JAT and MJT - [2004] FMCAfam 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAT & MJT

[2004] FMCAfam 691

FAMILY LAW – Children – residence – competing applications – where father proposed shared equal residence – parties poor communicators – prior to separation mother primary care-giver – shared but not equal residence ordered – property – section 75(2) adjustment.

Family Law Act 1975 (Cth), ss.60, 62, 65, 68, 75, 79, 106A
Child Support (Assessment) Act 1989 (Cth)

In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877

B and B Family Law Reform Act (1997) FLC 92-755
Tomasetti (2002) FLC 92-032

Applicant:

JAT

Respondent:

MJT

File No:

PAM2711 of 2004

Delivered on:

7 December 2004

Delivered at:

Parramatta

Hearing dates:

17 & 18 November 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr R. Batley

Solicitors for the Applicant:

Bradfield Anderson Solicitors

Counsel for the Respondent:

Mr S. Cairns

Respondent:

In person

ORDERS

The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the said children Emma (not her real name) born in 1997 and Stephen (not her real name) born in 2000.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
Other than when the children are living with the father, they shall live with the mother.
The said children shall live with the father as follows:
(a)From after school Friday to the start of school Tuesday each alternate week.
(b)From after school until 7 pm each alternate Monday in the week following a weekend when the children have lived with the mother.
(c)For the whole of the end of term 1 school holidays.
(d)For one half of the June/July school holidays. In the event the parties are unable to agree as to which half it shall be the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(e)For the whole of the September/October school holidays.
(f)For one half of the gazetted New South Wales Christmas school holidays. In the event the parties are unable to agree as to which half it shall be the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(g)In the event the mother and children are in Sydney on Christmas Day, in the years when the children are in their mother’s care for the first half of the Christmas Holidays from 3 pm Christmas Day until 5 pm Boxing Day.
(h)On the children’s birthdays as follows:
(i)If the birthdays fall on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on their birthday until the start of school the next day.
(ii)If the birthdays fall on a weekend when the children are in their mother’s care for four hours from 9 am to 1 pm.
(i)In the event that Father’s Day falls on a weekend when the children are in their mother’s care, from after school Friday until the start of school Monday.
(j)By telephone at all reasonable times.
(k)At such other times as agreed between the parties.
Weekend and Monday evening residence is suspended during school holidays.
Unless otherwise defined in these orders school holiday arrangements shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After each school holidays, the father’s alternate weekend residence shall resume on the first weekend after school has resumed if the children have been in the mothers care during the first half of the holidays AND on the second weekend after school has resumed if the children have been in her care during the second half of the holidays.
If the father’s residence period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
During periods when the children are on block holiday care with the father the mother shall have reasonable telephone contact with the children.
In those years when the children are in the father’s care for the first half of the Christmas school holidays, in the event he is in Sydney the children shall return to the mother from 3 pm Christmas Day until 5 pm Boxing Day.
In the event that Mother’s Day falls on a weekend when the children live with the father, the father’s residence order is suspended that weekend.
Unless the father’s residence periods start or end at school for the purpose of changeover the mother or her nominee shall deliver the children to the father at his home at the commencement of block periods of residence and the father or his nominee shall return the children to the mother at the end of his residence periods.
Neither party shall enrol the children in a continuing activity that requires the children to attend that activity during periods when the children are in the other party’s care unless both parents agree that the children should participate in it.
Once the children start competition sport, both parties are responsible for ensuring that the children attend that sporting commitment whilst the children are in their respective care.
Each of the parties is entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said children including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health-related treatment being undertaken by the children.
Both parties give each other not less than twenty-one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the children only.
Pursuant to s.62F2 the parties shall attend a post separation counselling to facilitate improved communication between them. This counselling will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court. In the event that the program coordinator requests that the children participate in the program or another associated program the parties shall ensure that the children all appointments made for them.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Within eight weeks of the date of these orders the father shall pay to the mother the sum of three hundred thousand nine hundred and sixty nine dollars ($300,969).
Simultaneously upon compliance by the father with order (22) above the mother shall do all acts and execute all documents as are necessary to transfer to the father the whole of her right, title and interest in the property situate at and known as “the Kurrajong home”.
Simultaneously upon compliance by the mother with order (23) the father shall do all acts and things necessary to release her from any liability pursuant to the St George mortgage secured against the former matrimonial home. In this regard the father shall give the mother a release from the mortgagee or a discharge of the mortgage in registrable form.
In the event the father fails to comply with Order (22) or (24) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate and known as the Kurrajong home to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)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 matrimonial home.
(b)Discharge the mortgage to St George.
(c)Fifty five percent to the mother.
(d)Balance then remaining to the father from which he shall pay the mother $29,723.
In the event that the matrimonial home has not been sold by or before a date six (6) months from the date of these orders then the parties shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:
(a)The auctioneer shall be a real estate agent.
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.
(c)That auction will take place within six months of the father failing to comply with orders (22) & (4).
(d)The sale proceeds shall be distributed in accordance with order 26.
Each party has the right to bid at the auction.
Unless otherwise specified in these orders:
(a)Each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof and insurance policies are deemed to be in the possession of the beneficiary thereof.
(b)Each party is 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.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
Subject to any application that either party wishes to make in relation to costs, all outstanding applications are dismissed.
Any application for costs shall be made by written submissions. Any written submissions shall be provided within twenty-one (21) days, the respondent to which shall provide any written submissions in reply in response within a further 21 days. Submissions to be filed by facsimile to my associate.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena shall collects that subpoenaed material and return it to the owner within seven (7) days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM2711 of 2004

JAT

Applicant

And

MJT

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings for the adjustment of property under s.79 of the Family Law Act 1975 and parenting orders. The parenting orders concern the parties’ two children Emma (not her real name) born in 1997 and Stephen born in 2000 (“the children”).

