Hourd & Hourd

FAMILY COURT OF AUSTRALIA

HOURD & HOURD

[2009] FamCA 711

FAMILY LAW – CHILDREN – whether the presumption of equal shared responsibility has been rebutted pursuant to s.61DA(4) – whether it is in the best interests of the two children that the Applicant be permitted to live with them in Brisbane rather than Sydney – consideration of the benefit to the children of a meaningful relationship with each of the parties – relevant matters in relation to periods of time which the Respondent may spend with the children

FAMILY LAW – PROPERTY ADJUSTMENT – weight to be given to financial contributions made by the Respondent – weight to be given to relevant matters pursuant to s 75(2) including financial resources – orders that are just and equitable

Family Law Act 1975 (Cth) ss 60(5), 60B, 60CA, 60CC, 61DA(4), 65AA, 65DAA, 75(2), 79

Preece and Preece (1981) FLC 91-048
Smith and Smith (1991) FLC 92-261
Elsey and Elsey (1997) FLC 92-727
AMS v AIF (1999) FLC 92-852
U v U (2002) FLC 93-112
Taylor & Barker (2007) FLC 93-345
Hickey & Anor and Attorney-General for the Commonwealth [2003] FamCA 395
Mazorski & Albright [2007] FamCA 520

APPLICANT:

Ms Hourd

RESPONDENT:

Mr Hourd

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

6841

2007

DATE DELIVERED:

6 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

26 - 27 February; 2 March 2009

Written submissions

17, 23 March 2009
16, 20 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

G. Johnston

SOLICITOR FOR THE APPLICANT:

Gells Lawyers

COUNSEL FOR THE RESPONDENT:

J. Lloyd

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C. Sperling

Orders

PARENTING ORDERS

That the parties have equal shared parental responsibility in relation to their two children C born … June 2004 and L born … May 2006 (“the two children”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the two children live with the Applicant.
That the Respondent may spend time and communicate with the two children as follows:-
During School Term (irrespective of the youngest child attending preschool)
(a)In accordance with the current sequence pursuant to Interim Orders made 11 November 2008, namely each alternate weekend from 9am Saturday until Monday immediately prior to the commencement of school or preschool and in each alternate week from Monday 3.30pm until Wednesday 9am changeover of care to take place in the B area or at the child day-care centre in accordance with current arrangement or as varied by agreement between the parties from time to time.
(b)On Fathers Day from 9am until 6pm in the event that it falls on the weekend when the Respondent does not have the two children in his care.
(c)From 3pm 24 December to 3pm 25 December in each even numbered year and from 3pm 25 December to 3pm 26 December in each odd numbered year.
(d)On the birthdays of each of the two children by agreement between the parties or failing agreement as follows:-
(i)In the event that the birthday falls on a weekend when the two children are not in the care of the Respondent then from 9am until 2pm in each even numbered year and from 2pm until 6pm in each odd numbered year;
(ii)In the event that the birthday falls on a school day when the two children are not otherwise in the Respondent’s care then from after school until 6pm.
End of school term holiday periods
2009 and 2010
(e)For four (4) overnight successive days commencing at 9am and concluding at 6pm in each school holiday period save and except for the school holiday period following the conclusion of the last school term for two (2) block periods of four (4) successive overnight days no less than one (1) week apart nominated in writing by the Respondent to the Applicant no less than six (6) weeks in advance or failing such notice as nominated by the Applicant to the Respondent in Writing.
(f)For such alternative or other periods as the parties may agree upon in writing unless urgency prevents one or other from doing so.
2011 and thereafter
(g)For half of all school holiday periods being the first half in each even numbered year and the second half in each odd numbered year provided the latter shall commence at 9am on the first day of such periods and shall conclude at 6pm on the last Saturday prior to the commencement of the new school term.
(h)For such alternative or other periods as the parties may agree upon in writing unless urgency prevents one or other from doing so.
(i)Changeover of care of the two children for all holiday periods commencing this year shall take place as provided in order 3(a) or as varied by agreement between the parties from time to time.
That Order numbered 3(a) is suspended on Mothers Day whereupon the parties shall ensure that the two children are in the care of the Applicant from 9am until the commencement of the next period of time that they are due to be in the care of the Respondent.
That in the event of the two children being in the care of the Respondent on their birthdays then they shall spend time with the Applicant as agreed between the parties or failing agreement as follows:-
(i)In the event that the birthday falls on a weekend when the two children are not in the care of the Applicant then from 9am until 2pm in each even numbered year and from 2pm until 6pm in each odd numbered year;
(ii)In the event that the birthday falls on a school day when the two children are not otherwise in the Applicant’s care then from after school until 6pm.
That each of the parties shall ensure that the other has his or her current land line and mobile telephone numbers and email address for the purposes of communication between them in relation to the matters affecting the two children or either of them.
That the party with whom the two children are living shall do all things necessary to facilitate the two children speaking by telephone to the other party between the hours of 6pm and 7pm each day and between 9am and 10am on Christmas Day or as otherwise agreed upon provided that in the event of the two children or either of them not being available to speak to that party then the party with whom the two children or either is living shall ensure that such telephone conversation is able to take place as soon as possible that day.
That in the event of the two children or either of them suffering a serious illness or injury whilst in the care of one of the parties then that party shall immediately inform the other party of the detail thereof and the name, address and telephone number of the relevant medical practitioner and/or hospital administering or likely to administer treatment for that child.
That each of the parties shall furnish all written authorities and directions as may be required from time to time to enable the parties to receive copies of all preschool and school reports, notices and correspondence in relation to the two children.
That each of the parties shall ensure that the two children are able to attend and participate in all sport, extra-curricular and social activities as are reasonable during such periods that the two children or either of them are in the care of either of the parties.
That each of the parties is restrained from making any derogatory remark about the other or any of his or her relatives or friends to or in the presence of the two children or either of them.
That the Applicant is restrained from altering the place of permanent residence of the two children or either of them to a place outside of the Sydney metropolitan area without the prior written consent of the Respondent or Court Order.
That on or before 5pm 13 August 2009 each of the parties shall instruct their legal representatives to attend upon the Manager of the Child Dispute Section in the Sydney Registry of the Court or her nominee for the purpose of obtaining a recommendation of a suitable course to be completed by each of the parties together or separately as each party may desire to advance cooperative parenting and communication between them in relation to all matters affecting the two children or either of them.
That each of the parties shall enrol and complete the course nominated in accordance with order 13 as soon as possible and shall provide written details of such course to the other on or before 5pm 20 August 2009 and subsequently shall provide to the other upon completion of the course a certificate or letter from the person or organisation conducting such course to the effect that the party concerned has satisfactorily completed the course.

Property Settlement Orders

That the parties forthwith sign all documents and cause all things necessary to cause a sale by public auction of the property situate at and known as B property (“the former matrimonial home”) for a reserve price of $1,900,000 or such other amount as the parties may agree upon in writing to be conducted by an auctioneer agreed upon between the parties in writing or failing agreement as nominated by or on behalf of the President of the Real Estate Institute of New South Wales.
That the parties shall retain a solicitor for the purpose of carrying out the conveyancing work in relation to the sale of the former matrimonial home as agreed upon between them in writing or failing agreement as nominated by the President of the Law Society of New South Wales.
That in the event of the parties not receiving an offer for purchase of the former matrimonial home at or exceeding the reserve price then they will join in the sale of it at the best price reasonably obtainable by them unless otherwise agreed in writing.
That the parties shall cause the proceeds of sale of the former matrimonial home to be applied in payment of the following:-
(i)Real estate agent’s commission and auction expenses.
(ii)Legal costs of sale.
(iii)Discharge of the mortgage.
(iv)An amount equal to 47% of the balance in favour of the Applicant.
(v)The remaining balance to the Respondent.
That the Respondent transfer to the Applicant his shareholding and any loan account to his credit in G Consultants Pty Limited (“the company”) and shall resign from all offices held in that company on or before 5pm 20 August 2009.
That the Applicant shall indemnify the Respondent against all claims that may be made against him arising out of any loan account indebtedness that he has or may have to the company.
Declare that each of the parties is the sole owner of all items of personalty in his or her possession, power or control.
That the Applicant may transfer to the exclusive use of the Respondent all or any of the wine stored in the former matrimonial home upon him simultaneously paying to her the current wholesale market value of such wine as agreed upon in writing or failing agreement as determined by an independent agreed valuer whose fees shall be met by the parties equally.

