Jervis and Band

[2016] FCCA 2549

FEDERAL CIRCUIT COURT OF AUSTRALIA

JERVIS & BAND [2016] FCCA 2549

Catchwords:
FAMILY LAW − Whether the children should spend six or seven days each fortnight with the father − division of property. 

Legislation:

Family Law Act 1975 (Cth), ss.4B, 60CA, 60CC, 61DA, 65DA, 65DAA, 75(2), 79, 90MT(1)(a), 90MT(4)
Family Law (Superannuation) Regulations 2001 (Cth), r.14F, pt.63

Superannuation Industry (Supervision) Regulations 1994 (Cth), rr.7A.03, 7A.05, 7A.11

Applicant: MR JERVIS

Respondent: MS BAND

File Number: DGC 534 of 2015

Judgment of: Judge Phipps

Hearing dates: 27, 28 & 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Dandenong

Delivered on: 4 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Elleray

Counsel for the Applicant: Mr Ham

Solicitors for the Respondent: Hassals Litigation Services

ORDERS

Children

1. That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.

2. That the children live with the mother.

3. That until 1 January 2017 the children spend time and communicate with the father in accordance with orders made 20 May 2015 and 24 September 2015.

4. That commencing 1 January 2017 the children spend time and communicate with the father as follows:

   (a)Each alternate weekend during school terms from after school Friday to before school Monday and in the event that Monday is a non-school day until 4.00pm Monday and each alternate weekend thereafter;

   (b)During school terms each Wednesday from the conclusion of school until the commencement of school Thursday;

   (c)During school terms each alternate Friday from after school until 10.00am Saturday or the end of X’s game;

   (d)For one week of each school term holidays as agreed and if not agreed from 2.30 pm on the first Friday to 4.00pm the following Friday in years with even numbers and from 2.30pm on the second Friday to 4.00pm on the following Friday in years with odd numbers;

   (e)For two weeks during the summer school holidays as agreed and if not agreed two weeks ending four days before the commencement of school in years with even numbers;

   (f)On Christmas Day from 10.00am 25 December to 10.00am 26 December;

   (g)On the children’s birthdays, if they fall on a school day, from 3.30 pm to 8.00pm;

   (h)The children’s birthdays, if they fall on a non-school day as agreed and if not agreed from 3:30pm to 8 00pm;

   (i)On Father’s Day, if not a weekend when the children are spending time with the father, from 6.00pm on Saturday to the start of school on Monday;

   (j)By telephone and electronic means at all reasonable times;

   (k)Otherwise as agreed.

5. That if Mother’s Day falls on a day on which the children would otherwise be spending time with the father the father’s time with the children is suspended from 6.00pm on Saturday to the start of school on Monday.

6. That the mother and the father shall keep the other informed of their current residential address and telephone number.

7. That changeovers which do not take place at school shall be as agreed.

8. That each of the mother and the father are restrained by injunction from denigrating the other party to or in the presence of the children or from permitting any other person to do so.

9. That the mother and the father are, at their own expense, entitled to receive copies of school photographs, reports, circulars and the like and to attend at the children’s school and at school events normally attended by parents but in accordance with the school’s policies and requirements.

Property

1. That the net proceeds of sale of Property M (“the net proceeds”) be divided between the respondent and the applicant as follows:

   (a)Add $55,000 (being the total of the value of property to be retained by each of the applicant and the respondent) to the net proceeds (“the total value”);

   (b)Pay 37½% of the total value minus $22,992 (being the value of property retained by the applicant) to the applicant;

   (c)Pay 62½% of the total value minus $32,008 (being the value of property retained by the respondent) to the respondent.

2. That the respondent holds a superannuation entitlement in the (omitted) Staff Superannuation Scheme (member number (omitted)) of $110,000 as at May 2015.

3. That these orders are binding on the (omitted) Staff Superannuation (“the Trustee”).

4. That a base amount of $33,000 is allocated as required by s.90MT(4) of the Family Law Act 1975 (Cth) (“the Act”), to the applicant out of the respondent’s interest in the (omitted) Staff Superannuation Scheme.

5. That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the respondent’s interest in the (omitted) Staff Superannuation Scheme the applicant is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount specified in the immediately specified paragraph and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

6. That these orders have effect from the operative time.

7. That the operative time for the purposes of these orders is the beginning of the fourth business day after the day on which an original certified copy of the final sealed orders are served on the Trustee.

8. That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the applicant shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request in accordance with r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in his name in the (omitted) Staff Superannuation Scheme.

9. That:

   (a)The value of the transferable benefits to be transferred from the respondents interest to the applicants interest will be calculated by the Trustee in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and

   (b)Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payments from the respondents interest in the (omitted) Staff Superannuation Scheme after the Trustee has created a new interest in the applicants name in the (omitted) Staff Superannuation Scheme as contemplated by paragraph 14 of these orders, are not splittable payments.