The applications

JAT (“the mother”) started the proceedings when she filed an application for final orders on 27 May 2004. In his opening addresses, the mother’s counsel outlined her preferred orders. Essentially, she asks that the children live with her and spend each alternate weekend, commencing 3.30 pm Friday until 9.30 am the following Monday with the father. Although the mother preferred a Monday finish for contact, she was not resistant to its continuation until Tuesday morning. During school holidays, the mother proposes that the children spend the Easter school holidays with their father, one week during the June/July school holidays, share equally the Christmas school holidays and have the whole of the September school holidays with him. Additionally, she proposed that the children have Father’s Day with their father and if they are with him on the Mother’s Day weekend, that the children return to her for Mother’s Day. The mother proposed a series of specific issues orders, the effect of which would be that the parties have joint responsibility for the children’s long term care, welfare and development. Changeover as far as possible, she says, should take place at school/preschool. Where changeover occurs during school holiday she proposes that the parties share collection and return from their homes. In his closing address, the mother’s counsel submitted that the court would adjust the parties’ property interests – 60-65% to the mother and the balance to the father. The mother agreed that the father should have a reasonable opportunity to acquire her interest in the former matrimonial home and, if he was unable to do so, only then should it be sold.
MJT (“the father”) filed his response on 27 October 2004. The orders he proposed are set out in his response. Essentially, the father proposed that the parties divide the children’s time equally so that the children spend half of each holiday with each parent and change residence at 3.30 pm each Friday. He adopted a similar approach to the mother’s concerning special occasions and specific issues. If his shared residence application succeeded, the father proposed that the court order a 55 % adjustment of property in his favour. He adopted a sliding scale so that if the children resided with the mother eight days compared to his six, he contends for a 50:50 distribution of the matrimonial assets. If it is ordered nine days to the mother and five days to him then the adjustment should be 55 % to the mother and balance to the father. He needs six weeks in order to pay out the mother’s s.79 entitlement.

The hearing

The applicant mother relied upon the following evidence:
·Her affidavit sworn and filed 15 November 2004 and her oral testimony.
·Her financial statement filed 27 May 2004.
·Affidavit of her partner SH sworn and filed 15 November 2004 and his oral testimony.
The respondent father relied upon the following evidence:
·His affidavits sworn and filed 27 October 2004, 12 November 2004 and his oral testimony.
·His financial statement sworn 26 October 2004 and filed 27 October 2004.
·His father RT’s affidavit sworn 20 October 2004 and filed 27 October 2004. This witness was not required for cross-examination.
·His mother MT’s affidavit sworn 25 October 2004 and filed 27 October 2004 and her oral testimony.
·The mother’s father DKJ’s affidavit sworn 20 October 2004 and filed 27 October 2004 and his oral testimony.
·The maternal grandmother, MJ’s affidavit sworn 20 October 2004 and filed 27 October 2004 and her oral testimony.
Both parties tendered documents that became exhibits.
Pursuant to s.62G(2) of the Family Law Act 1975 the court ordered that a family report be prepared. The parties, the maternal grandmother, the mother’s partner and the children attended the counsellor on 19 October 2004. Court Counsellor Julie-Anne Greenfield’s report was released on 11 November 2004[1]. The court counsellor concluded her report with the following recommendation:
[1] Exhibit E
That an order for residence/residence be made in preference to a residence/contact order.
That the father have the children in his care for a five night block out of every fourteen nights (Thursday afternoon until Tuesday morning every second week is suggested).
That hand overs take place at the school/preschool.
The court counsellor was cross-examined. At the conclusion of her evidence her recommendation remained as set out in her report.

The issues

The principle issues raised in the proceedings are these:
·The parties capacity to cooperatively implement an effective equal shared residence living arrangement for the children.
·The significance of the mother’s primary care of the children prior to separation.
·Whether the parties’ poor communication is likely to improve. If not, whether equal shared residence is unduly onerous for the children.
·Whether shared residence is necessary in order to ensure that the children’s grandparents are significantly involved in their lives.
·What s.75(2) adjustment, if any, should be made in the mother’s favour.

