JACOBS & SHAEFFER

FAMILY COURT OF AUSTRALIA

JACOBS & SHAEFFER

[2009] FamCA 920

FAMILY LAW – CHILDREN – PARENTING ORDERS – allegations of family violence against the father – where one child was living with the mother, one child with the father and the youngest living week about – capacity of father to emotionally care for the children – whether shared parental responsibility is appropriate – whether equal time is appropriate

FAMILY LAW – PROPERTY – application to set aside consent orders – miscarriage of justice by reasons of suppression of evidence, false evidence, fraud and/or duress –
appropriate division of property of parties in substitution for consent orders – whether mortgages purported to be entered into by the father were genuine – whether if the mortgages were genuine, there is a likelihood of enforcement

Evidence Act 1995 (Cth) ss 140(1), 140(2), 141(1)
Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(3), 61C(1), 61DA(1), 61DA(2), 61DA(4), 79A(1)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1)
Limitation Act 1969 (NSW) ss 42(1), 43(1)
Probate and Administration Act 1988 (NSW) s 42(1)
Supreme Court Rules 1970 (NSW) Part 78 Rule 11(1)

Af-Petersens & Af-Petersens (1981) FLC 91-095
B & B [1988] HCA 66
Briginshaw v Briginshaw [1938] 60 CLR 336
Gosper & Gosper (1987) FLC 91-818
Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144
M & M [1988] 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Ms Jacobs

RESPONDENT:

Mr Shaeffer

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

FILE NUMBER:

CAC

557

2007

DATE DELIVERED:

23 September 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

4, 5, 6 August 2008;
3 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nash

SOLICITOR FOR THE APPLICANT:

Mr Cameron

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Ms Power

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Heidi Stewart

Orders

In relation to the children it is ordered that:

All previous orders about the children are discharged.
There be no orders in relation to S and B, both born in May 1992.
The mother have sole parental responsibility for E, born in December 2000.
E live with her mother but spend time with her father as appears hereafter.
E spend time with her father as follows:
(a)On each alternative weekend from after school on Friday until she returns to school on the following Monday (except where the weekend was a long weekend in which case the time that E spends with her father will be extended accordingly, that is from after school on the last day before the long weekend until before school on the day on which school next resumes. (This is subject also to the question of special days as set out hereafter.)
(b)For half of the school holidays being the first half in years ending in an even number or zero and the second half in years ending in an odd number.
(c)If for any reason E’s father is unable or unwilling to take her for any period of school holidays as indicated by the last sub-order then he shall give not less than two months notice of his inability to have E to the mother or shall give such shorter period of notice as the parties may from time to time agree.
(d)If the time that E was to spend with her father coincides with a weekend upon which Mother’s Day falls then E shall (unless the parents otherwise agree) spend the weekend including Mother’s Day with her mother and shall spend the following weekend with her father (as well, in the circumstances, as the weekend after that) in accordance with the normal program.
(e)If Father’s Day shall fall on a weekend in which E would ordinarily be with her mother in accordance with these orders, E shall nevertheless, spend the weekend, including Father’s Day, with her father and she will then spend the following weekend with her mother as well as the weekend following that in accordance with the normal pattern under these orders.
(f)If the mother’s birthday, the father’s birthday or E’s birthday should fall on a day when E is not with a parent then she shall nevertheless (unless the parents otherwise agree) spend not less than two hours on that day with the parent with whom she has not been living. The parents will agree about the time during which such two hours will occur but in default of agreement shall be between the hours of 5pm and 7pm on a school day or between the hours of 4pm and 6pm on a weekend.
(g)(i) Notwithstanding the general terms of these orders, in relation to Christmas Day each year E will spend time with the parent with whom she is not then living/spending time from 12 noon on 24 December until 2pm on 25 December.
(ii)Unless the parents otherwise agree change-over in respect of Christmas will be effected by the parent with whom E is then living/spending time delivering E to the other parent at his or her residence and by the return by that parent to the parent with whom she is then living/spending time at the conclusion of the period referred to.
(iii)The arrangement set out in the last sub-order about change-over will apply also to all school holiday handovers, unless the parents otherwise agree.
Each of the parent be and is hereby restrained from saying unkind or unpleasant things or otherwise disparaging or denigrating the other parent in the presence of E and each parent is further restrained from permitting any other person to do so in the presence of the children.
Each parent shall notify the other parent of any health issues relating to E including but not limited to any health concerns that may arise while E is in his or her care, any medication or treatment administered to E and all details of E’s attendance upon a medical health practitioner or hospital. Each parent will provide the information referred to as soon as practicable after the event giving rise to the provision of information arises.
The parties will, unless they otherwise agree, or are able otherwise satisfactorily to communicate, provide communication to each other through a communication book. The material contained in the communication book will be factual and not commentary on the part of the parent and will not include or be used by either parent as a vehicle for criticising the other parent.
(a) E may telephone the parent with whom she has not been living/spending time at any reasonable time.
(b)The parent with whom E has not been living/spending time may telephone E on any day that she is with the other parent between 6:30pm and 7pm and the parent with whom E then is will use all reasonable endeavours to make sure she is available to take the call at that time.

In relation to the property it is ordered that:

Pursuant to s 79A of the Family Law Act 1975 (Cth) the orders made on 29 August 2006 are set aside.
To effect a property division between the parties in accordance with s 79 of the Family Law Act 1975 (Cth) the husband shall pay to the wife within 42 days of the date hereof the sum of $205,370.
Otherwise each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control including in the case of the husband that he is entitled both at law and in equity to the property known as D property in the Australian Capital Territory.
Each of the parties will indemnify and keep the other indemnified in respect of any debt owing by that party to any other person (including in the case of the husband, any liability that may arise in relation to the husband’s mother’s estate).
Otherwise each of the parties will retain any interest he or she may have in any superannuation fund or as a result of any entitlement deriving from any statute.
The husband will endeavour to locate and if he is able so to locate will return to the wife her engagement and wedding ring and will do so within a period of 42 days from the date of these orders.
If the husband is unable or unwilling to make the payment referred to in Order 11 above, within the period designated, unless the parties otherwise agree to extend the period, each of the parties will do such things as may be necessary to cause the property to be sold and upon completion of the sale of the property the parties will cause from the proceeds of sale a sum to be paid to the wife such as would provide her (taking into account the other assets and liabilities referred to in the schedule of assets and liabilities in my judgment delivered on 23 September 2009) so that she holds 60 per cent of the total property (excluding superannuation).
By way of facilitating and enabling the sale of the property referred to, although these orders reserve liberty on the part of the parties to apply about the terms of the sale, the wife shall be constituted for the purposes of these orders as trustee for sale and shall have such powers as may be necessary to effect the sale, both including the appointment of an agent and determining the method of sale subject to the following restrictions.
(a)The parties will consult and agree about a listing price for the sale of the property. If the parties are unable to agree they will accept the advice of the listing agent as to a reasonable price for the sale of property in the market conditions then prevailing.
(b)The parties will consult, and if possible agree, about whether the property will be marketed by private treaty or public auction. If the parties agree that the property should be the subject of auction then the parties will confer and agree about a reserve price for the property. If they are unable to agree they will accept the advice in relation thereto of the listing agent.
(c)If prior to the time of the listed date for the auction or subsequently if the property is passed in at auction, or if during the period of private treaty negotiations an offer is received for the purpose of the property which is less then the listing price or the reserve price the parties will confer and genuinely attempt to reach agreement about whether such an offer should be accepted. If they are unable to agree as to whether the offer should be accepted they will accept the advice of the nominee for the time being of the President of the Australian Property Institute as to what would be a reasonable market price in the prevailing circumstances at the time that the offer is made.
(d)Neither party will be required in the event of a sale to do any further work in relation to the property other than in the case of the husband that he continue to maintain the property in a reasonable and appropriate way for a tenant occupying the premises and will carry out all maintenance which would be consistent with the tenant’s obligation. (This acknowledges that the husband is not a tenant and is nevertheless not required to undertake any capital expenditure in relation to the property prior to its sale.)
There be liberty to apply about the terms of implementation of these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 557 of 2007

MS JACOBS

Applicant

And

MR SCHAEFFER

Respondent

REASONS FOR JUDGMENT

Introduction

This matter has both parenting and property issues for determination.
There are three children: S and B, twins born in May 1992 (now age 17) and E, born in December 2000 (now age 8). It was agreed by the parties that S and B would determine the time they wished to spend with each of the parents. E lives with her mother (and does not speak to her father) and B lives with his father (but has more recently began spending more time with his mother.)
The parties separated in July 2006 after a 15 year marriage. In general terms, the mother characterised the relationship as being one in which the father was very controlling over financial matters. He also maintained his own study which he locked and dictated the chores the mother was to perform. She asserts that this control regularly amounted to instances of verbal abuse, physical assault, such as punching her, pulling her hair, chasing her out of his study and pushing her resulting in her falling off the veranda. She also asserted that there were instances of sexual assault, including raping her and using violence during intercourse including pulling her hair and holding her down. She further asserted that the father would punch the children, essentially as a disciplinary measure.
The father denied the allegations regarding assaults and insists that household chores were shared. He does not deny that he spent considerable periods in his study (which he locked to prevent the children from stealing his things but says he showed the mother where the key was kept.) He accepts that he was responsible for financial matters in the family (including that the wife’s income went into his account and he then gave her $70 per week) but explains that this was because the wife had asked him to manage the finances as she was not interested and not able to do so.
Consent orders were made on 28 August 2006 providing that the husband would pay the wife $25,000, that he would retain the matrimonial home and indemnify the wife in respect of the mortgage and that the parents would have equal shared parental responsibility and equal time with the children. As it occurred, only E lived week about with the parents.
The parents are in high conflict and communicate though a communication book or through E. The father has re‑partnered and was re‑married in May 2008. The mother has a partner but she indicated in her evidence that the relationship was not particularly serious and they did not intend to live together.
The key issue in dispute in relation to parenting issues is the father’s capacity to properly provide for E’s emotional needs and consequently, whether a shared care arrangement is in E’s best interests. The key issue in relation to property is whether there has been a miscarriage of justice as a result of fraud, misleading evidence and/or duress and whether it is appropriate to vary or set aside and substitute new orders for the consent orders.