10. That until such time as the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant:

    (a)The respondent provide to the applicant no less than twenty-eight (28) days notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the (omitted) Staff Superannuation Scheme;

    (b)The respondent direct and authorise the Trustee to communicate with the applicant and/or any person authorised by him in writing:

    i.To answer any reasonable inquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the (omitted) Staff Superannuation Scheme; and

    ii.To provide to the applicant and/or his authorised representative a copy of any notice of any application or request by the respondent which seeks release of entitlements in the (omitted) Staff Superannuation Scheme in so far as that release may affect the applicant’s entitlement in the (omitted) Staff Superannuation Scheme pursuant to these orders.

    (c)The respondent by herself or her legal personal representative be and hereby are restrained from doing any act or thing which would prevent the applicant, his heirs, executors, administrators or nominees from receiving the benefits in the (omitted) Staff Superannuation Scheme to which he is entitled pursuant to these orders.

11. In the event that the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

12. That unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders;

    (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses in action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the applicant);

    (b)Insurance policies remain the sole property of the owner or beneficiary named therein;

    (c)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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 534 of 2015

MR JERVIS

Father

And

MS BAND

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application concerns both property and children.  The children are X born (omitted) 2004 and Y born (omitted) 2006.

2. Both parties propose an order that they have equal shared parental responsibility for the children.  They propose that the orders remain the same as interim orders made on 20 May 2015 and varied on 24 September 2015.  These provide for the children to live with the mother and spend time with the father;

   a)On alternate weekends from the conclusion of school on Friday until the commencement of school on Monday and in the event that Monday is a non-school day, until 4.00pm;

   b)Each Wednesday from the conclusion of school until the commencement of school Thursday during school term;

   c)Two periods in the long summer holidays, 25 December 2015 until 3 January 2016 and 12 January 2016 to 22 January 2016;

   d)Reasonable telephone communication;

   e)Otherwise as agreed in writing.

3. From the commencement of 2017 the father proposes that the children spend equal time with him, from Friday to Friday in alternate weeks, a week of term school holidays, two weeks in the summer holidays and on the various special occasions.

4. The mother proposes that the children live with her and spend time with the father:

   a)Each alternate week from after school Friday to before school Monday;

   b)Each Wednesday from the conclusion of school until the commencement of school Thursday;

   c)Each alternate week from after school Friday until 10 00am Saturday or the end of X’s game;

   d)One week during school term holidays;

   e)Two weeks in the summer holidays concluding four days before the end of the holidays.

5. The family consultant, Ms G, in her report recommended equal time between the parents.  When the mother’s proposal was put to Ms G she said that she was not concerned whether it was six or seven nights but it should be in a block.  The mother proposes that if there is block time it should be five nights.

6. For property the applicant proposes that the property be divided 65% to him and 45% to the respondent.  The respondent proposes the property be divided 75% to her and 25% to the applicant.  The respondent proposes that the applicant be allocated $30,000 of her superannuation.

7. The parties’ property and values are mostly agreed.  The respondent’s outline of case proposes that the net proceeds of the sale of Property A be included as an asset owned by the applicant.  The applicant sold this property and the evidence shows that after payment of the mortgage the net proceeds were used to reduce a business loan which is now described in the parties’ outlines of case as the supplementary home loan.  The applicant has not retained any of the proceeds of the sale.

8. Each party includes furniture and personal property in their financial statements.  The applicant values his at $3,000 and the respondent hers at $2,500.  Neither has a professional valuation.  Neither party suggests any of the items are in anyway unusual so that they have a particular value.  None of it is likely to be easily saleable.  Since the values are roughly the same they cancel each other out and I will not include them.  Each party received an amount of $8,741 from the proceeds of sale of cattle.  The parties include savings held by each.  The $8,741 has been spent on living expenses or is the source of some of the savings.  I will not include the net proceeds of sale.  The respondent includes in her list of assets an amount of $17,500 as net proceeds of sale of a caravan received by the applicant.  Again, this has been spent on living expenses or is some of the savings.  I will not include it in the property.

9. The respondent includes $450 as the value of the applicant’s guns.  The applicant sold the guns for $450.  That amount has either been spent or is in the savings.

10. The respondent includes in her liabilities her income tax of $400 and her (omitted) Visa credit card $3,500.  These are post separation liabilities.  I will not include them.  The applicant includes two loans, $1,491 for a (omitted) business course where he pays $638.39 a month from his business account.  The other is $1,320 for X’s orthodontics for which he is paying $220 per month from his personal account or credit card.  The account for the child’s orthodontics is after separation.  The applicant does not say when the loan from the business course was taken out but he refers to it in an affidavit of 20 April 2016 and he says that these are a liability is not in his financial statement of 1 April 2016.  I infer that this loan was taken out after separation.  I will not include either loan.