Short history

The father was born in 1965 and is 38 years old.
The mother was born in1968 and is 36 years old.
The father joined the Army Reserve in 1985 and has been a member continuously since then.
The father joined the New South Wales Police Force in 1987. The parties met when the mother joined the New South Wales Police Force in 1989.
Upon their marriage in May 1994 the parties commenced cohabitation. They lived in rented accommodation at Riverstone.
The parties purchased a family home in Kurrajong, “the Kurrajong home” in early 1997.
Emma was born shortly after they moved into the former matrimonial home. The mother worked full time until Emma’s birth. She then took eight months maternity leave. When Emma was eight months old the mother returned to work part time, working two days a week at Wetherill Park Police Station. The mother’s mother cared for Emma in their home whilst the mother was at work. When Emma turned 2, she commenced childcare one day a week. The mother increased her part time work, so that she worked five days a fortnight. The mother’s mother continued to care for Emma on Wednesdays and Thursdays each week. The mother worked part time until Emma was two and a half years old, at which time the mother resumed full time employment. Working full time meant that she worked four days each week. The maternal grandmother cared for Emma two days a week and the other two days she was in childcare.
Because the mother found the travel to work and delivering Emma to and from her mother and childcare exhausting, in April 2000 she transferred to another Police Station. She worked at this Police Station until Stephen’s birth in August 2000. The father was not involved in these child care arrangements and responsibility for running Emma about fell entirely on the mother.
After Stephen’s birth the mother took eight months maternity leave.
In November 2000 the father took twelve months leave from the Police Force and joined the Australian Army full time. During this period he was based at Holsworthy Army Barracks until he participated in the Australian Army peacekeeping mission in East Timor. He returned from East Timor in November 2001, having completed a six-month tour of duty.

In May 2003 the mother commenced a relationship with SH. After attending counselling, the parties separated on 24 June 2003. Although separated, the parties continued to live in the home. The father lived in the home with the children whilst the mother was at work and she did the same whilst he was at work.
On 17 July 2003 the mother returned to work full time. The parties organised their shifts so that they worked opposite shifts and between them cared for the children. This arrangement continued until 1 September 2003 when the mother left the home and commenced living with SH. The mother rented a property at Richmond where she still lives.
After their separation the father sent the mother numerous SMS messages, the contents of which were offensive and belittling. Notwithstanding her e-mailed requests asking that he stop, he continued.
On 23 June 2004 an interim apprehended violence order, for the mother’s protection from the father was made at Blacktown Local Court. The father is defending the application and it is listed for hearing on 16 February 2005.

The mother’s circumstances

The mother resides with her partner SH in a rented home at Richmond. SH is a detective with the New South Wales Police Force. The mother is a police officer who recently transferred from her position as a full time licensing officer to a part time intelligence position. In her part time position she works 28 hours per week. Unlike the licensing position, the intelligence position is predominantly day work. In both positions, the mother is able to write her own roster. The advantage of her current position is that she will usually have greater control on when she works and she is far more able to ensure that she works while the children are at school or with their father. In her current position the children will not need to be in childcare. When Stephen is with her even now he does not attend childcare.
SH has two children, JH born in 1998 and LH born in 2001. He and his former wife have a shared arrangement which involves his children being in his care Friday, Saturday, Sunday and Monday week one and Sunday, Monday of week two. Presently, he and his former wife are involved in family law proceedings with both of them seeking to change the existing arrangements. SH proposes that the children live with him and have alternate weekend and half school holiday contact to their mother. His wife proposes that the children live with her and have four days in fourteen with their father.
The mother is alienated from her parents. Her older brother resides in Queensland and appears to have tried to bring about a rapprochement between his sister and parents. When the mother’s parents gave evidence neither even glanced in her direction. Having giving their evidence both remained in the courtroom and sat with the father. Although they claim that they love their daughter, believe she is a good mother and desire to bring the current impasse to an end, there was no sign in either of them that this is likely to happen. Both referred to the mother’s partner as “the boyfriend” and neither is prepared to even meet him. Emma is aware of the difficulties in her mother’s relationship with her parents. The mother’s parents are strongly aligned with the father and believe that he has been deeply wronged by their daughter’s decision to end the marriage.

The father’s circumstances

The father is a serving member of the New South Police Force and the Australian Army. He works full time in the Police Force and presently has restricted his army reserve duty. The father works twelve hour shifts and when he is unable to care for the children, is assisted by the maternal grandmother and occasionally his parents. The father believes that he can make arrangements with his commander so that if the existing equal shared residence arrangement continues he could complete his work during times when the children are in their mother’s care or at school. Notwithstanding his evidence that this is a possibility, the reality is that since separation he has needed the assistance of others in order to care for the children while he is at work. Army Reserve commitments, at a minimum, include a two week compulsory exercise during which the children would need to be cared for by other people.
The father believes that the parties should continue a 50:50 shared parenting arrangement. Although he agrees that until separation the mother was predominantly responsible for the children’s care and that he was often absent for prolonged periods on either army or police work, he believes in the period since separation he has demonstrated a capacity to competently care for the children and that long term his proposals meet the children’s best interests. The father does not consider the parties’ inability to communicate about the children as an impediment to a shared parenting arrangement. He agrees that relations are strained and that communication has continued to deteriorate since separation. Whilst initially the parties were able to communicate orally, this reduced to SMS, letter and later e-mail correspondence. Both he and the mother have initiated internal police investigations concerning the apprehended violence proceedings and the father disputes the mother’s claim that she needs an apprehended violence order in order to stop him sending her inappropriate communications.
The father wishes to acquire the mother’s interest in the family home. If he cannot afford to do so he plans to invest his money and rent a house close to the children’s school and where the mother resides. If he is unsuccessful in his application for shared residence he may move closer to the beach, which means he would live a considerable distance from the mother and the children. Concerning the mother’s proposal that the children have regular block holidays with him during school holidays, the father agrees that he is able to organise his work and Army Reserve commitments and be available for the children.

