made “all the financial contributions to the marriage.” On its face, that submission appeared to indicate that the husband asserted that the division proposed by him is justified wholly or at least predominantly on the basis of the respective contributions of the parties.
168That said, later in his papers for the judge, the husband asserted that “there should be a 25% adjustment pursuant to s 75(2) in his favour” due to factors there listed.
169For obvious reasons, those contentions cannot be reconciled. I record that I made efforts during the course of the trial to clarify the husband’s submissions and the reasons for them, but with variable and somewhat limited success.
170What is clear, notwithstanding what is set out above, is that the husband argues that an overall assessment of the financial and non-financial contributions of the parties must very significantly favour him. It is also clear that he did not limit that argument to a proposition that contributions should be assessed in the proportions of 62% to him and 38% to the wife; indeed, he appeared to argue that assessment should favour him by a significantly greater margin. Given the concession of the wife implicit in her position as to the overall assessment of contributions and that there is no requirement that such assessment be expressed in percentage terms, such clarity as was achieved is sufficient to properly consider the husband’s case.
171It was common ground that, at the start of the relationship, the husband owned a significant portfolio of shares, which he had inherited. On his evidence, the value of that portfolio at the commencement of cohabitation was approximately $450,000; he was not challenged on that assertion. In addition, he owned a [Mercedes] motor vehicle and had some savings.
172The wife had no assets of significance at the commencement of cohabitation, having modest savings only.
173When the parties purchased the home in 2004, they did so with the assistance of a gift from the husband’s parents in the sum of approximately $26,500. While the husband and his mother subsequently sought to characterise that payment as a loan, given the passage of time without any suggestion of, or request for, repayment I comfortably find that the character of that payment differed from the character of the subsequent payment from the husband’s mother of a further $100,000, which I have found to be a loan. Nevertheless, the gift in 2004 is appropriately to be taken into account as a contribution on behalf of the husband.
174The husband made significant direct financial contributions during the relationship. He did so by working hard in senior positions, earning a significant income. On his evidence, his taxable income range increased over the course of the marriage from a modest income shortly after he completed his studies, to a peak in 2014 of $337,000. In each of the financial years 2011 to 2016, he earned a taxable income in excess of $200,000. Post separation, on his evidence his taxable income in 2017 was $92,194. Throughout, his income had two components: dividend income from the inherited shares he brought into the relationship, and personal exertion income.
175In the early years of the relationship, the wife did not work outside the home. From around 2010 for a fairly short period, she undertook some work in the husband’s business. In 2014 she commenced casual employment, and by 2015 was working full-time.
176Both parties, at least prior to separation, contributed their income to the benefit of the family. The husband’s direct financial contribution during cohabitation was significantly greater than that of the wife.
177That said, the wife was primarily responsible for duties as a homemaker and parent. The husband’s ability to earn a high income was dependent, at least in part, on his ability to travel overseas to work; for obvious reasons, when he was away working he could not sensibly be expected to make significant non-financial contributions.
178In the period since separation, both parties have continued to make contributions albeit in a variable manner. The observations recorded above regarding the care of P need not be repeated. The wife has, since an exclusive occupation order was made in June 2017, had the benefit of occupation of the home. Again, as noted above, there have been issues between the parties in relation to child support.
179All that said, the initial financial contributions made by the husband, the ongoing benefits received by the parties from those contributions during the course of the marriage, and the retention in the current property available for division between the parties of very significant amounts directly traceable to those initial contributions, must weigh heavily in the holistic assessment of the parties’ contributions overall.
180While the “leap from words to figures” is notoriously difficult to articulate, in my view the contributions of the parties are appropriately assessed in the proportions of 65% to the husband and 35% to the wife. I have considered the dollar value of the differential reflected in that assessment, and consider it appropriate in all the circumstances.