Procedural Orders

That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Hourd & Hourd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6841 of 2007

MS HOURD

Applicant

And

MR HOURD

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the Applicant Ms Hourd (who for convenience I shall refer to as “the Applicant”) seeks parenting and property settlement orders in accordance with her Application filed 31 March 2008 subsequently amended without objection by the Minute of Orders sought by her being Exhibit 3.
The Respondent Mr Hourd (who for convenience I shall refer to as “the Respondent”) seeks parenting and property settlement orders in accordance with his Response filed 17 April 2008 subsequently amended without objection in accordance with the Minute of Orders sought by him being Exhibit 4.
The parties cohabited for a period of almost ten and a half years which commenced during April 1996 and continued until they finally separated on 26 August 2006.
The parties married in September 1998.
The marriage was dissolved by a divorce order made 17 December 2007.
The Applicant is 37 years of age and employed on a part-time basis as a consultant.
The Respondent is 38 years of age and employed as a company executive.
The two children of the marriage are:
(a)C, 5 years of age, having been born in June 2004 (“C”). C attends E Public School.
(b)L, 3 years of age, having been born in May 2006 (“L”). L attends B Children’s Centre three days per week.
The two children have lived with the Applicant continuously since the parties separated subject to regular substantial periods of time spent in the care of the father. The two children have lived with the Applicant in the former matrimonial home, at B, of which the parties are the registered proprietors.
The Respondent has re-partnered with Ms D. They have lived together in her home since March 2008. Ms D’s daughter, O, aged nine years lives, with them subject to periods of time that she regularly spends with her father in what Ms D describes as “a flexible shared care arrangement[1]”.
[1] Affidavit sworn 12 February 2009 paragraph 4.
The principal issues for determination in the parenting proceedings are whether on the application of the Applicant:
(a)the Applicant be granted sole parental responsibility in respect of the two children. Counsel for the Applicant made it clear during his opening that the Applicant relied upon the best interests ground[2]; and
(b)whether it is in the best interests of the children that the mother be able to relocate with them to live in Brisbane. That issue involves the primary and additional considerations pursuant to s 60CC.
[2] Section 61DA(4).
Those two issues dominated the evidence in the hearing. There are other issues in the parenting proceedings which also require determination.
In relation to the property settlement proceedings, the Applicant sought an order for the parties to join in the sale of the former matrimonial home in the event that she is permitted to relocate with the two children to live in Brisbane.
However, in the event that the latter application is unsuccessful the Applicant sought an order that the Respondent transfer to her the whole of his right, title and interest in the former matrimonial home on certain terms. On 2 March 2009 counsel for the Applicant stated that she no longer sought an order to permit her in effect “to purchase” the Respondent’s interest in the former matrimonial home.
The Respondent seeks an order requiring the parties to join in the sale of the former matrimonial home, irrespective of the success or otherwise of the Applicant’s application for an order to permit her to relocate with the two children to Brisbane. That order in principle is the subject of agreement. However, the division of the net proceeds of sale requires determination.

Historical background

The following are further brief relevant historical matters.
In about April 1997 the parties jointly purchased the property at T Street in E (“the E property”).
In about 2001 the parties carried out renovations to the E property.
In about November 2005 the parties sold the E property.
In November 2005 the parties jointly purchased the former matrimonial home.
On 23 April 2008 interim parenting orders were made by Loughnan JR. In substance those orders provided for the living arrangements for the two children to be in accordance with the parenting plan dated 5 August 2007 attached to the Application of the Applicant filed 31 March 2008 unless the parties otherwise agreed. That parenting plan provided for the Applicant to be the primary carer of the two children, with varying periods of time to be spent by them with the Respondent on a fortnightly cycle. The orders provided for either of the maternal grandparents to supervise the time spent by the two children with the mother. In addition, the mother was restrained from relocating the residence of the two children from her current address. An Independent Children’s Lawyer was appointed.
On 25 January 2008 the Applicant was admitted to hospital following her attempted suicide.
On 27 January 2008 the Applicant was discharged from hospital.
During the period 29 January 2008 to 21 February 2008 the Applicant was a voluntary inpatient at the S Clinic.
On 12 May 2008 Le Poer Trench J made orders by consent which provided for Dr R, Child and Family Psychiatrist to be appointed as the single expert witness for the purpose of inquiring into and reporting upon matters affecting the welfare of the two children.
The orders made 23 April 2008 were varied to provide for additional supervisors.
On 27 May 2008 Loughnan JR made interim orders in relation to supervision of the time spent by the two children with the mother.
On 15 October 2008 day one of the hearing proceeded before me in accordance with the Less Adversarial Trial procedure. Orders were made by consent consolidating the hearing of the proceedings for parenting and property settlement orders and that the property settlement proceedings be conducted in accordance with the Less Adversarial Trial procedure. Directions were made.
On 24 October 2008 the issues for determination on the subsequent hearing of the consolidated proceedings were defined. Directions were made.
On 11 November 2008 Loughnan JR made orders by consent pending further order. Order 1 made 23 April 2008 as varied was discharged with the effect that supervision of the Applicant’s care of the two children ceased. In addition, an order was made that the living arrangements for the two children be in accordance with the parenting plan previously referred to unless the parties agreed to the contrary and provided that one of the maternal grandparents or either of their spouses or other person agreed upon perform the changeover arrangements pursuant to Order 6 made 27 May 2008. These directions have been complied with.
On 26 and 27 February and 2 March 2009 the evidence was completed. Directions were made for lodgement and service of written submissions.

The parenting proceedings

I will determine these proceedings prior to the determination of the property settlement proceedings in accordance with the usual practice and the written submissions that have been lodged.

Relevant legal principles pursuant to the Family Law Act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.” (Emphasis added)
That provision is re-emphasised in s.65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss.60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s.60B, which set out the Objects of the provisions of Part VII of the Act in relation to a child and the principles that underlie those Objects. In substance, they include the benefit to a child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. (Emphasis added)

The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of their child; and
(e)a child’s right to enjoy its culture including with others who share that culture.
It is important to note that s.60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” (emphasis added). To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[3], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[3] B and B, Family Law Reform Act 1995 (1997) FLC 92-755.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.[4]
[4] B and B, ibid.
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[5]
[5] B and B, ibid.
The legislative amendments which came into force on 1 July 2006 provide continued emphasis upon the paramountcy principle of the best interests of the child, both for the purpose of making a parenting order as well as the exception to the principles underlying the Objects of Part VII to which I have also referred.

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[6] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[6] Section 60CC(1).
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[7]
[7] Section 60CC(2).
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Fortunately, so far as the parties and the two children are concerned, the second primary consideration does not apply in these proceedings. Whilst there are allegations of verbal and written “abuse” as between the parties, given the interpretation of that word in s 4(1) that type of abuse is not an element of the second primary consideration. Rather, it is relevant to the additional consideration of the capacity of the parties to provide for the emotional needs of the two children as such needs can only be enhanced by a civil and constructive level of communication between the parties, free from the tensions and difficulties that currently exist to which the children may be sensitive now or in the future. I will make findings in relation to the abusive level of communication between the parties in that context.[8]
[8] Section 60CC(3).
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both the first “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the two children and relevant factors

Given the young ages of the two children, it is not surprising that there is an absence of direct evidence of their relevant views.
However, having regard to the nature of the relationships referred to subsequently, I infer that the two children have the desire to spend substantial periods of time with each of the parties and other persons to whom reference will be made.

The nature of the relationship of the two children with each of the parties and other persons

There is no issue that the two children have a loving relationship with each of the parties.
Section 60CC(3)(b)(ii) whilst referring to “other persons (including any grandparent or other relative of the child)” does not provide a limitation so far as “other persons” are concerned. Implicitly, “other persons” are those of significance in the lives of the two children.
There is no issue that the two children have fond and positive relationships with members of the extended families of each of the parties as well as Ms D and O.

The willingness and ability of each of the two children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent

There is no issue in relation to each of the parties so far as this matter is concerned except for the following.
Each of the parties’ approach to this matter has been underscored by their conflicted relationship in different ways. So far as the Applicant is concerned, there has been the continuing feelings of hurt and betrayal resulting from the breakdown of the marriage, the separation of the parties and the Respondent’s relationship and living with Ms D. Certain of her communications to the Respondent have been as abusive as his have been to her.
With regard to the Respondent, his abusive written and verbal communications with the Applicant over a considerable period of time since separation and even shortly prior to the continuation of the hearing which commenced on 26 February 2009 has compromised the willingness and ability that he otherwise has to facilitate and encourage a close and continuing relationship between the two children and the Applicant.
The Applicant’s proposal to relocate with the two children to live in Brisbane is, of course, a relevant factor.