Relevant law – parenting application

In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed: B and B: Family Law Reform Act (1997) FLC 92-755. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular contact carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation should consider. There is a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (supra). In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s.1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[2] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[3] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[4] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[5]
[2] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.
[3] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.
[4] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[5] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4^th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters, the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.

Determining the children’s best interests

It is apparent that prior to separation that the mother was primarily responsible for the children’s care. The father helped out as much as he could, but the demands on his time from work and Army Reserve necessarily substantially limited the time he had available with the children.
In his affidavit the father gives a detailed account of his involvement in the children’s lives. He gives a clear and cogent account of concerned and capable involvement in the children’s care when he was available. His police duty regularly involved twelve-hour shifts and his Army Reserve duty, for example, in the year prior to separation, involved one hundred days attendance. In the lead up to the Sydney Olympics he was attached to the operations unit of the State Protection Group. Preparation for the Olympics and protection duties during the Olympic games continued for about three months, in the period immediately following Stephen’s birth. He worked long days and many weekends, during the period he was rarely at home other than to sleep. After the Olympics, the father took up a full time army position, which required him to travel to and from Holsworthy each day. When travel time to and from work is taken into account he worked long days and had little time with the children. He was then deployed to East Timor. Upon his return the father took four months leave from both the army and police and cared for the children whilst the mother was at work. When the father returned to work with the New South Wales Police, he returned to Mt Druitt. He returned to Mt Druitt because it was much closer to home than Sydney where the State Protection Group was located. At Mt Druitt he worked a four day block, two twelve hour day shifts from 6 am until 6 pm, followed by two twelve hour night shifts from 6 pm to 6 am and then six days off. When the mother returned to full time work, the father arranged a permanent rest day on Mondays. The children were in daycare on Tuesdays, cared for by their maternal grandmother Wednesday and Thursday and daycare on Friday. During the six days gap between shifts, the father attended Army Reserve. Prior to separation, this was the greatest involvement the father had in the children’s care.
When the parties started their family it appears they decided that the children should enjoy all the benefits that derived from a parent’s substantial care. Thus, the mother adjusted her working hours, taking maternity leave and working part time. The father took primary responsibility for financially supporting the family, working full time in the Police Force and extensively with the Army Reserve. Thus, not only was the mother primarily responsible for the children’s actual care, but also responsible for making most of the day to day parenting decisions that needed to be taken. The father recognised her obviously competent, child focussed parenting style and comfortably left the mother to make the daily decisions for both of them. Whilst the father gives a detailed account of his involvement with the children, he does so in a way that appears to mask the far greater role that the mother undertook. That this was so is clear from his ready concession that the mother was primarily responsible for the children’s care prior to separation. Consequently, from their mother more than any other person, the children derived their sense of security and stability. This follows from my assessment of the substantially greater time that she was actually responsible for their care and the quality of parenting that she gave the children. To a greater degree than any other person, she has provided the foundations upon which the children’s relationships, attachments and emotional wellbeing have been established.
The court counsellor investigated the children’s attachments, wishes and general adjustment. These included individual sessions with the children as well as observations of them with their parents and other significant people. Reporting on the children, the court counsellor said, “Stephen, at 4 years of age, is a confident little boy. When asked his age he replied “soon I’ll be bigger than Emma”. When asked who was in his family, “Daddy, mummy, Big Dad (mother’s partner) and Emma”. He nominated Big Dad as his favourite because he’s my friend”. He described playing monsters with his father and declared it was good when Nana comes to his house. He said he sleeps on Daddy’s bed ‘cause he lets me – I cry ‘cause I want to go in Daddy’s bed to sleep in”. By contrast he is only allowed in his mother’s bed in the morning. When asked what he likes about mummy’s house, Stephen replied, “Big Dad, Jacob and Lily”. Then he volunteered that Jacob’s mummy doesn’t like mummy and big dad. Seven year old Emma nominated her family as her mother, father and Stephen. She nominated her mother as her favourite person. She was unable to elaborate on what she liked to do with her mother. Sometimes she liked to play with her. She was clearer about the play times with her father, describing the “Monsters game in graphic detail. When asked who she liked to tuck her in at night, Emma nominated, “Both (parents)”. She also likes both parents to help her with her bath. She prefers her mother to look after her when she is sick. Emma worries about her mother, although she was unable to say why. She does not worry about her father. She would like to give both of her parents a nice present. Emma nominated both mum’s house and dad’s house as the most fun. Emma thinks it is possible that her parents might get back together. Emma was positive about her mother’s partner SH, saying that she liked to climb on him, walk up his legs and flip over. Emma is aware that her mother and grandmother are not good friends”.