Matters to be considered pursuant to s 79(4)(d) to (g) inclusive

181Again, the wife’s position was clarified at the commencement of the trial. On her case, subject only to what is said below about the issue of add backs, an adjustment of 10% in her favour to what would otherwise be her contributions based entitlement should be made by reference to the matters set out in s 79(4)(d) to (g) inclusive. The only caveat to that proposition was this: if I determined that certain items which she would contend should be notionally added back for the purposes of the calculation of the parties respective entitlements should not be dealt with in that manner, she reserved the right to submit that an additional adjustment in her favour, over and above the 10% referred to, should be made by reference to s 75(2)(o).
182The husband was born in October 1970 and is in good health. The wife was born in January 1978 and is also in good health.
183The wife is employed as an administrator. At the time of swearing her financial statement on 29 March 2018 her salary was approximately $867 per week. In addition she received a family allowance benefit and child support.
184At the time of swearing his financial statement on 24 April 2018, the husband was working casually as an investment advisor, being paid approximately $200 per week. He otherwise relied on investment income which he asserted to be approximately $600 per week.
185The legislation requires a consideration of the “physical and mental capacity of each [party] for appropriate gainful employment”, not merely a notation of their asserted present income. The husband demonstrated over the course of the marriage a consistent capacity to earn a high income. Indeed, he quite properly made that point in support of his own contentions as to the appropriate assessment of the respective contributions of the parties. In cross examination, a table showing the after-tax income of the wife, the husband personally, and the company was put to him and he confirmed its accuracy. He disputed the proposition put to him that he could expect to earn a personal exertion income of between $150,000 and $170,000 per annum, by reference to what he described as a global downturn in the [economy]. That said, he acknowledged that he was currently trying to obtain work which would involve significant travel, describing himself as being “in the front-end of the negotiation” in that regard. He confirmed that he would be prepared to take on that sort of employment if he could get it.
186I am satisfied on the evidence that the husband’s ongoing earning capacity significantly exceeds that of the wife. I acknowledge his submission that he is just over seven years older than the wife and can accordingly expect to have fewer years of employment remaining in his future.
187Pursuant to the orders I propose to make, the wife will have the primary care of P. Neither party has any relevant duty to maintain any person other than P. The eligibility of the wife for modest government assistance does not impact on the determination to be made. The parties enjoyed a comfortable standard of living during the relationship and it is appropriate that, to the extent possible, they continue to do so. The traditional roles adopted by the parties for the bulk of their marriage, and issues associated with travel, likely have had some effect on the progression of the wife’s earning capacity but I do not regard that as a significant factor in the overall assessment required.
188Neither party is cohabiting with any person other than P. As noted, I do not propose to make orders sought by the husband in relation to the setting aside of capital to meet education and other expenses for P; it is to be expected that the normal child support assessment process will continue.
189I have considered also whether the husband’s conduct in breach of the injunction as discussed above, and the results of that conduct, should be further taken into account by reference to s 75(2)(o). As earlier noted, over and above the specific items notionally added back for the purposes of calculation, it is clear that the husband’s actions had an additional, albeit unquantifiable, impact on the amount of property remaining available for division between the parties at the time of trial. By way of example, he conceded that of the monies received by him from the sale of various shares, in breach of the injunction, he incurred some expenditure on day-to-day living, and unidentified business expenses, and purchased airfares for himself and P for $3,500.
190The evidence did not permit an analysis of what would be the value of the share portfolio at the time of trial had the husband not sold shares in breach of the injunction. I make no assumption as to what might have been the performance of the shares in those circumstances. While the capital gains tax liability arising from the sale of the shares has been crystallised earlier than would have been the case had, for example, the sale of those shares become necessary to effect a final settlement between the parties, I do not regard that acceleration as significant in all the circumstances.
191That said, to a significant degree the issues raised by the wife are addressed by the determinations I have made allowing various claimed notional add backs.
192I note further that a significant component of the wealth available for division between the parties is in the form of superannuation which is to be retained by the husband, neither party having sought orders for superannuation splitting. Given the husband is only 48 years of age, and will accordingly be unable to access his superannuation for some considerable time, that is a matter appropriately taken into account in reducing what might otherwise be the adjustment in favour of the wife for prospective factors.
193I take into account also the reasonable likelihood that the husband may need to sell at least some shares in the short to medium term, and that capital gains tax will likely be incurred by him in that process. The evidence does not permit any quantification of that possible additional liability.
194I take into account also the likelihood that the balance in the ANZ cash investment account is lower than it was at the date of trial, given the agreement of the parties to service the home loan from that source. That, in turn, will of course have prevented the debt on the loan increasing.
195Having taken all those matters into account, I conclude that an adjustment of 7.5% in favour of the wife to what would otherwise be the contributions based result is appropriate.