The likely effect of any changes in the two children’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the two children have been living

This matter lies at the heart of the proceedings in view of the proposal of the Applicant to relocate with the two children by residing permanently with them in Brisbane.
This issue must be considered against the background of the periods of time that the two children have spent in the care of the Respondent since the parties separated on 26 August 2006.
At the time of separation, the two children were then 2 years and 3 months of age respectively. At separation and since, the Applicant has been the primary carer of the two children. Indeed, when the parties separated L was breast-fed and that continued for some time.
There appeared to be two distinct periods when the Respondent has cared for the two children since separation due in part of the ages of the children and in accordance with the arrangements made between the parties themselves and subsequently pursuant to interim parenting orders.
I accept the evidence of the Respondent, which was not challenged, that for the period from separation until February 2007 he saw and spent time with the two children during two or three evenings per week as well as during weekends and the majority of such periods, the approximate range of duration not being specified, took place at the former matrimonial home. In January 2007 the periods of time that were spent were increased to overnight. The evidence is not more specific.
For the period from February 2007 to the commencement of the hearing, the general pattern has been that the Respondent spent periods of time with the children in his care each alternate weekend from Saturday morning until Monday morning (presumably prior to the commencement of school or day care) as well as from Monday 3.30pm until Wednesday 9am in each alternate week. Changeover of care took place in the B area or at the children’s day care centre.
In addition, periods of time have been spent by the two children in the care of the Respondent and/or the paternal grandparents during the January holiday periods in 2007, 2008 and 2009. A further period of time was provided for the care of the two children by the Respondent from 18 June 2008 to 2 July 2008 with the two children to be returned to the Applicant after each block period of four nights.
Interim parenting orders were made as previously described.
The Respondent did not have the care of the two children for two significant periods, namely when he travelled overseas on holidays with Ms D for approximately ten nights in mid 2008 and a further period of 18 nights during 24 December 2008 to 11 January 2009.
Consequently, I find that the two children have spent regular periods of increasing and significant periods in the care of the Respondent and at least since early 2008 substantially in the home of the Respondent and Ms D with whom O has also lived.
In support of the Applicant’s proposal that she and the two children relocate to live permanently in Brisbane, the Applicant describes in her affidavit the benefits to the two children as well as herself that would flow from such relocation. They include the support of the maternal grandparents and other members of the Applicant’s extended family who live in Brisbane, especially against a background of the Applicant’s close relationship with the maternal grandparents, also shared by the two children.
The Applicant contends that the support, care and interaction that various members of her extended family can provide for her and the two children can only be for their benefit. The maternal grandmother gave evidence. The maternal grandmother provided a detailed review of the large periods of time spent by her living with the Applicant and the two children last year and this year during which she provided daily support for them and care of the two children, as well as her proposals for the future care in that regard. The maternal grandmother states that she and her husband will be able to provide accommodation in their home for the Applicant and two children should they be able to relocate to live in Brisbane. Alternatively, should the orders sought by the Applicant not be made, then she and other members of the Applicant’s extended family will arrange between them, as they have in the past, to regularly visit and stay in Sydney for short periods such as one or two days each month, as well as during school holidays and on other special occasions so as to continue the close relationship that they have with the Applicant and the two children in all aspects. Her evidence is that she is prepared to facilitate periods of time that the Respondent may spend with the two children in Brisbane by making available, if vacant, her holiday apartment for the accommodation of the Respondent, Ms D and the two children. I accept the evidence of the maternal grandmother who I found to be a sincere and reliable witness.
The Applicant considers that she and the two children will be able to enjoy a better quality lifestyle in Brisbane due to the lower cost of accommodation compared to Sydney, with the result that there will be less financial pressure on her and a consequent increase in her availability to care for the two children, without the need to extend her income earning activities.
On the basis that the Applicant is permitted to relocate the residence of herself and the two children from Sydney to Brisbane, the Applicant proposes that the Respondent be able to spend periods of time with the two children being four days a month in Sydney; three or four days each month at the Respondent’s selection in Brisbane; four days in Sydney in each school holiday period, except for the December-January school holidays when the relevant periods of time be two blocks of four days in Sydney. Other special occasions are referred to.
The Respondent, in opposing the Applicant’s proposals for relocation of the two children to reside permanently in Brisbane, states that whilst he would endeavour to take every opportunity available to him to see the two children, there are significant personal and financial difficulties that he would face as detailed in his affidavit. He contends that he is unable to continue to be employed by his current employer in Brisbane or indeed anywhere else in Queensland and that he is not readily employable at his level of management in Brisbane.
In addition, the Respondent contends that his active involvement in the children’s care and other aspects of their development, including but not limited to school and day care, will be detrimentally affected with a consequential adverse impact on their relationship with him. He anticipates an ongoing lack of positive communication from the Applicant, exacerbated by what he contends is “the level of conflict she holds with me and my partner [Ms D]”.[9] He considers that all of those matters are likely to adversely impact upon the relationship that the two children have with him, Ms D and members of his extended family.
[9] Affidavit sworn 12 February 2009, paragraph 29.
Dr R gave evidence in relation to this particular matter comprising Exhibit 2 and her oral evidence. For the reasons explained by Dr R in Exhibit 2, her recommendation is that the children should remain living in Sydney with the Applicant and that support should be encouraged from the maternal grandparents. In addition, Dr R recommended that the Applicant continue to receive the benefit of consultation with her treating health professionals as they advise.
During the course of her oral evidence, Dr R laid importance upon L in particular, not having to be worried as to whether either of his parents is available should he need them and consequently has a concern that should the children reside in Brisbane, they “will have anxiety about their father being available to them, and it is not quite the same as four days one week. There could be lengthy periods of time where they have no physical contact with their father, and I know the mother’s proposition is they could talk to him over a webcam and the children could be reassured that way. And I think telephonic communication is reassuring to a certain extent, but you can only ask the child to hang on with that for so long, and I am talking a matter of days, a week. But to ask the child to hang on for longer without actually seeing their parent and being comforted by the parent, is really stretching the attachment bond.” Dr R considered it was important for the father to be physically available to fulfil a variety of aspects of the parenting role.
Dr R also expressed the view that the Applicant would be supported by the distance between herself and the Respondent, that is, by her being in Brisbane where she would be comforted by her family.
Dr R considered that it was a high probability that the father would not be made a party to the mother’s decisions concerning the two children.
With regard to the parties remaining living in Sydney, Dr R stressed the desirability of them becoming “more emotionally detached from each other” and in that regard from what she had read, the Respondent’s communications were “provocative and judgemental.” Dr R considered that the parties would be assisted by consultations with a psychologist.
Dr R agreed with the proposition that for children of a tender age, it was important for them to not only have a tactile physical relationship with their parents where appropriate, but to have it frequently. In that regard, Dr R was of the view that there is a risk of lessening of the existing bond with a parent where there is separation from continuity of contact between the parent and the child.
Based on the copy affidavits and subpoenaed clinical notes provided to Dr R concerning the Applicant, Dr R agreed that on a combination of that information and her observations of her, Dr R’s conclusion was that the Applicant was functioning reasonably well.
With regard to a comparison of the periods of time that the Respondent had been spending with the children as opposed to the Applicant’s proposal should she live in Brisbane with the two children, “as the children get older, they will be needing more things from him, things like spending time playing with them, being part of his world so they can learn. I mean, it’s sort of learning by your parents.” Dr R also pointed to the other roles of parenting such as being part of the sporting activities of children and of the lives of their friends. That would be disrupted by geographical distance.
Dr R was of the view that the benefits of the proposed relocation in effect do not outweigh the disadvantages. In that regard, one also has to take into account the improvement in a parent’s parenting ability given a parent’s better emotional environment, that is to consider whether the loss which would accompany a relocation (of children) is improved by a subtle change in parenting.
I accept the evidence of Dr R which I found to be professional, sensitive and consistent, in which she took into account all of the changes and benefits relevant to parenting of the two children by the parties, both overt and subtle. I also accept the evidence of each of the parties regarding their concerns and perceived implications of the Applicant’s proposal to relocate with the two children to Brisbane. As a consequence I find that the likely effect of any changes in the circumstances of the two children, should the Applicant be able to relocate with them to live permanently in Brisbane, is that the Applicant is likely to feel under less emotional pressure due to the distance that has been placed between herself and the Respondent and her general well-being would be enhanced by the family support that will be provided to her and the two children, in the various ways described in her affidavit evidence. The likely result would be for the benefit of the two children, both directly and also indirectly through the enhancement of the Applicant’s parenting of them.
However, a likely effect is also that the parenting of the two children by the Respondent in the short term and long-term will be restrained due to them living interstate, the lack of ability of the Respondent to move to Brisbane from a realistic viewpoint and the containment of his involvement as a parent in all aspects of parenting referred to in Dr R’s evidence, compared to the potential in that regard should the two children to continue to reside in Sydney.

The practical difficulty and expense of the two children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the two children’s right to maintain personal relations and direct contact with both parents on a regular basis

Neither of the parties gave evidence of any particular practical difficulty and expense relevant to this matter which have arisen in their current circumstances.

However, there are obvious practical difficulty and expense of the two children spending time with the Respondent in the event of the Applicant being able to relocate with them to live in Brisbane. Communication as such will not be a relevant consideration given the availability of telephone, email and other remote related technology.