Background

Without intending to be exhaustive, I provide the following history of events.
The parties married in August 1991 and lived in the father’s mother’s home.
In 1992, the father asserts that he borrowed $235,000 from his mother and executed a mortgage to that effect. The mother asserts that she understood this to be a gift and in exchange for this gift, the father had waived his right to inherit an interest in his mother’s home. The mother says the first knowledge she had of a mortgage was when it was listed in the father’s financial statement before this Court. At this time there was also a mortgage with the Commonwealth Bank for $200,000.
In 1992, the twins S and B were born. The father continued to work full‑time and the mother was the primary carer.
In 1996, the father asserts that he executed a mortgage in favour of his mother in an amount of $485,000. The terms of the mortgage are said to be that it was repayable by 31 December 2005 or upon an earlier demand, with 7% interest (I discuss the controversy about how the interest was to accrue below in my judgment.) Again, the mother contends that she had no knowledge of this mortgage until it was referred to by the husband in the application for consent orders.
E was born in December 2000. In this same year, the mother’s parents gave the parties an amount of money. The amount given is not agreed. The mother states that it was $10,000 and the father states it was $20,000 that was subsequently repaid. The father produced evidence in his affidavit filed 20 November 2008 showing a copy of the cheque paid to the mother’s mother for an amount of $20,000. I accept that the money was advanced and was repaid.
The parties separated under one roof in July 2006.
The father asserts that his mother demanded (orally) repayment of the loan in August 2006. There was no evidence of any repayment being made.
Approximately one week later, the father drank alcohol to excess for the first time in his life. The mother called friends to locate him and he returned home unharmed.
Another week or two later, the mother left the matrimonial home with S and E. Shortly afterwards, the father sought legal advice and signed the consent orders. The circumstances in which the father presented the consent orders to the mother are contested. The father says that he gave them to her after they had discussed and agreed upon the property and parenting arrangements and organised a Justice of the Peace to witness it. The mother says that he threatened that if she did not sign the orders, he would retain E, that he would never allow the mother to see the children again and that she would otherwise get nothing in terms of property division.
The consent orders were made on 28 August 2006, as outlined above.
The mother made allegations of further intimidation and assault after these orders were made. She recounted three instances around September 2006; one where the father yelled abuse at her and forcibly removed her engagement and wedding rings; the second where she arrived at the father’s home to collect E and he pushed her into the laundry and attempted to have sexual intercourse with her without her consent; the third when he did forcibly have sexual intercourse with her in the bedroom. She thereafter resolved not to enter the father’s house and instead would remain in her car with the doors locked until E came out to meet her. A further incident was described in relation to child support. The mother alleged in her affidavit sworn 1 July 2008 that he threatened her that if she did not tell the Child Support Agency that they had a private agreement, he would quit his job and disappear. During the telephone call to the Child Support Agency, he is said to have grabbed her hair causing her pain until she told them that they had a private agreement.
In November 2006, the father’s mother passed away, leaving the father and his sister as executors. There is no evidence that probate has been granted or that a solicitor has been instructed to commence work on the administration of the estate. There is no evidence of any demand for any repayment of the alleged loans due from the father to the estate.
The first day of the Less Adversarial Trial was in December 2007. Among other things, leave was granted for the father’s sister (the co-executor) to intervene (which she declined to do)[1] and the mother’s application in relation to property was served upon her. Other orders were made allowing the father to travel overseas with B and S and the mother was to have sole parental responsibility for S and E.
[1] This issue is discussed in more depth subsequently.
On 17 April 2008, the family report was released. In essence, it indicated that:[2]
[E’s] predicament is one where she loves both her parents and would like them both present in her life. However, at this time, with the high degree of parental conflict, [the father’s] negative attitude towards [the mother] and [the father’s] emotional unavailability to [E] a shared care arrangement is not in [E’s] best interest.
…
At this time it would be to [E’s] benefit if she were to predominantly live with [the mother] this being where she is cared for emotionally. Once [the father] has attain [sic] assistance to deal with some of the issues which precluded him from being emotionally available to the children and to communicate with [the mother] the notion of a shared arrangement with the child/children could be revisited.
[2] Family Report, 17 August 2008, 8 – 9.

The Family Consultant also recommended that the father urgently seek help to address the broken relationship with his eldest daughter, S.
On 28 April 2008, the mother’s interim application that E live with her and spend alternate weekends with the father was refused. This application was brought on the basis that E had been complaining to the mother that when she spent the week with her father, he did not pay very much attention to her and spent most of his time in the study while she watched television. In subsequent proceedings, the father said that this information caused him to alter his work arrangements so that he could be more physically available to spend time with her.

The final hearing

The finalisation of the trial was scheduled for 4, 5 and 6 August 2008. At the closing of proceedings on 6 August 2008, after the mother’s counsel had presented oral submissions, I offered the father’s counsel the opportunity to discuss his position with her client before proceeding with her submissions. She accepted that opportunity.
This was in essence for them to consider whether there was an alternative solution to my delivering my judgment particularly if I was to make findings as urged by the mother about violence on property matters on the part of the father.
Court resumed half an hour later. The father’s counsel indicated that she had taken her client’s instructions but that she did not accept them as she did not believe those instructions to be given by him when he was in a fit state of mind.
The father maintained his instructions. Counsel conveyed that the father’s instructions were that “he consents to the orders being vacated, the property orders. However, he does not wish to see [E] again.”[3] Counsel continued:[4]
As I indicated, my belief is that he’s completely overwrought and not rational at the moment and, therefore, I feel that, while I’m duty bound to give you those instructions, I do not accept that they are given of his own free will.
[3] Transcript, 6 August 2008, 250.
[4] Ibid, 250-1.
The father did not consent to his counsel seeking an adjournment and refused to return to the court room. At that point, I made it clear that I had not made any determinations about the mother’s submissions. The father’s counsel indicated that she accepted this.
I adjourned the matter for 12 days to give the father time to regain some mental clarity and to assess how we could continue the matter. I suspended the time the father would ordinarily have spent with E, as I considered that if she was to arrive at his house and he refused to see her, or if he was to refuse to collect her from school, then it would be devastating to E. I gave liberty to apply on short notice if necessary.
Court resumed for the finalisation of proceedings in early December 2008. On this occasion, the mother’s counsel cross-examined the father and his wife; the father’s counsel cross-examined the mother and the father’s counsel and the Independent Children’s Lawyer further cross-examined the Family Consultant. Interim orders were made after agreement by the parties for the arrangements about time E could spend with her father over Christmas and the school holidays.

The children’s orders sought by the parties

The mother sought that she have sole parental responsibility for E; that E live with the mother; that E spend time with the father on alternate weekends from Friday after school until Monday as well as half of the school holidays and some time on Fathers’ Day, the father’s birthday, E’s birthday and Christmas Day. Other orders were sought in relation to handover, keeping the other parent informed about the issues affecting the children, a communication book and a specific time for telephone calls. The mother did not seek any orders about allocation of parental responsibility for either S or B and instead sought that s 61C(1) of the Family Law Act 1975 (Cth) apply.
The father sought that S live with the mother; the mother have sole parental responsibility for S; B live with the father; the father have sole parental responsibility for B; the parties have equal shared parental responsibility for E; that E live with each parent on a week about basis and for half of the Christmas school holidays; that each of B and S spend time with the other parent as they wish; the mother be restrained from moving more than 10km away without the father’s consent; and for telephone calls to occur at the child’s request. Other orders were sought in regard to handover, interstate and overseas travel and keeping the other parent informed about the children.
Subsequent to the proceedings in December 2008 each of the parties sought to make further written submissions and thereafter did so. In those submissions, the mother sought as she had previously, that E should spend time with the father on every second weekend and for half of the school holidays. The father sought that there should be a reversion to the week about arrangements that had previously existed. The Independent Children's Lawyer sought that E spend alternate weekends with her father but also:
one or two nights in the alternate week so that [E] can still have the benefit [of] her father collecting her from school and taking her to school, and thereby being involved with her school life.[5]
[5] Final oral submissions of the Independent Children's Lawyer.
Those three sets of submissions were received in December 2008, but before I delivered judgment in the matter the Independent Children's Lawyer sought to have the matter re-listed because there had been further difficulties about the time that E would spend with her father. I had indicated at the time when I made orders in December 2008 that the arrangements I had put in place at that point would apply until the end of January 2009, but that if I were unable to deliver judgment by that point I expected that the parties would be able to reach agreement to continue with some form of interim arrangement until I could deliver judgment. It was only recently that the Court was advised as I indicated above that difficulties had arisen and it was necessary for a further intervention.
The matter was next before me again on 24 June 2009. No evidence was presented or sought to be presented about arrangements for E or in relation to property matters (such as revised valuations). Various submissions were made about difficulties that had been encountered over the last few months and it was submitted that E did not want to have overnight time with her father at this stage. The father submitted that there should be an immediate return to a week and week about arrangement. After the parties had presented their positions before me for some time I stood the matter down and Ms M, a Family Consultant of this Court, made herself available to discuss with the parties what arrangements might be put in place. Thereafter, orders were made by consent involving a graduated program of time that E would spend with her father but not returning to the week and week about arrangements (Endnote[i] refers).

Matters relating to E’s best interests

The determinations I make in relation to E’s best interests and where she should live and the time she should spend with each parent must be subject to the paramount consideration of E’s best interests.[6] It is not what is best for either parent or, indeed, for both parents or what might be more convenient for either or both parents. In determining what constitutes E’s best interests, I am obliged to take into both primary and additional considerations as set out in the Family Law Act 1975 (Cth).[7]
[6] Family Law Act 1975 (Cth) s 60CA.
[7] Family Law Act 1975 (Cth) s 60CC(1).