Form of settlement

196It follows that I conclude that the available property and superannuation of the parties, after taking into account all proper liabilities and notionally adding back sums for the purpose of calculation, should be divided in the proportions of 57.5% to the husband and 42.5% to the wife. I record that I have considered the dollar value of the differential, and am satisfied that the outcome is just and equitable in all the circumstances.
197Certain difficulties arise in relation to the sale of the home. For the purposes of trial the parties agreed the value of the home at a figure less than the amount of the debt secured against it. That said, the hope was expressed that the property might sell for a higher figure. Given that uncertainty, orders must be crafted to deal with the sale of the home, the discharge of the liability secured against it, and the distribution of any surplus or the meeting of any shortfall, in isolation from the division of the other property and superannuation.

198The parties must, for the reasons already noted, retain their own superannuation. They agree that each should retain their own chattel property. It is appropriate for the husband to retain the remaining share portfolios should he choose to do so.
199To achieve the overall division I have determined to be appropriate, on the figures agreed or determined for the purposes of trial, the wife must receive property and superannuation, after taking into account any liabilities retained by her and any notional add backs, totalling $507,813. She will retain property to the value of $27,113, superannuation to the value of $19,537, and the benefit of add backs totalling $72,689. Accordingly, and leaving aside for the moment any issues regarding the sale of the home, she must receive $388,474.
200The obvious source for that payment is the ANZ Cash investment account in the name of the husband, which at trial had a balance of $361,488. Any balance in that account, after payment to the wife, may be retained by the husband.
201As foreshadowed, I propose to make orders which will afford the parties the opportunity to try and sell the home at a figure higher than the value which they agreed for the purposes of trial, and to share proportionately in any net proceeds. Similarly, I propose to make orders which will ensure that they remain proportionately liable for any shortfall.

Proposed orders

202Subject to any submissions as to form, I propose to make the following orders:
Parenting orders
1.The Wife have sole parental responsibility for the child, [P], born [in] 2006 (“the child”).
2.The child live with the Wife.
3.The Husband spend time with the child during school terms, as follows:
(a)Each alternate weekend, from the conclusion of School on Friday, or 3.00 pm if a non-school day, until the commencement of School on Tuesday, or 9.00 am if a non-school day; and
(b)At other times as agreed between the parties in writing.

4.The parties spend time with the child as follows:
(a)During the Term 1, 2 and 3 School Holidays, the child spend alternate weeks with each party;
(b)During the Summer/Christmas School holidays the child spend alternate weeks with each party;
(c)On Special Occasions such as Christmas Day, Boxing Day, New Year’s Day, birthdays, Easter, Mother’s Day and Father’s Day etc., the child spend time from 12.00 pm on the day to 10.00 am the following day with the party in whose care he would otherwise not be; and
(d)Such other times as may be agreed between the parties in writing.

5.Other than in the event of an emergency (where mobile telephone contact should be used), for the purposes of these Orders the parties communicate by way of email or SMS only and only in relation to the child.
6.Each party shall have liberal telephone communication with the child.
7.For the purpose of handover:
(a)If a School day, the Husband deliver and collect the child to and from School at the commencement and conclusion of his time; and
(b)If a non-School day, the Husband deliver and collect the child to and from:
(i)Dome Café in [Suburb A]; or
(ii)Otherwise, as agreed between the parties in writing.