The capacity of the parties and any other person to provide for the needs of the two children including emotional and intellectual needs

There is no issue that each of the parties has the capacity to provide for the physical and intellectual needs of the two children. Each of them also has the capacity to provide for the emotional needs of the two children, subject to the effect upon them which the parental conflict between the parties has had and may well continue into the foreseeable future.
Each of the parties alleges that the other has been abusive and/or provocative in the communications between them as well as in their actions.
The affidavit of the Applicant provides evidence of alleged harassment of her by the Respondent.[10] A summary of those allegations are set out in the following paragraphs.
[10] Supra paragraph 21.
On 10 December 2008, the Applicant, the maternal grandmother and the two children attended a Christmas party organised and held at the children’s day care centre. The Respondent arrived and remained for the function. The Applicant left shortly after as she felt uncomfortable at the presence of the Respondent who had arrived without any prior notice or discussion with her. The Applicant did not regard the function as an “important” event in the lives of the two children and the Applicant and Respondent had a strained discussion on the morning of that day in relation to C’s schooling. As a result of that discussion the Applicant felt stressed and seeing the Respondent that evening at the function only increased that stress.
On 24 December 2008, the parties met by agreement at Sydney Airport so that the Applicant could collect the two children from him, preparatory to them travelling with the Applicant to Brisbane. That was the first occasion of direct child changeover that had occurred between the parties since the Applicant’s hospitalisation in January 2008. The Applicant suffered considerable distress as the Respondent was accompanied by Ms D which was not in accordance with the prior practice between the parties on occasions such as handover of the children. Matters were exacerbated so far as the Applicant was concerned, as the Respondent then followed her and the two children requesting that the Applicant arrange for the two children to call the paternal grandparents and upon the Applicant not immediately responding, the Respondent swore at her in front of the children. The Respondent subsequently sent a text message to the maternal grandparents criticising the Applicant and requesting that the maternal grandmother ensure that the two children call their paternal grandparents. Later that evening the Applicant received a further text from the Respondent which provided critical comments about the Applicant.
Between the hours of 6.45am and 10.30am the Respondent left a number of voicemail and other messages on the telephones of the Applicant and maternal grandmother ranging from requesting that the two children call him to abusive descriptions of the Applicant. Upon the Applicant being informed by the maternal grandmother of those messages the Applicant called the Respondent explaining that messages had only been recently heard and he replied in an aggressive manner, swearing at her. Subsequent communication between the parties continued in the same vein after the two children had left a message for the Respondent on his voicemail. C became distressed.
Communication between the parties during the holidays spent by the Applicant and two children was marked by aggressive and abusive comments by the Respondent.
On C’s first day at primary school on 29 January 2009 the Respondent simply informed the Applicant that he would be present rather than inviting an opportunity for discussion beforehand. He refused to communicate further about the matter.
On 5 February 2009 the Respondent attended the Applicant’s home and did not merely leave clothing of the children which he had agreed to return having failed to do so previously, but rather called out to the children to come down just prior to them leaving for school. Subsequently, a letter dated 9 February 2009 was sent by the Respondent’s solicitor to the Applicant’s solicitor complaining of breach of orders regarding telephone communication between the two children and the Respondent which the Applicant considered, with some justification, was a threatening letter.[11]
[11] Affidavit of Applicant Supra Annexure “B”.
The affidavit of the Respondent also provides evidence of his allegations of poor communication between the parties marked by what he describes as “significant tension” and “little or no goodwill”.[12] Considerable affidavit evidence is provided by the Respondent in relation to those matters.[13]
[12] Affidavit sworn 12 February 2009.
[13] Ibid. Paragraphs 322-363.
The Respondent gives a number of instances of conflicted communication between the parties allegedly initiated by the Applicant in the presence or hearing of one or other of the two children. He provides a different version of events referred to by the Applicant in her affidavit. The Respondent annexes copies of a number of emails passing between the parties and also between him and the Applicant’s solicitor. The Respondent had retained a solicitor. Implicitly, the Respondent emailed the Applicant’s solicitor out of a sense of his claimed frustration or concern. Unfortunately, by taking that approach, it only added an extra and unnecessary layer to avenues of communication which potentially complicated matters further, rather than leaving it to the solicitors for the parties to communicate with each other.
The evidence in the proceedings also includes voluminous copies of text messages and email between the parties.[14] I do not propose to provide an audit of those copy text messages and email, but rather to refer to features of them. In that regard, I follow what I understand to be part of the basic elements of reasons for judgment in that provided references are made “to all relevant evidence (albeit not necessarily in detail)” that is all that is required.[15]
[14] Exhibits 9, 10, 11 and 12.
[15] “The trial judge’s duties from an appellate point of view” October 2004, Ipp JA.
Exhibit 9 contains abusive text messages from one party to the other intermingled with sensible comments. Exhibit 10 is abusive and provocative.
Exhibit 11 represents a written continuation of the parental conflict replete with criticism and fault finding and yet in part, reasonable comments are made. The positive effect of the latter in all likelihood was lost due to the former features.
Exhibit 12 is a folder containing copy email and text messages. They cover the period from the latter half of 2007 to 17 February 2009, nine days prior to the first day of the hearing. Exhibit 12 represents, in the main, the features of Exhibits 9, 10 and 11 to which earlier reference has been made.
Exhibit 6 contains copies of entries made in the communication books used by the parties. In contrast to Exhibits 9, 10, 11 and 12, generally speaking Exhibit 6 has appropriate comments and information, punctuated at times with the parties need for point scoring against each other.
Each of the parties and in particular the Respondent was cross-examined in relation to the content of communication between them. When pressed, the Respondent conceded that certain of his communications had been “insensitive” to the Applicant and inappropriate due to his alleged frustration “in dealing” with her. However, he considered that on balance, he is “fair, reasonable and sensitive” in his communication with the Applicant in relation to the children. He agreed that Exhibit 6 which contains carbon copies of the Mother’s entries in the communication book did not include any derogatory comments about him with respect to matters affecting the two children.
It is common ground between the parties that they have had at times a conflicted parental relationship in relation to matters affecting the two children, especially during last year and up to the hearing this year. Each blames the other for that unfortunate state of affairs. I accept the tenor of the evidence of the Respondent that he has felt frustrated at times in making arrangements with and obtaining information from the Applicant in relation to the two children. I also accept the substance of the Applicant’s evidence that she has felt harassed and abused by the Respondent due to the language that he has used in his communication with her from time to time, the comments that he has made and the circumstances in which he has made them in the presence or hearing of one or both of the two children. I also find that interspersed in the evidence of communication between the parties have been sensible and thoughtful comments made for the ultimate benefit of the two children.
I further find that the substantial parental conflict between the parties in relation to matters affecting the two children has diminished the capacity with each of them otherwise has to provide for the emotional needs of the two children. Each of the parties at times has been more focused on the ascendancy of viewpoints that each was seeking to impress, rather than being sensitive to the tension and stress that their ongoing conflict has inevitably created for the two children.
There is no issue that members of the extended family of each of the parties, as well as Ms D, has the capacity to provide for the emotional needs of the two children including family support. So far as Ms D is concerned, that includes the continued benefits of her home being the place of residence of the Respondent and at which the children are cared for by him and Ms D.
The Applicant’s mental health is an issue in relation to her capacity to provide for the care of the two children and their emotional needs. It was not raised as an issue in relation to the other needs that the two children have.
The affidavit evidence of the Applicant is that she was “seriously affected and traumatised by the sudden and unexpected end to our marriage in August 2006 and initially sought and received psychological counselling and medical treatment and advice in an attempt to help me through this process.”[16]
[16] Affidavit sworn 12 February 2009 paragraph 14.
On 25 January 2008 the Applicant’s mental health reached such a serious low point that she attempted to take her own life and as a result was hospitalised. At the time the two children were with the Respondent.
Following the Applicant’s discharge from hospital on 27 January 2008 the Applicant was a voluntary patient at the S Clinic until her discharge on 21 February 2008. During that period, the Applicant received psychiatric treatment.
Following the Applicant’s discharge from the S Clinic and the diagnosis provided by her psychiatrist Dr N that she was suffering from adjustment disorder with depressed mood and extreme stress, the Applicant continued to take daily medication that had been prescribed and received a combination of clinical psychological therapy and psychiatric treatment. The Applicant continues to take prescribed medication on a daily basis.
The Applicant further deposed that, whilst she considers that she has recovered from the effect upon her of the separation between the parties, she continues to experience mental harassment due to the conflicted relationship between her and the Respondent which she attributes being due to the manner and at times the content of his communication with her, whether it be verbal or written.
The Applicant considers that continuing to live in Sydney with the two children “would be a great struggle for me and I am concerned that it would result in a regression in my mental state. Though it is hard to see myself going back to my lowest point I am concerned that I would find it difficult to cope without the constant support of my family while the children are so young.”[17]
[17] Supra para.10(b).
A report dated 5 November 2008 from Dr N to the Applicant’s general practitioner is Exhibit 13. Exhibit 13 expresses Dr N’s opinion that the Applicant’s improvement in her health is maintained and that she continues taking daily medication. He noted that the Applicant continued to consult her psychologist and “had been making reasonable progress in her recovery.”
The single child expert, Dr R, provided a comprehensive report dated 26 August 2008 annexed to her affidavit sworn on the same day which is Exhibit 2. In Exhibit 2, Dr R provided detailed assessments of the parties, the two children, Ms D and the maternal grandmother as well as a summary and recommendations.
In Exhibit 2, Dr R expressed the opinion that the Applicant “presented as a committed and competent parent who is very invested in her mothering.” Having referred to the mother’s difficulty in dealing with the Respondent in terms of co-parenting, Dr R opined that “despite her apparent premorbid good functioning, [the mother] does have a genuine need for good psychosocial supports.” Dr R proceeded to state that “ideally [the mother] should be supported by her parents in the care of her children but this must not come at the expense of the children’s needs. She is concerned about her mental health should she stay in Sydney, and rightly says any deterioration will influence her parenting”.
Dr R provided what she described as a “good” prognosis “in theory”. To illustrate that opinion, Dr R stated “she had good premorbid functioning, has had a first-time episode of depression in an understandable context, is compliant with medication and well-supported by her therapist, family and friends. Of concern is her seemingly unabated anger with her ex-husband and his new partner, which undermines her adjustment to her current circumstances. Not being able to parent the children as she wishes, she will continue to feel this anger. [The mother] needs significant financial and social support to continue to parent the children in Sydney. She will find it difficult to thrive without the children while they are in their father’s home but for her own sake and their sake, needs to learn to cope at these times.”
Dr R was cross-examined. In the course of cross-examination, Dr R’s attention was drawn to Exhibit 13. Her interpretation of it and clinical notes produced by another medical practitioner was that based on that material, the Applicant’s mental state had improved. With regard to the mother continuing to take prescribed medication, Dr R expressed the view that it was common practice that a person such as the Applicant who had a serious illness and was anticipating a stressful situation such as court proceedings, that she would maintained on the medication dose that was needed for her recovery. As to whether it was “a high dose”, Dr R’s opinion was “you can’t really read anything into that, because people have individual sensitivities to the medication.” Dr R’s opinion was that a patient should be maintained on the dose to which they have responded for approximately a year or longer and be taken off the medication “when there was no anticipated stressful situations facing them.” In that regard, a person should be weened off antidepressants rather than immediately ceasing to take the prescribed medication. Dr R was of the view that for the reasons that she expressed, the Applicant’s recent enjoyment when the children were in the care of the Respondent was “a positive sign”. Otherwise, Dr R maintained the assessment of the Applicant given in Exhibit 2.
I accept Exhibit 2 and the oral evidence of Dr R in relation to the mental health of the Applicant and find that the mother is making good progress in the context of ongoing consultation with her psychologist and continuation of her medication. Having regard to that finding and the continued care of the two children by the Applicant without supervision and the progress that the two children have made in her care which does not reflect any deficit in such care, I find that the Applicant has the capacity to provide for the emotional needs of the two children. That capacity will continue to be exercised with ongoing family and psychological support which have been and are likely to be continued to be provided to the Applicant.