Parental responsibilities

Each of the parties seeks a different order about the parental responsibility for E. The mother seeks that she should have sole parental responsibility for E and that E should live primarily with her. The father seeks that parental responsibility be equally shared and that E’s time with each of them should also be equally shared. The Family Law Act 1975 (Cth) provides[8] that there should be a presumption of equal shared parental responsibility but this of course may be rebutted.[9]
[8] Family Law Act 1975 (Cth) s 61DA(1).
[9] Family Law Act 1975 (Cth) s 61DA(4).
Although the father disagrees, this is a matter in which there is very little doubt, (and I find) that the presumption is appropriately rebutted pursuant to s 61DA(4) of the Family Law Act 1975 (Cth).
To begin with, the parties’ relationship is so strained and difficult that it would be hard to imagine that they could work cooperatively to determine matters in relation to E’s long-term welfare and benefit.
Apart from that it would still not be appropriate to apply the presumption. The father’s conduct in August 2008 for a time (admittedly not a very long time) taking the view that he would not see E again was an indication in my opinion of (at least on a temporary basis) an abrogation of his responsibilities as a parent. Whether or not he was upset by the allegations he asserted he had heard for the first time or whether he was suffering under the strain of the Court proceedings or whether he was upset generally does not excuse his conduct. For that period at least, he demonstrated unequivocally that he was unable to place E’s interests ahead of his own. In those circumstances, it is difficult to imagine that he could objectively work (in effect) in “partnership” with E’s mother to decide matters for E’s future. The future does not promise to be without challenges and frustrations and if the husband is not robust enough to meet these challenges and still place E’s interests first, then major decisions about her welfare should be conducted by the mother subject of course to the remaining considerations under s 60CC.
Finally, it is asserted by the mother that the father had engaged in acts of violence towards her and also towards the children. For reasons that I will examine shortly, in my opinion, it is difficult for me to come to any concluded view about whether these allegations are true or not. If they were to be true, again, they would preclude, in my opinion, the application of the presumption.[10] However, that is not a determination I propose to make at this point as I do not have to make such a finding for the presumption of equal shared parental responsibility to be rebutted.
[10] Family Law Act 1975 (Cth) s 61DA(2).

Time to be spent by E with each parent

Whether or not the presumption is rebutted it is appropriate (and in this case I have been asked in any event to consider) whether E should spend equal time with each of her parents or, impliedly, substantial and significant time. In coming to those conclusions, I am to take account of her best interests while considering the matters set out under s 60CC of the Family Law Act 1975 (Cth). These include two primary considerations and a number of additional considerations. These have been the subject of extensive submissions before me and of evidence directed to them.
Two primary considerations stipulated by the Family Law Act 1975 (Cth) involve a consideration of the benefit to the child in having a meaningful relationship with each of her parents[11] and the equally important prescription that she should be kept safe and free from any abuse or violence.[12]
[11] Family Law Act 1975 (Cth) s 60CC(2)(a).
[12] Family Law Act 1975 (Cth) s 60CC(2)(b).
It is to be noted that “meaningful” in this context does not necessarily or even logically imply that the time that the child spends with a parent must be equal to the time that the child spends with the other parent. As her Honour Brown J identified in Mazorski & Albright:[13]
…“meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. (emphasis added)
[13] Mazorski & Albright [2007] FamCA 520 [26]. This approach was adopted by the Full Court of the Family Court of Australia (per Bryant CJ, Faulks DCJ and Boland J) in McCall & Clark [2009] FamCAFC 92, [121].
In this matter, it has been argued both by the Independent Children's Lawyer and by the mother in reliance upon some of the observations of the Family Consultant (who spent some time with E) that the relationship that E has with her father may be more meaningful if she did not spend equal time with him. The arrangement for equal time has already been tried between the parties and these proceedings in part grew out of the concern expressed by E that the arrangement was not to her liking. These views of E centred mainly on the fact that her father had not been giving her what she regarded as the requisite attention during the week (as opposed to the weekend).
These observations led the Family Consultant to suggest that if E were to spend weekends (alternate weekends) with her father and her mother this would enable her father to direct his attention more specifically to her and for her to have the full benefit of her relationship with him.
As identified by counsel for the father, to his credit, the father has seemed to listen to the criticism made of him and adjusted his work hours to enable him to spend more time with E during the week she was with him or could be with him and then made up the work time in the week she was not with him. It is not clear whether this was something that would be likely to have any effect on his career or on his work relationships. It nevertheless represented on his part a commitment to E’s welfare.
It appears, however, that there had been three periods where the father has not been able or has been unwilling to maintain the shared time arrangement. The first was at about and immediately after the death of his mother in November 2006. (This of course is understandable in many ways.) The second was after the incident in Court on 6 August 2008 where for some time he did not see E on a week-and-week about basis and, indeed, he has not resumed seeing her in that way since. The third appears to have been some event earlier this year relating to a period where the father was overseas. This was not the subject of evidence before me and I do not place any reliance upon the circumstances as I am unable to make any findings about crucial matters such as notice and the unavoidability of the father’s being overseas if this was the case.
Whatever may be the situation each of the parents is concerned that E should have a proper and meaningful relationship with her father. The composition of that relationship and the physical arrangements to enable such a relationship I will consider in more detail below in my assessment of the considerations set out under s 60CC of the Family Law Act 1975 (Cth).
The other primary consideration is that I must ensure E is not subjected to any abuse or violence. There is some force to the submissions made about these matters by counsel for the father. The mother did not raise at the time when the events occurred or even at the beginning of the proceedings allegations about violence to the children. These emerged in cross‑examination at the trial many months after the proceedings had begun and after affidavits had been filed. I observed that the father was visibly shocked at the allegations and responded with a vehement denial.
More broadly the mother had alleged that her signature on the consent orders had been obtained through duress and in circumstances where the father had applied both sexual and physical violence towards her.
It might be asked, rhetorically, why would the mother feel any reticence about disclosing the alleged violence towards the children in circumstances where she was prepared to admit what would seem to be the more embarrassing and intrusive allegations about the husband’s conduct towards her.

Standard of proof

There are, at law, two standards of proof in relation to the proving of matters before a Court. In criminal matters, the standard of proof for the prosecution of a crime is establishing the defendant’s guilt beyond reasonable doubt.[14] The civil standard, which is applicable to these proceedings, is that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[15]
[14] Evidence Act 1995 (Cth) s 141(1).
[15] Evidence Act 1995 (Cth) s 140(1).
Proof on the balance of probabilities involves, among other things, a consideration of what is more likely to have occurred than not. However, it has been well known for some time (and the Evidence Act1995 (Cth) provides for this[16]) that where what is being sought to be proved is a grave and serious matter, or put in more blunt terms, if what is sought to be proved might be a criminal action, then the Court must apply what has been loosely described in the past as the Briginshaw v Briginshaw[17] standard of proof. In that decision, their Honours (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) considered whether the matter required to be proved (which related to whether adultery had occurred) was to be proved on the civil standard of proof or some other standard. In his, judgment, his Honour, Dixon J,[18] in commenting about the difficulty in making decisions in civil cases, stated:[19]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
[16] Evidence Act 1995 (Cth) s 140(2) refers.
[17] Briginshaw v Briginshaw [1938] 60 CLR 336.
[18] His Honour subsequently became Chief Justice of the High Court of Australia in 1952.
[19] Briginshaw v Briginshaw [1938] 60 CLR 336, 361 (Dixon J).
The factors which would preclude my being able to make such a finding on the balance of probabilities in light of the standard imposed by Briginshaw v Briginshaw are the late reporting of the allegations and what appeared to be the genuine distress and subsequent vehement denial by the father of the matters alleged. I also believe that there is force to the submission from the father’s counsel that it would be odd at least that the mother would agree to E’s spending half her time with her father after separation if she were concerned about her physical safety. For the reasons advanced by the Family Consultant, I am satisfied that the mother has a deep-seated genuine and appropriate concern for E’s welfare and, to that extent, she is the best judge of matters that might impinge upon her safety. Hence her decision is persuasive even if contrary to her oral evidence.
However, in coming to that conclusion I do not conclude that the mother must necessarily have been lying. The fact that I am unable to find an allegation proved does not mean that I would necessarily find that it was false. In particular in general terms, notwithstanding the strong contrary submissions from the father’s counsel, I thought the mother gave her evidence in a straight‑forward and believable way. I would not be prepared to make any generalised or (in this particular case) any particular determination that she had not been truthful as she believed it to be.
The allegations about the conduct against her are in a slightly different category. To begin with they have a longer provenance and I found in this instance her evidence was more believable than the denials by the husband. I suspect, however, like so many things in life, the truth lies somewhere in between the allegation and the total denial. Again it is difficult for me to make any positive finding that the events occurred in accordance with the requisite standard of proof.

I am left with an uneasy feeling about the allegations. While they do not involve violence directed to a child, if the violence did occur it would have to have a bearing upon matters relating to E’s best interests.[20] In a matter in which it was sought to prevent one parent from having any time with a child at all it may be necessary for me to examine in great detail the nature of the allegations and to make a determination. In this matter there are a number of other factors which bear upon E’s best interests which, in my opinion, preclude my having to make such a detailed enquiry. I note that it was suggested by the High Court of Australia in M & M,[21] (which was a parallel decision with B & B[22]) that it may be that it is not in a child’s best interests for a court to make a determination about some factors. The orders I make must be subject to the overall prescription as I have said above of E’s best interests. It is not a criminal investigation.
[20] Family Law Act 1975 (Cth) s 60CC(2)(b) & s 60CC(3)(j).
[21] M & M [1988] 166 CLR 69.
[22] B & B [1988] HCA 66.
The other factors which bear upon my decision are considered below.