The court counsellor’s observations of the children with each of their parents corroborated her impression that the children are attached to both their parents and that both parents have good parenting capacity. During the period that she observed the children with their father the observation indicated normal, happy family relations. She reports, “Stephen suggested that the family members enact a role reversal, with the father as the kid and the children as parents. Much of the observation consisted of Emma issuing orders to her father. The most surprising observation was that Emma was quite loud and extremely assertive in the playroom, a very different presentation from her interview. Observing the children with the mother re-enforced the counsellor’s opinion that Emma needs proximity to her mother and a continuation of her mother’s primary care. She reports, “When the mother entered the playroom the room became much quieter. The children remained industrious, but the energy level in the room fell noticeably. Emma asked her mother why she was tired, and the mother replied that it had been a long day. Emma asked her mother to join her in drawing on the whiteboard. The three family members drew a collaborative drawing. The mother made suggestions in a soft voice. A few minutes later found the mother and children seated at a small table with Emma explaining the rules of UNO to her mother. Stephen was at the same table playing Connect 4 with this mother. Stephen ran up to SH when he entered the room. SH lifted Stephen in his arms and carried him around for a couple of minutes. Stephen happily complied. When the games resumed, the energy levels in the room rose with SH’s presence. Later JAT revealed that she was feeling unwell”.
The court counsellor concluded the children have made a good adjustment to the separation. She was concerned that the father would be upset by her opinion that the children enjoy their relationship with SH. The court counsellor concluded, “From a parental relationship point of view, the children would do equally well in either household.” Turning her mind to the father’s shared parenting proposal, the court counsellor said that this was inconsistent with Emma’s need for closeness with her mother. Essentially, because of the mother’s previous primary carer role and Emma’s need for closeness to her mother, that the children needed more time with their mother than the father’s arrangement provided. In this respect I agree with the court counsellor’s opinion and give this aspect considerable weight. I am satisfied that the court counsellor’s opinion about the quality of the children’s relationships and their adjustments generally is accurate. Having accepted these opinions, which were not the subject of meaningful challenge, I am satisfied that the general thrust of her report should be given effect to. The issue for me is whether the mother’s proposal whereby the father takes additional time during school holidays or shares it more extensively during school term is most likely to work long term.
The court counsellor commented, “Shared care is usually contraindicated in the absence of a cooperative relationship between the parents. With an AVO pending and conflictual hand overs this can hardly be described as a cooperative relationship. However, the mother is either realistic enough (with her other commitments) or generous enough, to be offering the father an extended block of four night contact every fortnight. This suggests that there is scope for cooperation, once the after shocks of the family changes subside”. Both parents advised the court counsellor that contact between them is not advisable and adopted her suggestion that for the time being hand overs at school and preschool are desirable as this would minimise the children being exposed to conflict between the parents. I agree with this approach. However, I am concerned about the impact on the children of their parents’ inability to effectively discuss and problem solve matters concerning the children. Both parents’ affidavits are replete with copies of e-mails, details of SMS messages and communications through other intermediaries about the children. By only using SMS messages, e-mails and intermediaries, the parties have created potentially serious problems for the children. For example, there are instances when messages were not immediately received and when one or other did not know where to collect the children, where one did not know whether the other was collecting the children from school or preschool, indeed where the children were, what treatments a child was receiving and instructions in relation to having stitches removed. To identify but a few. Emma and Stephen are not old enough to fill the communication gap and communicate between their parents on their parents’ behalf. At their ages, these children need their parents to communicate effectively if an equal shared parenting arrangement during school term is to be successfully implemented. Without good communication, there will be uncertainty about who is taking Emma to ballet and dance presentations, similar problems will arise with Stephen when he starts after school activities. There will be unresolved disputes about who will care for a sick child on a school day if changeover is due to take place before or after school. With respect, I consider the court counsellor misunderstood the extent of these parties’ inability to communicate and the practical ramifications of it. My assessment is that the parties’ inability to communicate is profound and continues to deteriorate rather than show signs of improvement. The probability is that poor communication will continue for a considerable period of time. At the end of the hearing, in an attempt to help the parties’ pull back from further litigation, namely the outstanding domestic violence proceedings, I raised the possibility that the court make injunctions to the same effect as a domestic violence order. This was further litigation could be avoided and there would be no difficulty for either party in the police force. The mother was willing to proceed down this path, however, the father was unwilling. I thought it surprising that the father’s case appeared to so strongly focus on the mother’s domestic violence allegations and so little time was spent on other matters more directly related to the children. This demonstrated that even where sensible compromise is proffered it is elusive.
Examined from the children’s perspective, the ramifications of their parent’s poor communication are less troubling, if there are clearly delineated times and functions. By this I mean if the father’s time is predominantly during block periods of holidays interspersed with regular but not so extensive time during school term, he can be clearly and more exclusively responsible for the children during holidays and the mother more clearly and exclusively responsible for the children during school term. Where both need to be extensively involved with each other in order to maintain a consistent routine in a particular activity, for example, managing the children’s care around school, the ramifications of poor communication become much more concerning. The effect of this is that as a general approach, the mother’s proposals better addresses the ramifications of the parties’ poor communication than the father’s. However, I am concerned about the effect on the children of regular and long gaps in their contact with their father. During school term they are used to spending gaps of no longer than seven days between regular contact with him. This means the children should spend time with their father each week. The arrangement that is most likely to work long term is one which has the father collecting the children from school on Fridays and