The maturity, sex, lifestyle and background (including culture and traditions) of the two children and of the parties with other relevant characteristics

The only relevant matters are that the two children have the maturity commensurate with their ages and development.

The parental attitude of the parties

The parties love and are devoted to the two children. They have an appropriate parental attitude except for the substantial parental conflict that has existed between them and the consequential stress and tension created for the two children which has been to their detriment.

Family violence and any family violence orders

Fortunately for the two children and the parties, this particular matter is not relevant. The issue of abusive communication between the parties, especially from the Respondent and the effect of it upon the Applicant, is the subject of my earlier findings. This type of abuse is not “abuse” as defined in the Act or in relation to family violence.

The preference for an order least likely to lead to an institution of further proceedings in relation to the two children, or either of them

Orders which may be made for equal or sole parental responsibility, or as a consequence of the success or otherwise of the Application of the Applicant to relocate with the two children to live in Brisbane, each have the potential for further disputes between the parties. The evidence in that regard does not lead me to be satisfied that one or other of such potential orders is least likely to lead to an institution of further proceedings.
Indeed, no submissions were made in that regard.

The extent to which each of the parties has fulfilled or failed to fulfil parental responsibilities by each of the parties in relation to major long-term issues, spending time and communicating with the two children.

These matters do not arise for consideration, other than a difference of views at one stage regarding education for C.

Other relevant facts or circumstances

Depending upon the orders for property settlement, the place and features of other accommodation for the Applicant and the two children in Sydney are not capable of precise forecast.

Conclusion

The proposals of the Applicant are that she be granted sole parental responsibility for the two children and other parenting orders be made which enable her to relocate with the two children to live permanently in Brisbane and, that other parenting orders be made to provide for the Respondent to spend time and communicate with the two children.[18]
[18] Exhibit 3.
The Respondent for his part proposes that the presumption of equal shared parental responsibility for the two children not be disturbed. In addition, he seeks orders that the Applicant live with the two children in Sydney and that the Applicant be restrained from altering the residence of the two children from the Sydney metropolitan area without his written consent or order.[19]
[19] Exhibit 4.
The orders sought by the Independent Children’s Lawyer were submitted following the conclusion of the evidence and the minute of order in that regard is Exhibit 15. The substantive orders sought in Exhibit 15 are that an order be made reflecting the presumption of equal shared parental responsibility in favour of the parties and that further parenting orders be made which, in substance, are similar to if not the same as those sought by the Respondent.
Extensive and cogent written submissions were lodged by counsel on behalf of the parties and by the Independent Children’s Lawyer. Those submissions have been considered by me.