E’s views

E appears to be a sensitive and mature child. This is the comment of the Family Consultant[23] and was the subject of submissions[24] and the written submissions of the Independent Children’s Lawyer and of mother’s counsel. What was submitted (and which I accept) is an anomalous position, in that E appears to be more sensitive to and more concerned about her father’s emotional wellbeing than he is about hers. This is an extraordinary burden for a young person to have and it would be nice to think that the father, when these proceedings have been finalised, will settle down and start to give more concerted attention to E’s wellbeing, rather than concentrating on what he perceives to be the injustices that have been afforded to him.
[23] Family Report, 17 August 2008, 7-9.
[24] See for example, Transcript, 6 August 2008, 246.
I note for example that after the 6 August 2008 incident he attended upon Dr T (who filed an affidavit in the proceedings.) It is clear from Dr T’s affidavit that the father, when presenting to Dr T, gave a version of the “facts” which failed significantly to take account of allegations and other matters which would not operate to his benefit. Dr T faithfully reproduced this “history” in his report. This report was remarkable for its lack of critical analysis of the information supplied that the mother had engaged in a malicious scheming and deceitful campaign of lies and allegations. I am far from being convinced that these allegations are true. I believe that if Dr T had had the advantage of discussions with the mother he may equally have shared my doubt about the vehemence and self-interested nature of the father’s allegations.
These factors[25] would leave me to conclude that it would be preferable that E should primarily remain in the area in which she feels most comfortable – that is with her mother and to have her mother as the primary parent. That is not to say she should not be able to have a proper and comfortable and meaningful relationship with her father and one which I hope will acquire elements of flexibility as she gets older.
[25] Family Law Act 1975 (Cth) s 60CC(3)(a) & s 60CC(3)(f)(i) refers.
However, I must make a decision now about orders which make clear what time E will spend with her father. This will provide both E and her father with some certainty for the future and enable them to re‑establish and acquire comfort in their relationship with each other.

Other factors

Other relevant factors are the capacity of each of the parents to provide for the emotional, educational and psychological requirements for E.[26] I have already made comment about this in relation to the father. The mother on the other hand has been observed both by me, by the Family Consultant and in the course of evidence by other witnesses as being an appropriate and loving parent and one who is conscious of E’s needs and who is able to provide for them on a regular and supportive basis.
[26] Family Law Act 1975 (Cth) s 60CC(3)(f)(i) & s 60CC(3)(m) refers.
I accept, although the evidence about the matter is relatively scant, that E’s relationship with the father’s new wife is a comfortable one. I place little weight upon this relationship as this point, not because I do not believe that her stepmother will be a positive contributor to E’s welfare but rather because the evidence about the relationship is quite limited.
I am satisfied that E’s mother, notwithstanding quite extreme provocation, has continued to exhibit a willingness and, indeed, an ability to facilitate a relationship between E and E’s father. On the other hand, E’s father while acknowledging the role that the mother has played in E’s case and upbringing has on occasions, in my opinion, been so self-absorbed as to be unable to provide perhaps the support that E might need to feel comfortable in moving from him to her mother and vice versa.[27]
[27] Family Law Act 1975 (Cth) s 60CC(3)(c) refers.
I instance in this regard although it did not involve E being present at the time, the mother’s allegations that the father called her a “whore” when he left Court on one occasion. It was urged on me by counsel for the father that I should accept the father’s denial and the corroborative evidence of his wife that he did not use those words. For my part I found the father both evasive and unbelievable about this matter and I find, notwithstanding the corroboration of his wife, that he did use the words referred to. Again I do not find that this is a matter in which he has set out deliberately to lie nor do I find that his wife lied. I am satisfied, however, that the emotional nature of the events has precluded them from having an accurate memory of what happened and I accept the mother’s version.
That lack of respect is a factor which must operate against E’s interests if it were to continue. I am hopeful, however, as I suggested above that once the proceedings have been completed, the father will return to a state of normality and will be able to apply himself in a more objective way towards E’s best interests.
Arrangements for E to spend time with her father have existed over the last year in different ways and that it would be difficult to say that anything would not constitute some variation. The parents appear to have reached agreement most recently, at least on an interim basis, on a transitional program to restore the time that E spends with her father. I am hopeful therefore that any changes that occur as a result of my orders will occur in circumstances where there is a real optimism that the parties will work towards effecting positive changes in E’s life and will do their best to ensure that she is happy and content with each of them.
Section s 60CC(3)(l) of the Family Law Act 1975 (Cth) requires me to consider whether the orders I make would be least likely to lead to further litigation between the parties. The chequered history of the litigation in this matter does not give me a great deal of confidence that the parties will be able to avoid returning to Court at some time. I hope for their sake that they do. I hope for his sake and for E’s sake that the father accepts that it may be in her interests at this point not to spend time with him on an equal basis.
The benefits that E can derive from the relationship with her father have been noted by the Family Consultant and are conceded by E’s mother. If the father is able to overcome his sense of concern for what he perceives as the injustices that have been meted out to him, he too may be able to the concentrate on moving forward without finding a need for further litigation. It is, however, a matter entirely for him to strive for a litigation-free future. For that reason, it is important that I should make orders that reflect so far as I am able to do so certainty about arrangements for the period after these proceedings.

Conclusion as to the Children’s Matters

It was attractive (in some respects) to consider the variations to the mother’s proposal suggested by the Independent Children’s Lawyer. However in my opinion, this proposed arrangement does not have any evidentiary support and it does not follow from the recommendations of the Family Consultant.
It seems to me that if E is to spend (in alternate weeks) from after school on a Friday until she returns to school on the following Monday with her father this will give an opportunity for her to have some proper and “meaningful” time with him on a regular basis. I am hopeful that, if he were unable to spend time with her during holidays earlier this year, this was only an aberration in his working arrangements – not an indication that there will be continuing problems with holiday time. It is important that he should have an opportunity to spend substantial time with her on a relatively regular basis and it will give them an opportunity possibly to get away from his home and to share some new experiences.
I have considered the recommendations of the Independent Children’s Lawyer that E spending time with her father in the alternate week for one or two nights would give him an opportunity to be involved (in part) in her schooling. It would also give her a different experience of mid-week arrangements. However, there is at present no evidence to support the suggestions of the Independent Children’s Lawyer. I am not prepared to experiment in this way. I see that it may represent a path forward in due course once things have settled down between the parents and E. E however should be the driver of this arrangement without any urging either for or against it by either parent. It appears she is a child who is both sensible and mature beyond her years and will be capable of making her opinions about what she wants felt in due course.
Arrangements should be made for special days as was suggested by the mother and for that matter by the father.

The property orders sought by the parties

The primary application in respect of property in this matter was an application under s 79A of the Family Law Act 1975 (Cth). The application filed by the wife sought to set aside orders that were made by consent on 28 August 2006. She asserted that the orders should be set aside under s 79A(1)(a) of the Family Law Act 1975 (Cth) because there had been a miscarriage of justice because (and I summarise rather than quote):
a)The husband misrepresented that he owed money to his mother (now deceased);
b)The husband misrepresented the nature and value of his superannuation entitlements;
c)The husband’s alleged violence towards the wife and towards the children and his alleged holding of E “hostage” constituted duress which overbore the wife’s will, as a consequence of which she signed the consent orders.
The orders in effect provided that the wife should receive the sum of $25,000 and that otherwise the property and any other debts (including any debt owed to his mother) would remain with the husband.
These orders are endnote.[ii]

The property pool

Set out hereunder is the list of assets and liabilities of the parties for the purposes of the hearing. As it appears they show a net property pool of $622,535 (excluding superannuation). However, this total does not include the amount of money asserted by the husband to be owed to his mother or more precisely to his mother’s estate.
List of Assets and Liabilities
Assets

Ownership Description Wife’s Value

Husband Matrimonial home $850,000

Wife St George shares $5,233

Wife CBA savings $163

Wife ANZ savings $248

Husband Volkswagen Nil

Wife Toyota Corolla $13,000

Total $868,644

Liabilities

Ownership Description Wife’s Value

Husband Bendigo bank mortgage $218,456

Husband Mortgage to [mother’s] estate Nil

Wife GE creditline $702

Wife ANZ credit card $847

Wife Loan from mother (legal fees) $26,104

Total $246,109

Net Total $622,535

Superannuation

Ownership Description Wife’s Value

Husband PSS $73,629

Wife Asset Super $23,724

Total $97,353

The amount set out in the table above were not in dispute except for the wife’s loan from her mother for legal fees of $26,104. The evidence about this matter was somewhat unsatisfactory. It appeared on the joint balance sheet but notified at the opening of the proceedings as a matter not in agreement. The essence of the dispute was that this was money that was incurred post separation and therefore should be a debt that adheres to the wife alone. The counter argument identified by Mr Nash in his opening[28] that:
We are told the mortgage payout figure has been used by the husband for legal fees…
[28] 4 August 2008, Transcript, 9
That was the subject of further discussion but no finality on 5 August 2008. On that day Mr Nash, on behalf of the wife, subjected the husband to significant cross-examination about the fact that he had drawn money from the redraw facility through a mortgage on the house to pay for his legal fees.[29] The essence of the argument, it appears from the husband, is that it was his wages that was paying for his legal fees although other amounts were drawn out of the mortgage and the mortgage redraw facility was extended quite significantly by some $52,000 over the period when he was in occupation of the house. He asserted[30] that this had gone on
Yes there’s been improvements to the home; there’s been landscaping I paid for stuff like that.
[29] 5 August 2008, Transcript, page 194, lines 20, 23, 30, 33, 47, page 195, line 5 and so forth.
[30] 5 August 2008, Transcript, 195
He was unable to recall how much he spent on legal fees[31] and was unable to say how much of the increase in the redraw facility was attributable to legal fees. However the re-examination was subsequently unhelpful in resolving the issue about the legal fees.
[31] 5 August 2008, Transcript, 195
The husband’s answers in relation to this matter were at best unhelpful and at worst evasive. It was his obligation to make disclosure about the amount that had been expended on legal fees and this must properly have been a matter within his possession or control. His failure to be able to provide that information may or may not be wilful but certainly constitutes a level of nondisclosure which would allow me to make a relatively robust finding about the fact that he had on the balance of probabilities made payments in relation to his legal fees from the mortgage which remains as a joint liability. I am unable to make any determination about the amount that he did so draw for that purpose but it would be fair in the circumstances in the light of his failure to make an appropriate disclosure to find that it was an amount approximately equal to the amount expended by the wife and borrowed from her parents as appears in the list of assets and liabilities set out above. There is no reason to believe that in the course of the proceedings his fees would have been either significantly less or significantly more than hers.
Accordingly, as the full amount of the mortgage as at the date of the trial and agreed as at the date of the trial is to be brought into account then it would be fair in the circumstances to allow the amount of the loan that the wife obtained from her mother to be treated as a joint liability.