8.The parties shall keep each other informed of their home address and contact details and notify the other party within 7 days of any changes to the same.
9.That the parties be restrained by an injunction and an injunction is hereby granted restraining each of the parties from changing the child’s principal place of residence from the Perth region without the written consent of the other party.
10.For a period of no longer than one week during the Term 1, 2 and 3 School Holidays and 3 weeks during the Term 4 School Holidays, both parties have liberty to take the child outside of Western Australia and/or from the Commonwealth of Australia for the purpose of holidays during their time with the child and provide the other party with the following, at least 4 weeks prior to the date of departure:
(a)A copy of itineraries for travel, including the date of departure and the date of return;
(b)Notification of any change to travel plans and itineraries;
(c)Contact details, where possible, including a mobile phone number and a designated contact time each day be provided for the other party to communicate with the child; and
(d)Otherwise, as agreed between the parties.

11.The Wife to hold the child’s passport and birth certificate and provide use of these to the Husband for the facilitation of travel and identity checks within 14 days’ when necessary, provided:
(a)A written request is provided by the Husband stating the reason; and
(b)The passport is not to be unreasonably withheld.

12.The parties otherwise do all acts and things, and sign all documents, to ensure the child has and maintains a passport for the purpose of overseas travel.
13.Each party shall be restrained by injunction from changing the child’s School without the prior written consent of the other party.
14.Each party authorise and direct the School at which the child may, from time to time, attend to provide each of them with copies of:
(a)Any school reports and access to any portfolio work of the child;
(b)Any reports on behavioural issues; and
(c)Any school circulars or notices concerning functions, parent/teacher nights and other school activities to which parents are invited, as soon as practicable after the same are issued.

15.Each party be at liberty to attend significant school activities, presentations and other special events which parents are permitted to attend.
16.Each party shall be responsible for ensuring that the child attends any scheduled school or extra-curricular activities while the child is in their care.
17.Each party provide the other with notice of any medical appointments or significant medical issues concerning the child, including details of any treating practitioner, within 48 hours and, if requested to do so by either of them, authorise any treating practitioner to discuss the child’s medical issues with the other party.
18.Except in the case of an emergency, or other exceptional circumstances, the child attend his usual Family Medical Centre for any appointments with his general practitioner or such other Medical Centre as agreed by the parties.
19.Each party shall be responsible for ensuring that the child attends any recommended or scheduled medical, psychologist or counselling appointments while the child is in their care.
20.The parties authorize and instruct each medical and dental practitioner attended by the child to release to both parties such information regarding the child’s medical and dental health as may be reasonably requested from time to time.
21.The parties each be restrained by injunction from:
(a)Denigrating or describing in negative terms the other party in the presence of or within the hearing of the child;
(b)Denigrating or describing in negative terms the other party’s family members and friends in the presence of or within the hearing of the child;
(c)Discussing the proceedings in the Family Court of Western Australia, whether historical or current, with the child, or with any other person in the presence of or within the hearing of the child;
(d)Consuming alcohol to excess or using illicit substances 12 hours prior to or during time spent with the child and ensure the child is not exposed to a person or people consuming alcohol to excess or using illicit substances; and
(e)Allowing any third party to engage in any of the actions or conduct described in paragraph 21 a - d above.

22.The parties are to provide reasonable notice to each other of any inability to spend time with the child in accordance with these Orders.
23.The parties are to strictly comply with these Orders, unless otherwise agreed in writing.

Property orders
24. Within seven days, the husband pay to the wife the sum of $388,474.
25.The parties forthwith do all acts and sign all necessary documents to effect the sale of [the home].
26.The parties shall effect such repairs and improvements as recommended by the Agent appointed by them for the purposes of the sale with any costs to be paid from the parties’ offset account, or once such account is exhausted in the proportions of 57.5% by the Husband and 42.5% by the Wife.
27.In the event that the parties are unable to agree on the sale price for the [home], they shall do all acts necessary to:
(a)Request the Director of the Real Estate Institute of Western Australia nominate a valuer to value the property;
(b)Jointly instruct the valuer so nominated; and
(c)Each meet one half of the cost of such valuation.