It was submitted on behalf of the Applicant that the presumption of equal shared parental responsibility has been rebutted on the ground contained in s 61DA(4), namely, “that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” In the context of these proceedings the ground relied on is in relation to the two children. In that regard, it was submitted that the best interests of the two children is safeguarded by such an order being made “due to the toxic relationship between the parents whether or not the mother is permitted to relocate the residence of the children to Queensland.”[20]
[20] Counsel’s written submissions, 23 March 2009, paragraph 20.
In support of the principal submission made by counsel on behalf of the Applicant, references were made to particular evidence to demonstrate that the Respondent has shown himself to be often incapable of communicating with the Applicant other than by being offensive and critical and that in addition, Ms D is critical of the Applicant. Counsel provided a detailed review of affidavit evidence, the exhibits of communications to which I have earlier referred and oral evidence.
On behalf of the Respondent it was in effect submitted that it was not in the best interests of the two children that sole parental responsibility “should be awarded to one of the parents.”[21] In effect it was submitted that the Respondent had been substantially involved in the care of the two children both prior and subsequent to separation, that inappropriate communication between the parties could be sourced at times from the Applicant to the Respondent and that the Applicant had shown herself to be “ambivalent” about the Respondent’s role as a father. Consequently, it was implicit in the submissions that such a parental attitude by the Applicant was likely to be one which would not give the Respondent full recognition in a real sense of parental responsibility in the event that sole parental responsibility was granted to the Applicant. As a result, that would not be in the best interests of the two children.
[21] Written submission, 16 April 2009, paragraph 37.
The Independent Children’s Lawyer submits that the presumption of equal shared parental responsibility has not been rebutted. Consequently, the order sought by the Applicant is opposed.
The essence of the written submissions made by the Independent Children’s Lawyer is that such difficulties as there have been between the parties in relation to certain major long-term issues have had an underlying thread of difficult communication between the parties which were of short duration and ultimately resolved between them.
I have concluded that the presumption of equal shared parental responsibility has not been rebutted on the ground relied upon by the Applicant for the following reasons.
Both prior and subsequent to the separation of the parties, each of them had a loving relationship with and involvement in all aspects of the care and upbringing of the two children, to the extent to which they were able to do so, having regard to employment commitments and the different parenting roles that each of them has carried out. They have demonstrated that they are loving and dedicated parents, whose parental conflict has been in the nature and extent of communication between them, especially the unacceptable communications at times by the Respondent to the Applicant. Nonetheless, the substantial issues of the care of the two children have been promoted by each of the parties for the benefit of the two children.
I accept the written submissions on behalf of the Independent Children’s Lawyer that the areas of parental responsibility to which he referred, which are otherwise a reflection of the major long-term issues defined in the Act,[22] have not been attended to in substance other than in the best interests of the two children, notwithstanding some relatively short periods of disagreement. Each of the parties has met their responsibilities for the direct and indirect financial support of the two children to the extent that was reasonable for them to do so in their individual circumstances.
[22] s.4(1).
As I have previously found, not all of the voluminous copy email and text messages between the parties has been abusive or negative. Indeed, at times they have shown a reasonable and sensible approach by one party or the other. There is no avoiding the facts so far as I am concerned that each will need to make a more sensitive and considerate approach to communication in the future, particularly the Respondent. I will make an order for each to take part in and complete an appropriate professional program to promote positive parenting and communication between them, as recommended by the Manager Child Dispute Services in the Sydney registry or her nominee.
A significant feature of the Applicant’s case, in relation to the parenting orders that she seeks, is that part of her Application for an order which will permit her to relocate with the two children to live permanently in Brisbane. As has been made clear by the High Court and subsequently followed by the Full Court, such a matter that arises for consideration in parenting proceedings does not convert such proceedings into what is commonly called a “relocation case”, but rather is one of a number of matters required to be considered for the purposes of making parenting orders in accordance with s 60CA, whereby the best interests of the two children is the paramount consideration.[23] That is the approach that I will follow in these proceedings.
[23] AMS v AIF (1999) FLC 92-852 at 86,032-86,033 and 86,054; U v U (2002) FLC 93-112 at 89,089 – 89,091; Taylor & Barker (2007) FLC 93-345 at 81,912.
The proposal of the Applicant is that the two children live with her, preferably in Brisbane, or otherwise and on a secondary alternative basis, in Sydney.
The orders sought by the Respondent and the Independent Children’s Lawyer provide for the two children to remain living in Sydney and that they live with the Respondent on a two-weekly cycle from Friday after school until Tuesday before school in week one and from Monday after school and Wednesday before school in week two, suspended during school holiday periods. So far as the latter is concerned, the Respondent seeks an order that the two children live with him for half of each school holiday period as well as on certain other specified occasions.[24]
[24] Exhibit 4.
The Independent Children’s Lawyer has sought orders that the two children live with the Respondent for half of all school holiday periods excluding the Christmas school holidays. So far as the latter is concerned, the orders sought are that the two children live with the parties for alternate weeks, changing to half of the relevant holiday period commencing during the Christmas school holidays 2011-2012. Orders are also sought for specified occasions.[25]
[25] Exhibit 15.
The Applicant sought orders that on the basis of the two children living with her in Brisbane, the Respondent spend time with them for four days per month in Sydney and for three or four days each month at the election of the Respondent in Brisbane. In addition, the Applicant sought orders that the Respondent may have periods of time with the two children in his care for four days in Sydney in each school holiday period, except for the Christmas holidays when the relevant periods be two blocks of four days.[26]
[26] Exhibit 3.
The Applicant also sought parenting orders in the alternative to those just summarised on the basis of the two children living with her in Sydney. Should such an order be made then the Applicant sought orders that the Respondent spend time with the two children in a two weekly cycle, from the conclusion of school or preschool on alternate Monday evenings to the commencement of school or preschool on Wednesday mornings in week one and from 9am on alternate Saturday mornings to 6.00pm on Sunday evenings at the end of that week. In addition, the Applicant sought orders for further periods of time that the two children spend in the care of the Respondent, being four days in each school term holiday other than the Christmas school holiday period when the relevant periods be two blocks of four days.
I have determined that it is in the best interests of the two children that they continue to live with the Applicant in Sydney, rather than living with her in Brisbane. My reasons are as follows, bearing in mind that I am not bound by the proposals of either party.[27]
[27] U v U supra.
The case for each of the parties is a cogent one with potentially substantial benefits for the two children.
So far as the Applicant is concerned, she has given detailed evidence of all aspects of the daily care that she will provide for the two children, should they live with her, regardless of whether it be Brisbane of Sydney but in particular, the circumstances in which that care will be enhanced should the Applicant be able to live with them permanently in Brisbane. I have previously summarised her evidence and that provided by the maternal grandmother who has been an important close relative of the two children, not merely by being a grandparent, but because of the dedicated care that she provided following the mother’s health issues in early 2008 and the supervision of her care provided by the maternal grandmother for a considerable period thereafter. In addition, the maternal grandmother proposed that she continue to provide close support for the Applicant should she be able to live in Brisbane with the two children, supplemented by support provided by other members of the family. I have accepted her evidence and made findings in accordance with it. Pursuant to those findings and other relevant findings earlier made in this judgment, I accept the Applicant’s proposition that her general wellbeing and the lifestyle that she will be able to lead in Brisbane as explained by her are likely to be enhanced with the consequential benefit for the two children.
The case for the Respondent also has substantial elements which are positive in terms of the best interests of the two children.
The Respondent, as with the Applicant, has a loving relationship with the two children. He is a dedicated parent and sometimes the two children have had substantial periods in his care, mainly for each alternate weekend as well as on Monday afternoon until Wednesday morning in each alternate week. They have been well cared for by him, assisted by Ms D. The two children have a fond relationship with Ms D and her daughter O.
I agree with the submission made on behalf of the Applicant that the case is “a finely balanced one.”[28] An important further finding to attract weight is in relation to the parental conflict that has existed between the parties for some time, marked by abusive and/or argumentative email and/or text messages to which I have previously referred. Whilst there has been abuse directed by the Applicant to the Respondent in certain of those communications, the Respondent has been responsible for a greater proportion of such communications which are marked by abusive or arrogant content which is likely to have been very upsetting for the Applicant, given the serious health issues to which she has had to contend, of which the Respondent was well aware. Such type of communications by him did not do him any credit. It is readily understandable that the Applicant would seek to remove herself from the same city in which the Respondent lives to lessen the contact that she would have with him from her perspective and the daily support that she will have should she live with the two children in Brisbane. Obviously, that would not necessarily avoid or limit email or text messages. However, it would place her in a position where she may be able to cope with that communication in a better way than has been the case in the past with the support that she will have from family members in Brisbane.
[28] Supra, page 1.
However, these proceedings are not a contest between the Applicant and the Respondent in which one will receive a penalty for inexcusable behaviour. As I have emphasised in this judgment, s 60CA makes it mandatory that the paramount consideration for the purpose of making a parenting order is the best interests of the two children. Whilst my findings in relation to communication between the parties and the attitude which each displayed is relevant because of the parental conflict that it represents which obviously is not in the best interests of the two children, nonetheless I am required by the legislation to consider the primary consideration in these proceedings, namely “the benefit” to the two children “of a meaningful relationship” with the parties.
I agree with the interpretation given in another judgment that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one.”[29]
[29] Mazorski & Albright [2007] FamCA 520 at [26].
As s 60CC(2)(a) makes clear, it is not enough to simply focus on “a meaningful relationship with both of the child’s parents” but there is the requirement to link it to “the benefit to the child” (in this case the two children) of such a relationship.
I am satisfied on the balance of probabilities that the two children will have such a relationship with each of the parties should they live with the Applicant, but that they are more likely to have the “benefit” of such a relationship by living with the Applicant in Sydney.
The determinative evidence which has led me to that conclusion after giving weight to all of the other relevant considerations to which I have referred, and the persuasive written submissions that counsel for the parties and the Independent Children’s Lawyer have made, is the evidence of the independent child expert, Dr R. As is apparent, I have accept her evidence and made findings accordingly. Particular features of that evidence to which I have given significant weight as representing determinative factors in the ultimate conclusion that I have reached concerning the two children living with the Applicant in Sydney rather than Brisbane, are the availability to the two children of both parents by them living in Sydney, the avoidance of the anxiety in that regard which Dr R described, the limited reassurance that telephonic communication and webcam can give, especially to young children and the importance to them of being able to have “a tactile physical relationship” with the parties on a frequent basis. In addition, there are all the benefits of involvement by both children in the parties’ activities and the time that may be spent with them by each party as they get older being an important process of learning for the two children. Those matters to which I have referred by way of a brief summary in this paragraph represent important parenting benefits for the two children both in the short and long-term. In addition, I have accepted the evidence of the maternal grandmother in relation to ongoing and regular support which she and other family members will provide to the Applicant and the two children in Sydney, as well as the evidence of the Applicant and Dr R of significant improvement of the Applicant’s health.
Section 65DAA(1) makes provision, in essence, that if a parenting orders is to provide for equal shared parental responsibility for a child, then it is mandatory to consider whether spending equal time with each of the parties would be in the best interests of the child and is reasonably practical to do so. Should the result of such consideration be in the affirmative, then that section of the Act requires the Court to consider making an order for equal time that the child will spend with each of the parties.
However, in the event that the last mentioned order is not to be made, then s 65DAA(2) requires the Court to consider whether it is in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents and if so to consider making such an order.
“Substantial and significant time” is regarded as being time that includes days that fall on weekends and holidays, as well as days that do not fall on those periods and that the relevant time to be spent with a parent allows that parent to be involved with the child’s daily routine and occasions and events of particular significance to the child as well as involvement by the child of events of special significance to the parent.[30]
[30] Section 65DAA(3).
The Act further provides that the matters to which I have referred do not provide a limitation on other matters to which a Court can have regard. “Reasonable practicality” is also defined. That phrase includes the distance between the incidences of each of the parents; their current and future capacity to implement arrangements for the child to spend the periods of time to which I have referred, the parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in the implementation of such arrangements; the impact that such an arrangement would have on the child and other matters that are considered to be relevant.
The written submissions on behalf of the parties and the Independent Children’s Lawyer do not provide focus upon the matters referred to in paragraphs 154 to 157 hereof. No doubt a reason may be that the issue of “relocation” dominated the conduct of the proceedings. Nonetheless, the provisions of the Act to which I have referred require me to consider those matters.
It is clear that the orders sought by the Respondent and the Independent Children’s Lawyer reflect periods of time that the two children should live with the Respondent as approximating equal time or at least substantial or significant time.
I have concluded that it is in the best interests of the two children that orders be made which provide for the Respondent to have periods of time and communication with them in accordance with the pattern that has occurred for the past two and a half years, referred to in paragraph 60, for the following reasons.
The two children are still very young, particularly L. The parties have been in a conflicted parental relationship for a large part of that time, exacerbated by the proceedings between them in this Court. Difficulties between the parties in relation to matters affecting the two children have been complicated by the Applicant’s health issues (through no fault of hers) and the poor level of communication that has existed between the parties, as evidenced by their email and text messages elevated to an unattractive level largely by the Respondent. There is no evidence to suggest that the two children have otherwise than benefited from the stability and routine of the existing periods of time that they have spent in the care of the Respondent for a considerable period.
I consider it to be important for the ongoing best interests of the two children that such stability and routine be maintained for the foreseeable future, subject to orders that make provision for periods of time that they spend in the care of the Respondent during school holidays. An important factor to which I have attached weight is the disturbing features of the current and future capacity of the parties to communicate with each other and resolve difficulties that might arise in the implementation of arrangements. The potential for further difficulties and unhelpful communication may be increased should the two children live with the Respondent for greater periods of time given the content of communications he has indulged in earlier described. The Applicant may well be anxious or stressed in that situation. However, the parties are intelligent, well educated and articulate parents, who with the assistance of the course to which I have earlier referred and the end of the litigation may be able to renew their efforts to have a parental relationship with less conflict and more focus upon cooperative parenting. In the meantime, the former matrimonial home is likely to be sold with the Applicant’s need to find suitable alternative accommodation for herself and the two children. That will represent potentially further unsettling aspects to the lives of the two children.