Section 79A – Discretionary remedy

It should be noted that the remedy available under s 79A(1) is a discretionary remedy and if the effect of setting the orders aside would simply be to produce a pool of property no different or little different from that which had been asserted as available for distribution in the original consent orders, then little purpose would be gained from the exercise of that discretion in favour of the wife. For example, if the amount due to the mother’s estate (all other things being equal) were perhaps not as asserted by the husband at the time the consent orders were entered into (approximately $1.3 million) but rather a figure closer to $900,000, although that would be a significant difference between what had been represented and what was fact, there would be little point in setting the orders aside because there would still be no net property available for distribution.
During the course of final submissions made on behalf of the wife, I suggested to counsel for the husband that she may wish to take some time with her client to see if there was a basis upon which he might consider consenting to the setting aside of the orders on a limited ground rather than on the grounds that had been urged upon me by the wife. I was at pains to point out that I had reached no conclusion about any of the matters so far addressed before me but felt in the circumstances it was appropriate to provide an opportunity for a ‘concession’ to be made if the husband wished to make it.
After a time it appeared that things had not progressed outside the courtroom as dispassionately as might have been expected. As it happened, and as I have described in my reasons above, the husband had apparently become very emotional and when the matter returned to Court counsel for the husband, announced that her client was unwilling or unable to return to Court because he was so upset. The matter was consequently adjourned to December 2008.

Contributions of the parties

The parties were together for a period of approximately 14 years. During this time the husband’s employment in the New South Wales public service initially and the Australian Federal public service subsequently continued. The wife also worked from time-to-time although she was the primary carer for the children. It was not seriously asserted during the course of the proceedings, nor would I be prepared to find in the ordinary course of events that the contributions made by the parents save for external contributions (to which I will return) were other than equal.
However, this was a case where there were significant external contributions. On the part of the husband in particular it was asserted that his mother advanced the sum of $235,000 which was secured by way of mortgage over a property known as F property. She subsequently advanced a further sum of $485,000 which again was secured by way of a mortgage (I shall refer to this mortgage for convenience as the mortgage second in time).
If the mortgages are valid and enforceable and likely to be enforced, even if I were to disregard the purported interest attributable on those mortgages, the principal amounts repayable alone would diminish the pool of assets for division between the parties to a point of insignificance.
The wife asserted that the mortgages were not genuine and that the transactions had not occurred.

“Neither a borrower nor a lender be:”[32] the validity and enforceability of the mortgages

[32] “…For loan oft loses both itself and friend, and borrowing dulls the edge of husbandry." Hamlet Act I, Scene III.

I propose to approach this matter in the following way:
a)To consider and define whether or not the mortgages were advances made and were genuine transactions;
b)To consider the terms of the mortgages themselves to determine whether an amount or amounts are due in respect of each mortgage, either for principal or interest;
c)To consider the effect of the Limitation Act 1969 (NSW);
d)To consider the effect (if any) of the fact that subsequently to the consent orders having been entered into the husband’s mother died. The husband and his sister it appears (although the husband’s involvement was not clear until quite late in the proceedings) to be the co-nominated executors and equal beneficiaries of their mother’s estate. No evidence was adduced the probate has been applied for in relation to that estate;
e)If there is a legal liability due from the husband to his mother’s estate, whether such liability is properly to be taken into account in relation to a division of property between the husband and the wife in these proceedings (the Af-Petersons v. Af -Petersons[33] point).
[33] See Af-Petersens & Af-Petersens (1981) FLC 91-095 (per Nygh J.)

Were the mortgages genuine transactions?

Notwithstanding the wife’s assertions about these matters, it became clear during the course of evidence that it is more probable than not that the money asserted to have been advanced by the husband’s mother was advanced. Although the wife asserted from time-to-time that she was unable to verify that the sums that the husband claimed had been provided by his mother were in fact paid, there was really no evidence to the contrary and the amount of money spent by the parties on the renovation, construction and improvement of the various properties is in large measure corroborative of the husband’s evidence. On this point, I accept his evidence and accept that the advances were made by his mother.
The mortgage documents on their face appear to be genuine. One of the witnesses to the execution of the documents gave evidence and her evidence that the documents were signed, although vague, I accept. The documents were clearly not drafted by a lawyer, but it seems to me, within the context of a family arrangement, these were documents that were designed to have the effect of charging land with the repayment of the debt or debts. On balance, again I accept the firm positive evidence of the husband that the mortgages did exist, were contemporaneous with the advances and were genuine to the extent that they were intended to create a legal liability. I rely in large measure for this conclusion on my assessment of his cross-examination.

The obligations that flow from the mortgages

I take the first mortgage. As appears from the oral evidence,[34] the first mortgage was entered into in 1992. It contained the following relevant clauses:
[34] Transcript, 6 August 2008, 229.
1A.2
The Mortgagor will repay to the Mortgagee the Advance (or such much thereof as may remain unpaid) together will all interest and other moneys due to the Lender pursuant to this Mortgage, within three (3) calendar months of the date of service on the Mortgagor of written notice from the Mortgagee requiring the Advance to be repaid. (emphasis added)
…
1A.4
No interest shall be payable by the Mortgagor until the Mortgagee serves written notice on the Mortgagor requiring interest to be paid. (emphasis added)
…
2.4 Default
If at any time any Event of Default occurs then, notwithstanding the waiver of any previous default:
a) the whole of the Secured Moneys including accrued interest (if any) will at the option of the Mortgagee become due and payable immediately although any time appointed for payment of them may not have arrived; and (emphasis added)
b) the Mortgagor will pay the whole of the Secured Moneys payable by it to the Mortgagee upon demand (together with interest on them computed from the date of demand up to and including the date of payment).
10.3 Waiver
No failure to exercise and no delay in exercising any Power will operate as a waiver, nor will any single or partial exercise of any Power preclude any other or further exercise of such Power, or the exercise of any other Power.
…
10.7 Notices
All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Mortgage will be:
a) in writing addressed to the address of the recipient shown in this Mortgage or to any address which it may have notified the sender;
...
It is clear that the option referred to in clause 2.4 (above) was not exercised by the husband’s mother prior to her death.
It is equally clear that the husband’s actions in dealing with the property which was the subject of the mortgage, constituted a default and this default occurred without the consent in writing of the mortgagee.[35] He sold the property.
[35] Transcript, 6 August 2008, 231.
The events constituting the default were known (it appears) to the husband’s mother[36] and yet no action was taken by her until a conversation purportedly occurred in or around early August 2006 (as stated by the husband in his Affidavit filed 14 August 2007) where his mother orally requested that a sum of $1,354,550 be repaid (for both mortgages.) I can make no finding that the husband’s account of this conversation is precisely what occurred but I am satisfied there was a conversation. It suffices that there is no evidence before this Court that the husband’s mother, as mortgagee, made a written request for the money owed pursuant to clauses 1A.2, 1A.4 and 10.7(a) of the mortgage deed.
[36] Ibid.
I turn to the mortgage second in time. The relevant clauses are as follows:
Firstly – The Mortgagor will pay to the Mortgagee the principal sum of $485,000.00 and all other moneys hereby secured or so much thereof as shall remain unpaid on or before 31 December 2005 or upon earlier Demand by the Mortgagee as hereinafter provided. The Mortgagor may repay the principal sum, or so much thereof as shall then remain unpaid, at any time during the term hereof, and interest shall abate as from the date of such payment.
Secondly – The Mortgagor will pay interest on the principal sum or on so much thereof as for the time being shall remain unpaid calculated on annual rests, and upon any judgment or order in which this or the preceding covenant may become merged, at the rate of Seven (7%) per centum per annum as follows, namely – By annual payments calculated in arrears on the First day of July in each and every year until the principal sum shall be fully paid and satisfied, the first of such payments computed from the date hereof, to be made on the 1^st day of July 1997. The Mortgagee may elect to forgo interest hereunder for any period of one year or less as notified to the Mortgagor.
The husband represented[37] to the wife at the time the consent orders were entered that interest was payable. In my opinion, it is not compound interest. The “Secondly” term outlines that interest accrues on by annual rests on a simple interest basis and there is no proper construction which would permit the charging of interest on interest as was the assertion by the husband[38]. Again at the time that the consent orders were entered into I am not suggesting the husband had fraudulently represented that there was compound interest when in fact there was not[39]. In my opinion, it is more likely than not that he completely misconstrued what the nature of the interest was. Nevertheless, what he represented (the total figure due) was not factually true.
[37] Husband’s affidavit dated 14 August 2007 [5], [6] and [26]
[38] Husband’s affidavit dated 14 August 2007 [26]
[39] It is not clear that he represented to the wife that the interest was compounded as such. The figure claimed seems nevertheless to have been so derived (see [26] of his affidavit).