returning them to school Tuesday morning one weekend and the following week collecting the children after school Monday and spending a few hours with them. The court counsellor’s five day/eight day recommendation was partly structured to address the parties’ availability and to give the children’s maternal grandmother the opportunity to continue caring for the children on Tuesdays. However, after the family report was completed, the mother’s application for part time work was approved and she is more available to care for the children than the court counsellor understood. The children enjoy a loving relationship with their maternal grandmother and she is strongly attached to them. The maternal grandmother described her relationship with her daughter as “poisonous” and fears that unless she maintains contact with the children whilst they are with their father, she will be unable to see them. Whilst she and the children are used to her involvement in the children’s care, this routine is not essential to the relationship. From the children’s point of view their relationship with their grandmother is not centred on routine, rather upon a reasonable opportunity to spend time with her. This opportunity can be created just as easily during school holidays as during school term. If the maternal grandmother continues her refusal to accept SH it is likely that the current impasse in the mother/daughter relationship will continue. However, the maternal grandmother is strongly attached to the father and I am satisfied that during school term he will create the opportunity for the children to have time with her.
Although at an intellectual level the mother has accepted the mother has accepted the father’s greater involvement in Emma’s school and the children’s social lives, at an emotional level it has taken her time to adjust to it. That is because in the roles that each undertook during the marriage the father identified the primary care of the children as being the mother’s responsibility and hence domain. To some degree the mother is torn between recognising the benefit to the children of the father’s greater involvement in their lives and the additional strain on her managing the practical effects of it. Both parties complain the other does not effectively communicate arrangements made concerning the children and that the process of agreeing to change previously established plans is difficult and stressful. There is no doubt that negotiating any altered arrangement has been extremely difficult. Both parties agree that SMS and e-mail communication is a poor substitute for effective oral discussion and problem solving.
Both parties impressed me as insightful, well-educated and intelligent people. Both have a capacity for introspection and compromise. The difficulty each has is that when it comes to each other their capacity for compromise and reflection is undermined by their personal relationship. Because their communication is difficult and too often ineffective, there is a real possibility that the children will be over-taxed in a shared equal parenting regime. Both parents see themselves as taking responsibility for particular extracurricular activities. The mother particularly promotes Emma’s ballet. The father plans that the children will do swimming and other activities. I was left with the very strong impression that week about living arrangements, or substantial school term shared arrangements would make it even more likely that the children will be overwhelmed by too many activities. This is most likely to wear them down and eventually undermine the children’s wellbeing.
The parties have virtually no capacity to problem solve about matters that they disagree upon. While both desire better communication each blames the other for their difficulties. Whilst there have been moments when the parties have been able to communicate effectively, these have been few. Basically, their general communication style is that they tell the other party what is happening, but make no attempt to try and constructively resolve a dispute, or see the situation from the other person’s point of view. In my opinion effective equal shared parenting as proposed by the father and recommended by the court counsellor requires much more sophisticated communication demonstrated over a considerable period than these parties have been able to achieve.
In a geographical sense the parties will probably live sufficiently close to each other that shared equal parenting would be feasible. This would mean that the children are able to go to school reasonably comfortably from both parents’ homes. While this weighs in favour of the father’s proposal, ultimately it is not a sufficient reason to make orders consistent with his application given the problems inherent in the parties’ poor communication.
Whilst the existing arrangements have enabled the children to adapt to their parents’ separation, the arrangements are unlikely to meet their long-term interests. At this stage of their life, the children’s arrangements are not overly complicated. However, as they get older and in Emma’s case, sooner rather than later, their lives will become more complicated. As the children pursue extra curricular activities and establish individual circles of friends, their interests are best met if their lives are structured around a reasonably settled living arrangement. Whilst some parents manage to organise their children’s commitments even though the children live in different homes, the point of distinction is that those families communicate well.
Subject to the changes I will order, I am satisfied that the arrangements whereby both parents are significantly involved in their children’s lives meet their needs to the greatest degree short term and long term. They have loving relationships with both parents and are happy and healthy. Long term this will ensure that their intellectual, physical and emotional needs are met to a very high level. They will enjoy the best of both of their parents and be undisturbed by their parent’s poor relationship.
Changing residence at school gives the father the opportunity to be directly involved in that part of their lives. Residence changeover for holidays will need to take place at another venue. Usually children have belongings that they wish to take with them and school equipment that needs to be off loaded before holidays commence. Although contact changeover has been fraught, both parties have the capacity to effect changeover without acrimony provided this is not asked of them too frequently.
The parties agree that they should make long term decisions for the children jointly. This maybe difficult for them to achieve, but it is a worthy aspiration and I will order it. In the event they are unable to agree they should consider assistance from a counselling service.
Parenting orders are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally court should make parenting orders that minimise the prospects of future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties to a failed marriage moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. Eighteen months after their separation, these parties are clearly uncomfortable with each other and I cannot confidentially conclude that there will no future litigation. Further litigation will fuel acrimony and undermine such capacity, as these parties may have to let go of the past. To the greatest extent possibly I am satisfied that the court should make orders that will be least likely to involve these parties and children in future litigation. This is what I have tried to achieve.
In order to find a way forward the parties will be ordered to attend further counselling. Although I am not optimistic that this will have a positive outcome I consider it worthwhile trying.