I will make orders for the two children to be able to spend periods of time in the care of the Respondent during school holiday periods as sought by the Applicant for the holiday periods this year and 2010. Thereafter, they will have the benefit of more extended time with the Respondent in school holidays as sought by the Independent Children’s Lawyer. In the absence of submissions dealing with those issues, I have inferred that the two children and especially L, who is only 3 years of age, will need time to adjust to spending increasingly longer periods of time in school holidays with the Respondent given that such periods, without the care of the Applicant will be a new experience for him. I will make an order which enables the Applicant to have a telephone conversation with each of the two children on a regular basis during such periods. That should provide some reassurance for them.
It should be obvious to the parties that as the two children’s ages increase, with changes in their interests, activities and reasonable needs, that flexibility and sensitivity to accommodate those changes will be needed by the parties adopting a child focused approach, rather than negotiating changes based on calculating the number of days or nights that the two children or either of them spend with one parent or the other. The young ages of the children mean that many years lie ahead for them to be placed in a position where they should be able to enjoy the support of the parties with the appropriate flexibility to accommodate the two children free of the parental tension that has existed far too long. Time will tell whether the parties are indeed capable of being child focused in a constructive way. I will make an order which will accommodate arrangements that the parties may make for alternative or substituted periods of time to meet the reasonable requirements of the two children.
Ancillary orders will also be made to ensure communication between the parties in relation to matters such as the health of the two children and school information such as reports. A non-denigration order will also be made given the nature and extent of communication between the parties from time to time to which I have referred.

The property settlement proceedings

Relevant legal principles pursuant to section 79 of the Family Law Act (“the Act”)

It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable”, represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s.75(2).
Fourthly, consideration of orders, if any, that should be made that are just and equitable.[31]
[31] Hickey & Anor and Attorney-General for the Commonwealth [2003] FamCA 395, pp 14-15.
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s.75(2) of the Act.

The property of the parties

Exhibit 7 reproduced as follows is the “agreed joint balance sheet” setting out all of the property and liabilities of the parties including the value of superannuation entitlements. No items of controversy arise.
“Asset  Value  Source
1. [B property]  1,900,000                Agreed
2. [V Company] shares: […]       165,000  Agreed
3. NAB shares – […] H  15,364  Agreed
4. Westpac shares […]  31,246  Agreed
5. Managed funds W  11,656  Agreed
6. Husband’s 2002 […] motor vehicle  13,800  Agreed
7. Husband’s CBA account  4,608  Agreed
8. Wife’s savings  1,112  Agreed
9. [G] Consultants Pty Ltd (joint)                  352,959                    Agreed*
10. Contents and artwork (mat home)           32,500  Agreed
11. Wine  45,000  Agreed
12. Funds in trust H  15,400  Agreed
13. Funds in trust W  0  Agreed
14. Legal fees paid H  73,271  Agreed
15. Legal fees paid W  87,677            Agreed
Non-Superannuation asset total                2,749,593
16. Husband’s MLC superannuation               57,419  Agreed
17. Husband’s BT superannuation                   67,886  Agreed
18. Wife’s AMP superannuation                   51,590  Agreed
19. Wife’s [P] superannuation  53,383            Agreed
Total all assets including superannuation 2,979,871
Liabilities:
20. Home mortgage  1,166,660                Agreed
21. [V Company] share loan  99,500  Agreed
22.Husband’s loan from parents for legal fees         85,000  Agreed
23. Husband’s alleged loan for car from parents20,000  Agreed
24. [G Consultants] debt  92,364  Agreed*
25. CBA Visa H  9,492  Agreed
26. CBA visa W  5,730  Agreed
27. American Express – Wife  15,059  Agreed
28. Wife’s loan from mother for legal fees    7,200  Agreed
Total liabilities            1,501,005
* Value includes wife’s borrowings for legal fees and medical expenses”
Accordingly, the net property (including the value of superannuation) is $1,478,866.00.

Contributions of the Parties

There was little if any challenge to the affidavit evidence of the parties in relation to the financial and non-financial contributions, including contribution in the role of homemaker and parent that each contended had been made by her or him respectively. The following are my findings in relation to such contributions.

The Applicant

The Applicant made the following initial financial contributions:-
i)Furniture and household contents.
ii)Motor vehicle having a value of approximately $3,500.
iii)Shares having a value of approximately $10,000.
iv)Superannuation entitlements having a value of approximately $7,000.
v)Savings, the amount being unspecified.
During the period of cohabitation, the Applicant made direct and indirect financial contributions as well as contribution to the welfare of the family in the role of homemaker and parent.
The Applicant applied her savings towards payment of the deposit of the purchase of the E property.
The Applicant was employed on a full-time basis from the commencement of cohabitation until shortly prior to the birth of C and from August 2004 in part-time employment with a gradual increasing of working hours subject to cessation of employment shortly prior to and after the birth of L. The Applicant applied her income towards meeting living expenses and liabilities of the parties.
The Applicant joined in the purchase and sale of the E property and the subsequent purchase of the former matrimonial home with the attendant mortgage commitments.
The Applicant made a contribution in the role of homemaker and parent, both prior and subsequent to separation of the parties, including the daily care and upbringing of the two children and a range of domestic work. The Applicant supervised house renovations and interior decoration.
Subsequent to the separation of the parties the Applicant has continued to be engaged in part-time employment representing at the hearing approximately 25 to 30 hours per week and has applied her income towards meeting living expenses.
The Applicant has continued to make the homemaker and parent contributions to which previous reference has been made.

The Respondent

The Respondent made the following initial financial contributions:-
i)Shares in NAB Limited.
ii)Shares in Westpac Corporation Limited.
iii)Shares in Qantas Limited.
iv)Shares in QNI Limited.
v)Shares in Boral limited.
vi)Bank savings of approximately $7,500.
vii)Superannuation.
viii)Approximately 10 dozen bottles of wine.
ix)Pushbike and minimal furniture.
Leave had been granted to enable the Respondent to give oral evidence which may have supported an ultimate finding as to the value of the various shares held by him. No such evidence was given nor any documents tendered in relation to that matter.
The Respondent was employed on a full-time basis throughout the period of cohabitation, principally in a variety of senior positions. He has applied his income towards meeting living expenses and liabilities of the parties and the two children.
The Respondent made financial contributions as a result of receiving redundancy payments of $30,000 in 1999; $10,000 in 2001; and $80,000 in 2002. I infer that those amounts were applied by him for the same purpose as the use of his income which previous reference has been made absent evidence and submissions to the contrary.
In 1997 and 1998 the Respondent received from his parents two gifts of $20,000 and $7,500 respectively.
In October 2004, the Husband’s parents advanced to him on the evidence of the Respondent, implicitly for the benefit of both of the parties, the sum of $113,334. That amount was applied in partial discharge of the mortgage and in satisfaction of outstanding credit card indebtedness.
The Respondent joined in with the Applicant in the purchase and sale of the E property and subsequent purchase of the former matrimonial home.
The Respondent made a contribution to the renovations and maintenance of the real estate purchased by the parties.
During the period of cohabitation, the Respondent made a contribution in the role of homemaker and parent by carrying out a variety of domestic work and assisting the Applicant in the care and upbringing of the two children.
Subsequent to the separation of the parties, the Respondent has continued his financial contributions by payment of mortgage instalments in relation to the former matrimonial home, monthly deposits into savings accounts and made other financial commitments for the benefit of the two children.
The Respondent has also continued to make a contribution in the role of homemaker and parent and due to the regular periods of time that the two children have been in his care.