The effect of the Limitation Act 1969 (NSW)

Notwithstanding that no written notice was given by the husband’s mother prior to her death in relation to the either mortgage, it would appear that the husband’s mother’s estate is permitted[40] to exercise the option of “calling in” the debt pursuant to the terms of the mortgage first in time and pursuant to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).
[40] Clause 1.3(f) (parties): references to any party to this Mortgage or any other document or agreement include his or her executors, administrators and assigns or (in the case of a corporation) its successors and assigns.
As the option is still available to the estate to call in the mortgage debt, the limitation period has not yet commenced as the cause of action has not yet been triggered. Once (or if) the option is exercised, the limitation period is 12 years from the date of the triggering event.[41] There is, of course, pursuant to the strict terms of clauses 1A.4 and 10.7, no interest yet payable. The only amount recoverable at this point would be the principal ($235,000) and any interest that could accrue could only accrue from the date written notice had been served.
[41] Limitation Act 1969 (NSW) s 42(1) refers (in relation to the recovery of principal money, possession or foreclosure of the equity of redemption of mortgage property.)
The situation perhaps is different with the mortgage second in time. The principal would appear to be recoverable and not affected by s 42(1) of the Limitation Act 1969 (NSW). Section 42(1) relevantly provides:
42Action for principal, possession or foreclosure
(1)An action on a cause of action:
(a)to recover principal money secured by mortgage,
(b)to recover possession of mortgaged property from a mortgagor, or
(c)to foreclose the equity of redemption of mortgaged property,
is not maintainable by a mortgagee under the mortgage if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.
(21)Paragraph (a) of subsection (1) applies to a cause of action:
(a)to recover principal money from any person, whether as principal, surety or otherwise, or
(b)to recover principal money by way of:
(i)the appointment of a receiver of mortgaged property or of the income or profits of mortgaged property,
(ii)the sale lease or other disposition or realization of mortgaged property, or
(iii)other remedy affecting mortgaged property.

However, it would seem interest would be only recoverable in accordance with s 43(1)(a) of the Limitation Act1969 (NSW). Section 43(1) of the Limitation Act 1969 (NSW) relevantly provides:
43Action for interest
(1)An action on a cause of action to recover interest secured by a mortgage is not maintainable by a mortgagee under the mortgage if brought after the expiration of:
(a)a limitation period of six years running from the only or later of such of the following dates as are applicable:
(i)the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims, and
(ii)where a mortgagee under a prior mortgage is, on the date mentioned in subparagraph (i), in possession of all or any of the property comprised in the mortgage securing the interest, and after that date discontinues his or her possession—the date of discontinuance, or
(b)the limitation period fixed by or under this Act for an action between the same parties on a cause of action to recover the principal money bearing the interest,
whichever limitation period first expires.
The “Secondly” term of the mortgage deed (second in time) suggests that interest was accruing from 1 July 1997. No interest repayments have been paid nor was any action taken by the husband’s mother (with the exception of the purported conversation in August 2006 prior to her death). Pursuant to s 43(1)(a) of the Limitation Act 1969 (NSW), this means that the only interest capable of being recovered by the husband’s mother’s estate is interest accrued at seven per cent on annual rests from 1 July 2004. I calculate that the interest payable would be $485,000 multiplied by 0.07 multiplied by 5 years (1 July 2004 to 1 July 2009), which equals $169,750. An additional year’s interest (of $33,950) would also be due and payable on 1 July 2010.
Hence the total sums that are said to be owing to the estate are approximately $889,750. I find that this sum is both valid and enforceable. The consequence of this finding is that it would have the effect of substantially reducing, if not eliminating, the whole of the property available for distribution between the husband and wife.
If my determinations as set out above are correct and there is a legally enforceable debt in respect of both mortgages, I am nevertheless obliged to consider whether it is likely to be an obligation which would be enforced. The question remains: is the total sum owing likely to be pursued?

“A pound of flesh, to be by him cut off?”[42] – Should I hold that the debt is likely to be pursued?

[42] “…nearest the merchant’s heart.” The Merchant of Venice, Act IV, Scene I.

The husband’s mother died in November 2006. It appears from annexure D to the husband’s affidavit filed on 14 August 2007 that the husband and his sister were the co‑executors of the estate and the equal beneficiaries thereof. Probate has not been applied for and there is no evidence about whether it will be applied for and if so on what basis. The husband’s affidavit included some material relating to these matters which was objected to and struck out. The husband’s sister was not called as a witness and no reasonable explanation was offered as to why she would not have been available to have given evidence if required to do so.
Section 42(1) of the Probate and Administration Act 1988 (NSW) relevantly provides:
42 Application for probate or administration
(1) All applications for probate or letters of administration may be made to the Court in such manner as may be prescribed by the rules.
Part 78, Rule 11(1) of the Supreme Court Rules 1970 (NSW), relevantly provides:
11   Delay
(1) Where proceedings for a grant:
(a)  are not commenced until six months or more after the death of the deceased, and
(b)  are the first proceedings for a grant,
the plaintiff shall file an affidavit explaining the delay.
The husband is in a conflicted position in respect of the probate issue. On the one hand, his obligation as executor (at least as co‑executor) would be to collect money due to the estate. On the other hand, as the person from whom the money is to be collected it would be reasonable for him to utilise such defences, either at law or in equity, as might be available to him. In such circumstances it is difficult to believe other than that the appropriate course of action for the husband would be for him to disclaim his executorship in favour of his sister. His conflict of interest and the untenable nature of his dual role in proceedings about the estate (if not directly obvious to the husband at the time that his mother died) should have been directly obvious and should have resulted in his disclaiming his executorship. Even during the course of the hearing, the husband did not suggest he would do so. Indeed during the course of the hearing, he revealed that he was a co‑executor when there had been an assumption in the procedures (erroneous as it appears from looking at the Will) that his sister was the only executor.
It is reasonable to construe the husband’s failure to remove himself from his conflicted position as indicative of the fact that he never expected the obligation to be enforced. Moreover, the delay in applying for probate when no reason is put forward as to why that should be so is further evidence of the fact that it is improbable that the full recovery of money that might be due in respect of the advances made by the husband’s mother would be sought by the estate.
On the balance of probabilities, in my opinion, I should find that the prima facie position is that the debts will not be enforced. In a family arrangement such as this the principles that guided the Court in Af-Petersens & Af-Petersens[43] are relevant.
[43] Af-Petersens & Af-Petersens (1981) FLC 91-095 (per Nygh J.)
In Af-Petersens & Af-Petersens, his Honour Nygh J stated (in the circumstances of determining the likelihood of a parent pursuing a valid and enforceable debt from their child who was a party to the proceedings):[44]
The next question is to what extent I should discount the assets of the parties having regard to their indebtedness. I do not for these purposes for any moment doubt the existence and enforceability of the debts that I have listed above. But in taking account of the “obligations” of the parties, I must consider how pressing such an obligation is. It is fairly common in this Court to meet a situation where a parent has made a loan to a child which is in all respects legally enforceable, but which is not in fact enforced and would not really be expected to be enforced. It is no doubt an “obligation” but if the obligation is not likely to have to be met, it should not be taken into account.
[44] Af-Petersens & Af-Petersens (1981) FLC 91-095, 76,669.
The prima facie position is as I have set out above. It was open to the husband to have called evidence himself to rebut the prima facie position or, more importantly, to have called his sister to give evidence about her intentions and any decisions that had been made about what would be done to enforce the debt or any part thereof in the future. It would have been open to the husband to have given evidence about why he had not disclaimed the executorship. He did, however, none of these things.
During all relevant times for the course of the hearing he was represented by able and experienced counsel and no attempt was made to introduce the additional evidence. Accordingly, on the balance of probabilities, it seems to me that the correct finding is that notwithstanding there may be a debt validly due in respect of both mortgages, the total debt is sufficiently unlikely to be enforced that I should not take that total sum into account for the purposes of determining the pool of property for distribution between the parties.
I am further reinforced in my opinion and my finding about this by the fact that during the time that the husband’s mother was alive she did not for many years seek to enforce the debt or to require from the husband payment in any way. The conversation with him about the amount due from him (which coincided with the separation of the parties) was the nearest on the evidence that she came to making any demand for repayment.
I am further reinforced in my view about the enforceability of the debts and the husband’s opinion thereof by the fact that when he approached the banks for finance in relation to the purchase of various properties he did not disclose to the bank the existence of the mortgages due to his mother.
Cross-examination of the husband[45] reveals that the husband did not disclose at least to the Bendigo Bank and I find that he did also fail to disclose his mother’s mortgages to the Commonwealth Bank.[46] It is interesting in that the husband was anxious to assert[47] that he was not being dishonest. He reiterated that to subsequent questions and to the extent that he asserts that he was not dishonest it must mean consistently that he did not regard the mortgages to his mother as something that would be likely to be enforced or if it were to be put bluntly something which would in any way impinge upon his obligations to the banks.
[45] 5 August 2008, Transcript, 146
[46] 5 August 2008, Transcript, 147
[47] 5 August 2008, Transcript, see lines 23 and 24
The possibility of some enforcement is nevertheless a factor (although in my opinion a faint one) which might properly be taken into account under s 75(2) as a potential liability for the husband. It is not my part to decide whether or not he may have a valid defence for the claim for the amounts due arising out of the delay (laches) of his co‑executor in applying for probate and seeking to call-in the relevant assets of the estate or whether he has in fact (although it does not seem likely) altered his position to his detriment to enable him to invoke the doctrine of promissory estoppel. It suffices to say that the issue is far from clear.
Such a determination is important because it means that the pool of property for distribution between the parties is substantially more than it would be if in fact these debts were recognised as due and likely to be enforced.
Hence, if there were otherwise grounds for setting aside the orders made by consent on 28 August 2006 then it would be feasible for the order to be made within the discretion of the Court.