Relevant law - property

The approach to the determination of an application under s. 79 is well established by authority In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595. The process ordinarily involves firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.

Assets and liabilities as at the date of hearing

The parties reached agreement as to the assets, liabilities and their financial resources[6].
[6] Exhibit B
I find the assets, liabilities and financial resources as at the date of hearing are as identified in the table below:

Assets as at the date of hearing	$
The Kurrajong home (J) (agreed)	640,000
IAG shares (F) (agreed)	5,724
Toyota (F) (agreed)	3,500
Ford Laser (M) (agreed)	800
SASS Superannuation (M)	61,446
PSS Superannuation (F) (agreed)	89,744
MS Superannuation (F) (agreed)	6,003
TOTAL ASSETS	807,217
Liabilities as at the date of the hearing
St George mortgage (J) (agreed)	260,000
NETT ASSETS	547,217

The orders I propose will not affect the earning capacity of either party.
The mother has applied to the Child Support Agency for the administrative assessment of child support. Although the father is assessed to pay child support at the rate of $250 per month he has applied for a departure and presently is not paying the assessed amount.
I agree with the parties’ contention that their total contributions and other s.79(4) factors should be assessed as being 55 per cent by the father and 45 per cent by the mother.

Section 75(2)

Subsection (a). The father is 38 years old and in good health. The mother is 36 years old and she too is in good health. I make no adjustment pursuant to the subsection.
Subsection (b). I have already made findings concerning the parties’ property and financial resources and do not repeat them. The father has a well-established career with the New South Wales Police Force and the Australian Army. Presently, the father has a weekly income of $1,324. This is made up of his police salary of $1,268, $6 dividends and $50 per week Army Reserve pay. Since separation the father has limited his Army Reserve duty and consequently his income has fallen. It is probable that he will return to Army Reserve duty reasonably comparable to that which he undertook prior to separation. This means that he is likely to earn an additional $8-10,000 per annum from the Department of Defence. Thus his annual income, from all sources, is likely to be in the vicinity of $75,000. The mother also has a well-established career as a police officer. However, she has taken significant career breaks in order to take care of the children and her career as a consequence of role in the family as home maker and parent has not had the same prominence that the father’s has enjoyed. Working full time she earns an average weekly income of $1,161. Recently, she reduced her working hours so that she could be more available for the children. As a consequence, her average weekly income has fallen to approximately $950. In addition to her earned income the mother receives $16.27 per week child support, which gives her a total income of $962. The father submitted that the mother’s earning capacity is greater than her current income. Basically, that she reduced her hours of employment as a deliberate strategy to minimise the income she is able to earn. I do not accept that she reduced her hours as a ruse; she has made a child focussed decision motivated by the children’s current need. When she resumes full time employment the mother has the capacity to earn an income as a police officer only slightly less to that which the father earns. As a consequence of my decision on the parenting applications it is likely that the father’s child support obligation will increase, which means that the mother’s income will also increase. She may also become entitled to a modest family tax benefit. By virtue of his commitment to the Army Reserve, in the long term the father has the capacity to earn a greater income than the mother. On balance, the father’s greater income warrants an adjustment in the mother’s favour pursuant to the subsection.