Assessment of Contributions

I find that each of the parties made financial and non-financial contributions, including contribution to the welfare of the family in the role of homemaker and parent to the extent of their capacity to do so having regard to the roles that each fulfilled during cohabitation and since.
I have assessed the contributions of the parties in the proportions of 60% in favour of the Respondent and 40% in favour of the Applicant, due to the weight that I have given to the Respondent’s financial contributions represented by the funds gifted to him by his parents in 1997 and 1998 and in particular shortly prior to the separation of the parties a very significant amount of money, namely $113,334.00. The use to which those amounts were put was for the benefit of the parties and indirectly, the two children.
That assessment of contributions on a proportional basis is consistent with the written submissions made by counsel for each of the parties.
I also assess that each of the parties made contributions to their respective superannuation entitlements on the same basis. The written submissions by counsel for each of the parties did not suggest that superannuation be considered separately from the other property of the parties. I have followed their approach which I consider to be appropriate in all the circumstances.

Relevant Matters pursuant to section 75(2)

I make the following findings in relation to relevant matters pursuant to the provisions of s.75(2).
The Applicant and Respondent are 37 and 38 years of age respectively.
The Applicant has health issues which have improved in recent times. I refer to the findings previously set out.
The Respondent has good health.
The evidence of the Applicant’s income and financial resources are set-forth in her Financial Statement sworn 25 February 2009.
I find that the Applicant’s estimated gross weekly income is $3,758 comprised in part of her income as a consultant $2,250 per week. The Applicant also receives child support totalling $275 per week and the benefit together with the two children of the Respondent’s mortgage payments of $1,233 per week. The Applicant pays income tax of $668 per week leaving a net income from her income earning endeavours of $1,582 per week. The company meets her expenses including car expenses, home office expenses and superannuation contributions in the estimated amounts of $200, $120 and $203 respectively. The Applicant’s property is as described in paragraph 172. Her financial resources are limited to company financial benefits to which I have referred.
The Applicant has the physical and mental capacity for gainful employment in her current occupations of consultant engaged in her current hours of part-time employment constrained by the need to provide parental care for the two children.
The income of the Respondent is set forth in his Financial Statement sworn 12 February 2009. His average weekly gross income is $5,366. That comprises his salary of $4,862 gross; dividends and interest $67. His superannuation benefits amount to $437 per week. The Respondent’s income tax is $1,818 per week leaving him with a net income of salary, dividends and interest of $3,111 per week.
The Respondent’s property is as described in paragraph 172.
The Respondent’s financial resources include the indirect financial benefits of residing in the home of Ms D, subject to his weekly contribution to expenses of $700, the indirect benefit of the income earned by her being an average of $5,467 per week gross and the history of financial assistance provided from time to time by his parents, there being a lack of evidence to suggest that such discretionary financial assistance may no longer be forthcoming regardless of the Respondent’s financial circumstances.
The Respondent has the physical and mental capacity to continue in his current employment as a company executive for V Company. I accept his evidence that he has had substantial experience in the corporate area as group accounting manager and group financial controller as well as in planning and analysis. He is an experienced company executive.
The Applicant will continue to be the primary carer of the two children of the marriage who are aged 5 and 3 years respectively.
Each of the parties has commitments necessary to enable him or her to support himself or herself and the two children as set forth in their respective financial statements and otherwise described in their primary affidavits.
Each of the parties has superannuation entitlements previously described.
I take into account that each of the parties has a standard of living reasonable in all the circumstances whereby they continue to live in suitable accommodation in the metropolitan area of Sydney.
The Respondent cohabits with Ms D. The financial circumstances relating to that cohabitation are that the Respondent makes a financial contribution of $700 per week, having regard to the location and description of her house in which they both reside. The fixed outgoings in relation to that house I infer are met by Ms D as the sole registered proprietor. There is sufficient evidence to infer that as a consequence of cohabitation they share living expenses.
The Respondent provides child support as previously described. He will be liable to continue to provide child support as agreed between the parties or otherwise as assessed.
It is no longer a matter of controversy that the parties will join in the sale of the former matrimonial home. That will improve the financial circumstances of the Respondent in that he will no longer be required to meet the mortgage instalments and any other outgoings in relation to the former matrimonial home.

Assessment of relevant matters pursuant to s 75(2)

I have concluded that an adjustment of 15% will be made in favour of the Applicant to the proportion of the net property of the parties that she will receive, taking into account also the value of the superannuation entitlements of the parties for the following reasons. No distinction was drawn in counsel’s written submission so far as superannuation is concerned.
The Respondent’s income well exceeds that of the Applicant. He holds a secure senior position and has the capacity to continue to earn income in that position as well as the other senior roles to which I have earlier referred.
By contrast, the Applicant’s capacity to earn income reflects her current employment and consultancy which on the evidence before me does not have the potential to achieve proportionally greater income, especially having regard to her ongoing commitment as the primary carer of two young children. That commitment is likely to continue for the foreseeable future.
The Respondent’s financial position will be significantly improved following the sale of the former matrimonial home as he will not longer have the commitment to meet mortgage instalments and other outgoings which he has met to date.
In addition, the Respondent has a valuable financial resource due to the benefits that he is able to enjoy by living in a well-situated large and valuable residential property owned by Ms D, as well as the indirect benefit of the contribution that she can make to their overall lifestyle due to the income that she earns. I take those matters into account, notwithstanding that I accept the submission made on behalf of the Respondent that he does not have a legal or equitable interest in the residential property owned by his partner.
I also give weight to the reasonable need of the Applicant to secure suitable accommodation for herself and the two children, hopefully in or near the general area in which the former matrimonial home is situated. I do not have evidence of the cost of suitable alternative accommodation in that regard. The Respondent is placed in a better position as he currently has secure and well-appointed accommodation for himself and the two children during such periods that they are in his care.

Conclusion

I have concluded that the Applicant should receive 55% of the net property of the parties representing a combination of her contribution-based entitlement of 40% and the adjustment in her favour of a further 15% having regard to relevant matters pursuant to the provisions of s.75(2). I have given weight to the respondent’s contribution of $113,334, rather than his claimed “moral” objection to repay it. No demand has been made for repayment.
The net property of the parties excluding the value of superannuation entitlements is $1,248,588.00. Accordingly, 55% represents $686,723.40.
The combined value of the parties’ superannuation entitlements is $230,278. The wife’s proportion being 55% amounts to $126,653. The value of the wife’s superannuation entitlement of $104,973 must be deducted from the last-mentioned amount, leaving a balance of $21,680 to be paid to her.
For the purpose of considering whether orders for property settlement reflecting 55% of the net property of the parties, excluding superannuation and the same percentage in relation to the total value of the parties’ superannuation interests are indeed just and equitable, I have considered the practical effect of orders being made on that basis consistent with past Full Court judgments.[32] In applying that approach the practical effect so far as the Applicant is concerned is as follows:-
[32] Preece and Preece (1981) FLC 91-048 at 76,404; Elsey and Elsey (1997) FLC 92-727 at 83,799.
Assets
·Managed funds  $11,656.00
·Savings  $1,112.00
·Contents and artwork  $32,500.00
·Legal fees paid  $86,677.00
·G Consultants P/L  $352,959.00
$484,904.00
Liabilities
·CBA Visa  $5,730.00
·America Express  $15,059.00
·Loan from mother  $7,200.00
·G Consultants debt  $92,364.00
$120,353.00
To retain net balance  $364,551.00
Pursuant to the proposed orders, the Applicant is entitled to have net property amounting to $686,723 excluding an adjustment in her favour in terms of superannuation. Consequently the Applicant is entitled to receive a lump sum of $322,172 ($686,723 – $364,551) plus the adjustment in her favour of an amount reflecting 55% of the total value of superannuation of the parties, namely a balance of $21,680. That results in the Applicant being entitled to receive a final amount of $343,852.

However, the only source from which $343,852.00 can be paid to the Applicant is from the net proceeds of sale of the former matrimonial home. The parties final position was that they will join in the sale of that property. I will award the Applicant a percentage of the net proceeds of sale to take into account movements in the marketplace, whether up or down, as not to do so may produce an unjust practical result for each of the parties.[33] The applicant will accordingly receive 47% of the net proceeds of sale ($1,900,000 – $1,106,660) being $733,340. 47% represents the amount of $343,852.
[33] Smith and Smith (1991) FLC 92-261.
The Respondent for his part will receive an amount equal to 53% of the net proceeds of sale of the former matrimonial home as well as items of personalty. There was no issue having regard to the written submissions that the Applicant should have transferred to her the Respondent’s interest in G Consultants Pty Limited.
Having considered the practical effects of the proposed orders and taking into account the conclusions reached with regard to contribution-based entitlement of the parties and adjustments in favour of the Applicant due to relevant s 75(2) matters, I am satisfied that the orders which I will make are just and equitable as required by s 79(2).

I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:

Date: 6 August 2009

[2009] FamCA 711

6 August 2009

Key Legal Topics

Areas of Law

Family Law