Should the order be set aside?

The representation by the husband of the amount due in respect of the mortgages was as I have set out above clearly wrong as a matter of fact. However, in real terms, if my determinations as set out above are correct then an amount of some ($889,750) would have been due as a result of principal and interest arising from both mortgages. That is different from the $1,354,550 million asserted by the husband but still would have had the effect of reducing the pool of property for distribution virtually to nil. Accordingly, although the representation was wrong it would not in itself justify the setting aside of the orders pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth). If the husband had accurately asserted the amount apparently due under the mortgages that could reasonably still have had the same effect on the mind of the wife causing her to accept that there was no prospect of her obtaining more than the somewhat paltry amount that was in fact paid to her.

However, in conformity with my findings above, the husband at that time either knew or ought to have known that the mortgage debt was not likely to be enforced and his representation that it was an enforceable debt was therefore a misrepresentation.
Nevertheless, my finding that in fact the mortgages would not be enforceable, a fact arguably which must have been reasonably clear to the husband at the relevant time, leaves a pool of property the division of which could not justly be undertaken without there being some further recognition of the contributions made by the wife.

Representation about the value of superannuation

The second ground on which it was asserted that there was misinformation given by the husband which would bring about a miscarriage of justice related to the husband’s superannuation entitlements. There was considerable confusion about this because there are two similar amounts which were applied in different ways. However, what is clear is that the amount represented by the husband as being what his superannuation was worth was not right. At the relevant time, it would not have been open to the wife to seek a splitting order in relation to that superannuation and hence that could not properly and validly have been a consideration affecting her entering into consent orders. However, the fact that the superannuation of the husband claimed as being his was less than the amount that was in fact his (a fact that is acknowledged)[48] meant that her consideration of the proposal overall would have been affected to the extent that she would not have expected there to be a substantial adjustment pursuant to s 75(2) of the Family Law Act 1975. Given the amount involved, I do not believe that this in itself either would constitute a proper ground alone for setting aside the orders. However, in combination with the (mis)representations about the mortgages referred to above, in my opinion, there was a substantial misrepresentation which in the circumstances gave rise to a miscarriage of justice.
[48] Cross-examination of the husband, Transcript, 6 August 2008, 202.

The wife’s allegations of duress

My findings in relation to these matters to some extent render a determination about duress irrelevant. It is, however, a matter which does require some attention given the time that was occupied on both cross-examination, primary evidence and submissions about it. I do not propose nevertheless to go through each allegation to examine in detail about whether or not the allegations are made out.
My view is that contrary to the assertion of the husband there were violent acts perpetrated upon the wife during the course of the marriage. I am satisfied that these acts were the subject of some report by her to her sister who was a police woman. I do not accept, however, that the acts were of the ferocity and frequency that the wife asserted. In this regard, I accept in large measure the analysis of this position by Ms Haughton in her written submissions. It would have been incumbent upon the mother’s sister to report the crimes that the wife asserted had been occasioned to her by the husband; she did not do so. It would have been open to the mother in reporting the husband to the his employer’s ethics regulator to have raised this issue as well as other things; she did not do so. The medical evidence did not corroborate a frequency of assaults as referred to by her.
Moreover, the assertions that the father in fact assaulted the children arose in the course of cross-examination of the wife and were so late coming to the proceedings that, consistent with the submissions made about these matters by Ms Haughton, they are for evidentiary purpose unreliable and unbelievable. In this regard, I give weight to the fact that the children did not, and do not appear to be in any way intimidated or afraid of their father. One would have expected them to be at least a trifle cautious about him if in fact the assaults had occurred as the mother asserts.
In summary, therefore I do not accept the husband’s general denial of any violence. I do accept the mother’s assertion that there was some violence. I do not accept the mother’s assertion that the violence was either as frequent or as significant as she asserted and I do not accept the mother’s claim that the husband had assaulted the children.
In all of those findings and considerations it is difficult to form any strong and concrete view about whether any violence which had been occasioned to the mother would have been sufficient to overbear her will. It is not suggested that any direct and immediate violence was applied at the time to get her to sign the documents. I am unconvinced that the effect of the violence, such as it was, led to her will being overborne, causing her to sign the consent orders.
I am somewhat strengthened in this view by the fact that the mother signed the documents not once but twice and allowed a period of some 11 days to elapse between each signing. At that point, the parties were separated and there was no particular reason why, if she believed that her will was being overborne, she could not have done something about it.
Further, I do not accept the mother’s evidence that E was held as hostage to obtain the signature on the consent orders. I accept the husband’s evidence on this point. Accordingly, that in itself would not constitute a basis for her will being overborne.
The mother’s evidence[49] was
Because [the husband] had [E] in the house, and told me that if I didn’t sign them he would not let me see [E] again.
[49] 4 August 2008, Transcript, 18
And again[50]
But he would hold [E] for me to sign documents, and I felt there was nothing I could do…
[?] So as far as you were aware, you’d signed the documents, it was over and done with?--- I’d got [E] back, and I thought it was over and done with.
[50] 4 August 2008, Transcript, 36
(See also transcript pages 39 and 60.)
Tellingly[51] the wife said in cross-examination when asked whether she had spoken to her sister (a police woman) on a regular basis:
[51] 4 August 2008, Transcript, 62
Talk to your sister on a weekly basis? --- It was a while ago. I can’t ---
Your husband threatened to keep your daughter and not return her unless you sign some documents that --- ? ---If I did, it would be [my sister] that I would tell.
That would be blackmail, would it? --- What?
Well, if someone says, “I’m not giving you your daughter back until you sign this over and I’ll give you $25,000 and I’ll keep the house,” what would you think that was? --- I wasn’t thinking straight at all. It wouldn’t have even occurred to me to rationalise it. I couldn’t.
I’m not asking you about rationalising. I’m asking who [sic] you spoke to about it? --- I don’t recall speaking to [my sister] about it.
At that time? --- At that time.
So when you did it the second time around that’s when you raised it with [your sister]? --- Yes, I would have the second time, because I was surprised I had to do it twice.
But your fear that he would keep [E] was not enough for you to not hand her over the next time? --- I was in fear that every time I handed her over, which I had to do because of the court had said I did, I was in fear that he would not return her.
Well, you consented to an order that he have her week on, week off, didn’t you? --- I signed it, but I didn’t consent.
The mother was then asked why she did not raise the question of her daughter being held “hostage” with the Justice of the Peace who witnessed her signature[52] to which she replied:
No, I was in a real hurry to get back…
[52] 4 August 2008, Transcript, 63
The husband’s evidence on this matter[53] where he agreed that E was in his care but only that she was with him physically on the second occasion of the signing, not the first. It was put to him[54]
On the first occasion you told her, “If you don’t sign, don’t bother coming back to get [E]”? --- No, that’s not true.
You told her, “I will tell the kids you had an affair and what a slut you are and then see if they want to stay with you,” all in relation to the first time? --- No, that’s not true.
When she questioned you about it you said, “If you don’t sign, you’ll get nothing and I’ll make sure you never see [E] either”? --- No, that’s not true.
[53] 5 August 2008, Transcript, 153
[54] 5 August 2008, Transcript 155
While I am prepared to accept that at the relevant time the mother was in a highly emotional state I do not accept that the retention of E by the father was a factor in the mother’s signing the consent orders. The orders, among other things, provided for E to move between the parents on a regular basis. The mother failed to report the “blackmail” either to her sister or to the Justice of the Peace who witnessed the signature. There is at least some doubt that E was in the husband’s care on the first occasion. The demeanour of the witnesses in cross-examination leads me to conclude that the allegation by the mother is either a misconstruction of the events at the time or alternatively an ex post facto reconstruction of the event. Again I do not suggest that the mother in putting the story forward is behaving maliciously but rather that her recollection of events is flawed. This is possibly because of the highly charged emotional environment in which the events occurred affected her ability to recall precisely what happened.
On the basis of the information that the husband had supplied which the wife was not in a position to gainsay, in my opinion, she formed the view that she was unlikely to get anything more than that which was on offer.
Accordingly, although I reject the wife’s assertion of duress, I do accept that the failure by the husband properly to represent the situation in relation to the mortgages and the superannuation constituted a basis upon which a miscarriage of justice would occur if I allowed the orders to remain in place. Accordingly, I propose to set them aside pursuant to the discretion available to the Court under s 79A(1) of the Family Law Act 1975 (Cth).
I have set out the pool of property for division between the parties (this excluded the mortgages or any debt relating thereto).

The contributions of the parties

There can be no doubt that even if the mortgage advances from the husband’s mother are unlikely to be enforced, they constitute on the part of the husband a significant additional contribution to his own contributions from his own exertions.
Equally, the wife over a period had borrowed money from her parents. I accept, however, that this was repaid. There is some advantage to the parties in the loans being made in this way because they were not subject to the commercial interest rates that would have otherwise been applicable. While that constitutes a contribution on her part, in my opinion, the contributions made by the husband principally through his mother’s advances are considerably higher than her contributions.[55]
[55] See Gosper & Gosper (1987) FLC 91-818, 76-160 (per Fogarty J.)

Contributions post separation

The wife has continued to be a significant contributor in respect of the children post separation and the husband argues, although I think unreasonably, that he has been by maintaining the house contributing to its value and that therefore he should have some credit. He was living in the house and I do not think there is any reasonable basis upon which credit should be forthcoming.
In summary, I think the husband’s external contributions as referred to above considerably exceeded those of the wife, their contributions from personal exertion particularly the contributions of the wife as home-maker and parent were for all practical purposes equal or possibly favouring the wife slightly because of her more significant role in caring for the children and post separation the wife’s role for caring for the children (home-making and parenting in that sense) exceeded those of the husband and he should not receive credit for additional money extended on the house.
In my opinion, in summary the husband’s contributions should be seen as being 70 per cent and the wife’s as being 30 per cent.
In coming to the conclusion I have about the disparity in the contributions I am primarily moved by the significance of the contributions made by the husband’s mother. My findings in relation to these contributions have included the fact that they were made by way of loan and also by the fact that interest was payable at least given certain preconditions in respect of each of the advances. I have also found that they should not be regarded as liabilities to the parties because of the fact that they were unlikely to be enforced. That inevitably means that the advances from the husband’s mother must be regarded as significant contributions by or on behalf of the husband. While I accept that the relationship with the parties was of some significant duration and I accept further that it is difficult to compare contributions made some time ago with contributions made more recently (at least as to weight). The significance of these contributions in the development of the assets of the parties cannot be ignored.