28Thereafter, the parties each do all things necessary to accept any unconditional offer to purchase the [home] at a price equal to or greater than the value determined by the valuer appointed pursuant to these orders.
29The parties have liberty to apply in relation to the terms and conditions of sale of the [home].
30.Upon the sale of the [home] the parties do all things necessary to disburse the proceeds of sale as follows:
(a)In payment of any real estate agent and settlement fees and commissions;
(b)In payment of any outstanding outgoings on the [home] including all rates, taxes and utilities; and
(c)In payment of the amount required to discharge the debt secured against the [home].

31.In the event that the proceeds of sale of the [home] are insufficient to meet the expenses referred to in the immediately preceding paragraph of these orders and secure the discharge of [the mortgage]:
(a)The Husband shall pay 57.5% of any shortfall at settlement on the sale; and
(b)The Wife shall pay 42.5% of any shortfall at settlement on the sale.

32.In the event that, following payment of the expenses and debts referred to in paragraph 30 of these orders, and the discharge of the mortgage, there remains a surplus of funds from the proceeds of sale of the said property, the parties do all things necessary to disburse any such surplus as follows:
(a)In payment of 57.5% of the said surplus to the Husband; and
(b)In payment of the balance then remaining to the Wife.

33.The Respondent Husband be responsible for and pay as and when they fall due all minimum repayments required by the lender on any loans secured against the [home], until the sale and settlement of the said property has been completed.
34.Pending settlement on sale of the [home] the parties each pay as and when they fall due all rates, taxes and insurances on the said property, in the proportions of 57.5% by the Husband and 42.5% by the wife.
35.Pending settlement on sale of the [home] the Wife pay as and when they fall due all outgoings on the said property other than as expressly ordered in paragraphs 26, 33 and 34 above.
36.The Husband indemnify the Wife against any liability of the parties or either of them to his mother, [Ms H].
37.At settlement on sale of the [home] the Husband pay to his mother any payment she may demand as a condition of the withdrawal of her caveat against the said property.
38.Within 14 days of the relevant documents being provided to her or her solicitors by the Husband or on his behalf, the Wife do all things necessary and sign all necessary documents prepared at the Husband’s cost to resign as a director of [the Business] and transfer the whole of her legal and equitable interest in the Business to the Husband.
39.On her resignation, the Wife be indemnified by the Husband and the Husband keep her indemnified against any liability of whatsoever nature arising from the entities referred to in the preceding Order, including any outstanding accountancy fees; and monies owing to the Australian Taxation Office.
40.The Wife’s interest, if any, in the following vest in the Husband:
(a)[The Business];
(b)[Trust A];
(c)The [Holden Motor Vehicle];
(d)The [Audi Motor Vehicle];
(e)The Respondent Husband’s Superannuation entitlements;
(f)The furniture and chattels in his possession;
(g)His jewellery;
(h)Any shares in his name; and
(i)Except as otherwise specified in these Orders, any monies held in any bank accounts registered to his sole name.

41.The Husband’s interest, if any, in the following vest in the Wife:
(a)The [Kia Rio Motor Vehicle];

(b)The Applicant Wife’s Superannuation entitlements;
(c)The furniture and chattels in her possession;
(d)Her jewellery;
(e)Any shares in her name; and
(f)Except as otherwise specified in these Orders, any monies held in any bank accounts registered to her sole name.

42.Each party promptly execute any necessary document prepared at the cost of the other party and requested by that party to be executed to give effect to the orders contained in paragraphs 40 and 41 of these orders.
43.Unless otherwise specified in these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all other property, financial resources and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank record thereon, or 50% if joint, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party be solely liable for and indemnify the other against liability encumbering any item of property which that party is entitled to pursuant to these orders, including any taxation liability accruing prior to the date of these orders.

44.All outstanding applications and responses seeking parenting orders or orders as to the alteration of property interests otherwise be and are hereby dismissed.
45.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
46In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(b)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

47.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 45 and 46 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate
12 JUNE 2019