Subsection (c). Emma is 7 years old and at school and Stephen is 4 years old and attends daycare. Prior to separation, responsibility for the children fell overwhelmingly on the mother. As a consequence of the parenting orders, the children will live with her more substantially than they will with their father. Substantially, day to day primary responsibility for their care will remain with the mother. Their ages mean that they will be dependent upon her for many years to come. In Clauson the Full Court of the Family Court of Australia said, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails”. Notwithstanding that the mother has a well-established career, it is plain that in the future childcare responsibility will impact upon her career. Notwithstanding that the New South Wales Police Force has a commitment to assist serving officers who are parents by the establishment of family friendly policies, it is likely that the mother’s career will be affected in the manner described in Clauson. I make an adjustment in the mother’s favour pursuant to the subsection.
Subsection (d). This subsection focuses on the financial needs of the parties, including their financial commitment supporting the children. Neither party completed those portions of the financial statement, which sets out their average weekly expenses. However, because the children will live more substantially with the mother she will incur greater costs associated with their care, which in turn considerably reduces her disposable income. Although the father will have considerable costs associated with the costs of caring for the children, overall his day to day necessary expenses for himself and the children are likely to be considerably less than the mother’s. The subsection requires an adjustment in the mother’s favour.
Subsection (e). Other than the children neither party has responsibility to support any other person. I make no adjustment pursuant to this subsection.
Subsection (f). The parties’ superannuation interests have been taken into account under s.79(4). Although it was suggested that the father’s superannuation interest required an adjustment in the mother’s favour, because it has been treated as an asset this would be double counting his interest and lead to a manifest injustice against him. I have already taken into account under subsection (b) the likelihood that the mother will receive a modest family tax benefit. I make no adjustment under this subsection.
Subsection (g). Since separation both parties have maintained a comfortable standard of living, comparable to that which they enjoyed prior to separation. There is no suggestion that the parties are wasteful or extravagant. Although the father has remained in the family home and the mother lives in rented accommodation, this factor has been taken into account under s.79(4) and s.75(2)(d). There are no factors pursuant to subsection (g) that warrant adjustment.
Subsection (h) – (k). These subsections do not arise.
Subsection (l). Notwithstanding their care of the children, both parties are in paid employment. Neither party claims an adjustment pursuant to the subsection. I have already taken into account aspects of the financial consequences of the mother’s future greater care of the children. In the circumstances I make no adjustment pursuant to the subsection.
Subsection (m). The mother has re-partnered and lives with SH. He is a detective in the NSW Police Force. His financial circumstances are not addressed in his affidavit, nor was he asked any questions about his financial position. I infer earns an income at least comparable to that which the father receives. It is likely that he has at least modest superannuation. Whether he owns other assets is not in evidence. The mother and SH consider their relationship permanent and he offers her a degree of financial security. The subsection warrants an adjustment in the father’s favour.
Subsection (n) achieves a cross referencing between s.75(2) and s.79. The outcome of assessment of contribution and other factors has resulted in the mother having 55 per cent of the assets compared to the father’s 45 per cent. This does not warrant further adjustment.
Subsection (na). I have already made findings concerning child support. For so long as he is a salaried wage earner the father is likely to pay child support in the amount assessed. The amount the father will pay as child support in the years ahead is considerable and warrants and adjustment in his favour.
Subsection (o) – (p). There are no circumstances, which warrant further adjustment.
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be an adjustment in the mother’s favour of 10 per cent. This outcome reflects the cumulative findings of the outcomes I have made pursuant to s.75(2). See Tomasetti (2002) FLC 92-032. Any lesser adjustment given the size of the asset pool would be notional.

Section 79(2) is this outcome just and equitable?

Finally, I must consider s.79(2) and whether this is a just and equitable outcome. Because the court must consider the actual orders not just the percentage distribution under s.79(2) justice and equity in cases such as this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process.
I agree with the parties’ position that their s.79(4) factors warrant a

55 per cent to the father and 45 per cent to the mother outcome. I will not repeat the findings made thus far. There are significant matters that lead to my comfortable satisfaction that a further 10 per cent adjustment in the mother’s favour is appropriate. These include that the children will spend significant time with her and that her care of them restricts her career to a far greater extent than the father’s care of the children does. It is likely that the father will pay reasonable child support, however, the payment of child support does not compensate the mother for the financial impact upon her of many years of childcare. In the years that lie ahead the father’s financial security, because of his greater income and earning capacity is more assured than the mothers. However, the mother has re-partnered and SH offers her a degree of financial security, if only through cost sharing, of a type that the father does not have. Both parties have contributed towards superannuation and neither sought a splitting order. In the long term both will have reasonable superannuation.
When I stand back and examine the parties’ circumstances I am satisfied that the outcome 55 per cent to the mother and 45 per cent to the father is just and equitable.

Structure of the orders

The parties agree that the father should have the opportunity to pay out the mother’s s.79 entitlement and that the former matrimonial home should be preserved unless its sale is necessary. Rounded out 55 per cent of $547,217 (nett assets) is $300,969. The mother has assets comprising her car ($800), superannuation ($61,446) giving her total assets worth $62,246. Thus, rounded out the father must pay her $238,723. By way of cross-check the father will have the house worth $640,000, shares worth $5,724, his car worth $3,500 and superannuation worth $95,747, giving him total assets of $744,971, from which the St George mortgage of $260,000 must be deducted. His nett assets are $484,971. Forty five per cent of $547,217 is $246,248. $547,217 minus $246,248 is $300,969.
Although the parties agreed that the father should have six weeks within which to acquire the mother’s interest in the former matrimonial home, as judgment is delivered at the start of the Christmas season I consider this timeframe is tight and may defeat their intention. Accordingly, the father will have an additional two weeks within which to pay out the mother’s entitlement. If he is unable to pay out her entitlement the property will be sold. The parties will have the opportunity to manage the sale by private treaty. However, if the property has not sold by private treaty within three months of its listing then it must be sold by auction.
Although the former matrimonial home as an agreed value, the nett proceeds cannot be known. Upon its sale the parties will incur selling costs. The total assets, excluding the former matrimonial home and mortgage are $167,217. Excluding the former matrimonial home and the mortgage, the father has total assets worth $104,971. He is entitled to $75,248. Therefore on the sale of the former matrimonial home and the father receives his 45 per cent nett share, there will have to be an adjustment in the mother’s favour of $29,723 paid from it. This is the adjusting figure needed to ensure that she receives 55 per cent of the nett property.
The father resides in the former matrimonial home and may continue to do so until he has complied with these orders or the property is sold. Until the home is sold he must pay al insurance, mortgage instalments, rates and taxes upon the property as and when they fall due. The property must be properly maintained. If he defaults, the default must be paid out of his proceeds. This is the price of occupation.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S Mashman

Date: 7 December 2004