Section 75(2) factors

The factors that seem to me to be relevant under s 75(2) of the Family Law Act 1975 (Cth) are the potential recovery of some debt from the estate of the husband’s mother against the husband. For the reasons, I have set out above I do not regard this as being a significant or particularly probable event.
The husband has earned and will continue to earn significantly more than the wife and that should be taken into account. Further the wife is likely to have a longer period of care for the children or at least some of them than the husband.
Finally, the superannuation entitlement of the husband is significantly more than the wife.
These are factors which are not like in kind and hence difficult to weigh and balance but in summary it seems to me they should constitute an adjustment in favour of the wife of 10 per cent or a differential of 20 per cent which is in the overall picture $124,507 approximately and means in my opinion that the net pool of assets should be divided between the parties as to 60 per cent to the husband and 40 per cent to the wife. This means that there is a payment due to her of the sum of $249,014 less the $25,000 she has already received pursuant to the consent orders and less $18,644 the property in her possession. This equals $205,370.
I do not propose to include the superannuation entitlements of the parties in the pool for division between the parties. I have taken account in making an adjustment under s 75(2) the disparity in the entitlement of the parties to superannuation. As no splitting order is sought in relation to superannuation to include the values as set out in the schedule before of the superannuation would to some extent constitute a double-counting in favour of the wife.

Just and equitable

The so called “fourth step”[56] in the consideration of the division of property between the parties involves my consideration as to whether in accordance with the findings that I have made, the result if I were to apply those determinations would be just and equitable. Consistent with the findings I have made, in my opinion the result is just and equitable. Obviously if contrary to my finding and belief the husband is obliged to repay money that is due to his mother’s estate then the situation may not have the same complexion. However, to some extent if that should occur the responsibility therefore rests with the husband. It was open to him to clarify in the course of these proceedings and to pursue with proceedings in another court at a much earlier point what would be the net effect on his mother’s estate of the money that was purportedly due from him. He did not do so. Those who seek equity must, in terms of the old maxim, come with clean hands. In this regard the husband’s hands are, in my opinion, not clean.
[56] See Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144, 78,386 (per Nicholson CJ, Ellis & O’Ryan JJ).
In this matter I regret the delay in delivering judgment.
As appears from earlier in the reasons themselves a number of factors contributed to that delay however I have responsibility for some part of it and I apologise to the parties in relation to my part thereof.
It is important in my view that there should be finality between the parties about questions particularly in relation to property and in this regard I have made orders which require a payment from the husband to the wife in accordance with the values of the properties as they were presented at the time of the conclusion of the hearing.
What constituted a conclusion of the hearing in this matter is a somewhat moveable feast in that there were a number of occasions on which the evidence is for all practical purposes finalised and then re-opened. Nevertheless some time has now elapsed since the matter was last before the Court and accordingly, it is possible that there might have been some variation in the values to be taken into account for the purposes of this judgment. I therefore ensured that the parties received some days’ notice of the fact that I was to deliver a judgment. This was done deliberately on my part to permit the parties, if they wished to do so, to make an application to re-open the matter for the purposes of updating valuations or providing further evidence about other matters that may have been relevant. No such application was made before I delivered judgment.
If the husband is unable or unwilling to comply with the requirement that he make a cash payment in accordance with the primary orders made to the wife then the sale of the property will automatically take account of any shift in the market but the percentages that I have held that the parties should receive as a distribution of property will be taken into account in such a sale.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate:

Date: 23 September 2009

[i]

Terms of Settlement

1.That until further order the child [E] born […]/12/00 live with the mother.
2.That the child spend time with the father as follows:-
(a)On 27 June 2009 from 10am to 5pm;
(b)On 11 July 2009 from 10am to 5pm;
(c)On 25 July 2009 from 12 noon until 5pm on 26 July 2009;
(d)On 8 August 2009 from 12 noon until 5pm on 9 August 2009;
(e)Thereafter
i.every second weekend commencing 21 August 2009, from after school or 3pm Friday to the commencement of school on Monday or 9am.
ii.one half of each school holiday period, being the second half of each school holiday period.

3.That notwithstanding these orders the child shall spend time with her father from 9am to 5pm on Fathers’ Day & with her mother from 9am to 5pm on Mothers’ Day.
4.That the child spend time with the father from 9am to 5pm on 4 October 2009 if she would not otherwise be with him on that day.
5.That the parties shall forthwith do all things necessary to enrol in the ARCK programme at Marymead & both parties complete that programme.
6.Until the commencement of Order 2(e)(i), the time [E] spends with her father may be extended if [E] expresses a wish to extend the time and this wish is communicated to the mother by [E].

[ii]

Minutes of Consent

By Consent it is ordered:

1.That the husband pay to the wife the sum of $25,000.00 (“the payment”) within thirty (30) days of these orders (“the date”).
2.That pursuant to Section 78 of the Family Law Act 1975 and upon the husband paying to the wife the payment the husband be declared to have the sole right, title and interest in the real property situate at and known as [the former matrimonial home] in the Australian Capital Territory being the whole of the land more particularly described in Certificate of Title […] (hereinafter referred to as the “the real property”);

3.That contemporaneously with orders 1 and 2 being effected by the parties pursuant to the orders contained herein the husband indemnify the wife as follows:-
3.1.against all payment and liability pursuant to the mortgage registered No. […] to the Bendigo Bank (“the Mortgage”) and all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
3.2.against all payment and liability pursuant to all or any loans or mortgages registered or unregistered in favour of [the husband’s mother].

4.That in default of the payment on or before the date the real property be sold altogether out of Court (“the sale”) and that the husband do all acts and things and sign all necessary documents to effect a sale of the real property and by way of a consequential arrangement that shall be made for the purpose off [sic] effecting a sale:
4.1.The listing price for the real property shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Real Estate Australian Capital Territory.
4.2.The real property shall be listed for sale by private treaty with a real estate agent to be agreed to by the parties.
4.3.In the event that the real property has not been sold by or before a date three (3) months from the date of default of the payment then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the real property upon the following terms:
4.3.1.the auctioneer shall be as recommended by the said real estate agent,
4.3.2.the auction shall take place within three (3) months after the deadline date for sale by private treaty;
4.3.3.the reserve price shall unless agreed by the parties be as proposed by the auctioneer;
4.3.4.the husband and wife shall each pay and be responsible for payment of one half of auction expenses payable before the real property is auctioned;
4.3.5.in the event that the property is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the husband and the wife shall do all acts and sign all necessary documents and shall pay all moneys equally as necessary to procure a second auction within a further five (5) weeks of that date otherwise upon the same terms and conditions as applies to the first auction.

5.Upon completion of the sale of the real property the proceeds of the sale be applied as follows:
5.1.firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;
5.2.secondly to discharge the mortgage and any other encumbrances affecting the real property;
5.3.thirdly so much of the payment as is then outstanding together with interest thereon at the market rate adjusted monthly from the date to the date of settlement of the sale of the real property;
5.4.fourthly, the balance to the husband.

6.That pending the payment or completion of the sale;
6.1.the husband have the sole right to occupy the real property and that during such right off [sic] occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like approportionable outgoings of the real property as they fall due;
6.2.the parties hold their respective interests in the real property upon trust pursuant to these orders;
6.3.the husband not encumber the real property without the consent of the wife.

7.That liberty be reserved to either party to apply with respect to the terms and conditions of an execution of the sale.
8.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these orders or any subsequent order:
8.1.each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders and that the furniture, personal possessions, and like chattels in the real property be divided by agreement between the parties;
8.2.monies standing to the credit of the parties in any Bank account or in any account in any financial institution are to become the property of the party in whose name such account is held;
8.3.each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
8.4.all insurance policies to become the sole property of the beneficiary named therein;
8.5.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

9.That in the event that the husband refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs 4 and 5 of this order:
9.1.the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all deeds and or instruments in the name of the husband and do all acts or things necessary to give validity and operation to the deeds and or instruments;
9.2.the husband is ordered to pay all reasonable solicitor/client costs incurred by the wife for the purpose of enforcing this order, to be taxed and if not agreed;

10.THE COURT NOTES that pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
11.That the parties have equal shared parental responsibility in respect of all long term issues relating to the children of the marriage namely [S] born […] May 1992, [B] born […] May 1992 and [E] born […] December 2000.
12.That the children live with the husband as follows:-
12.1.In alternating seven (7) day cycles with the changeover to be at 5.00pm each Sunday or as otherwise agreed to by the parties.
12.2.For half of each school holiday period and in the absence of agreement between the parties for the first half in even years and the second half in odd years and to alternate thereafter.
12.3.Reasonable telephone communications.
12.4.At such other times and dates as agreed to by the parties.

13.That the children live with the wife at all other times.
14.That whilst the children are in the husband’s care and control the children are to have reasonable telephone communications with the wife.

[2009] FamCA 920

23 September 2009

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Consent

Remedies

Fiduciary Duty

Ownership	Description	Wife’s Value
Husband	Matrimonial home	$850,000
Wife	St George shares	$5,233
Wife	CBA savings	$163
Wife	ANZ savings	$248
Husband	Volkswagen	Nil
Wife	Toyota Corolla	$13,000
Total	$868,644