11. At the time of the hearing the former home at Property M had not been sold.  An order made on 29 April 2016 provides for its sale.  The valuation of the house is about $750,000.  I will make orders on the basis that the house has been sold and the net proceeds are to be divided.

12. The property:

Asset	Ownership	Value
Property M	Joint	$750,000
Holden (omitted)	Applicant	$    2,000
Land Rover (omitted)	Applicant	$    1,650
(business omitted) Pty Ltd	Applicant	$    2,000
Savings	Applicant	$  11,642
Savings	Respondent	$  10,500
(omitted) shares	Respondent	$  21,508
Excavator	Applicant	$    5,000
Metal detectors	Applicant	$      700
Total	$805,000
Liabilities	With whom	Amount
Mortgage	Joint	$185,000
Supplementary loan	Joint	$  45,695
Superannuation	Ownership	Value
(omitted)	Respondent	$  99,270
(omitted)	Respondent	$  27,000
Total	Respondent	$126,270

1. The net value of the non-superannuation property is $574,305.  The total of superannuation is $126,270.  The net value of the non-superannuation property may vary depending upon the sale price the parties obtain.

2. Leaving aside the former home the value of property held by the applicant is $22,292 and by the respondent $32,008.

Children

1. The father, born on (omitted) 1974, is 41.  The mother, born on (omitted) 1968, is 47.  They commenced living together in (omitted) 1998, did not marry and separated in October 2012 or possibly sometime after that date.  In October 2012 the father commenced sleeping in the garage of their home and then in March 2013 moved into a caravan close to the house.  He continued to use the facilities in the house and eat in the house.  While he was in the garage there were occasions when the mother slept out there with him.

2. The father left the property on 18 March 2014.  A police officer applied for a family violence intervention order naming the father as the respondent and the mother as the affected family member.  The father was present when the order was made and consented to the order without admission.  The order prohibited him from approaching or remaining within Property M.  It provided that he would not breach the order if he attended on 18 March 2014 and after that, subject to approval by the mother, to collect the caravan and trailer, collect firewood on any day during daylight hours, collect and return tools of trade to use in his occupation or to maintain the property.

3. After the father left the property the children remained living with the mother and spent time with the father Friday night on one weekend and from Friday night to Monday morning the following weekend.  The children spent half of each school holidays with each parent.

4. The parties’ affidavits contain details of a number of incidents and allegations about the other’s behaviour. To some extent they were explored at the hearing. Each acknowledges behaviour which comes within the definition of family violence in s.4B of the Family Law Act 1975 (Cth). Neither acknowledges that the behaviour was as serious as the other party alleges. The mother’s description of events which led to the family violence intervention order includes serious allegations of physical violence by the father towards the mother. The father denies the seriousness but acknowledges that he did push her. Each obtained a family violence intervention order against the other, both of which have now come to an end.

5. The family consultant’s report contains a summary of the parties allegations and concessions about their behaviour:

   Both parents have raised concerns regarding family violence during the relationship and post separation.  Both parents concede that the parents engaged in verbal and emotional abuse throughout the relationship.  According to Mr Jervis, he found Ms Band’s ongoing denigration of him and his family are unbearable and identified that this had a significant impact on his mental health and led to his decision to end the relationship.

   According to Mr Jervis, upon ending the relationship, Ms Band’s verbal, emotional and physical abuse of him increased.  He reported that must be the physically assaulted him by pushing him, hitting him including assaulting him in a public place.  He stated that Ms Band’s verbal and emotional abuse of him increased further when he entered a new relationship and in the presence of the children would tell him that he no longer had time for the children “because you’re too busy fucking girlfriend”.

   Ms Band concedes that she was verbally and emotionally abusive towards Mr Jervis.  She claims that their verbal abuse was mutual and tended to minimise the impact that this had on the children.  Furthermore, she tended to minimise her angry rages, justifying behaviour by stating that Mr Band made her angry by ending the relationship and entering a new relationship.

   Ms Band's (omitted) upon the impact Mr Jervis behaviour had upon her and the children.  She stated she experienced emotional difficulties following the separation and found it difficult that Mr Jervis had entered a new relationship.  Ms Band’s emphasised the children felt uncomfortable in the presence of Mr Jervis previous partner Ms E highlighting that the children were emotionally and physically collected while in the the care of their father and Ms E.

6. Ms G concludes that the conflict between the parents seem to have dissipated since the making of orders in September 2014 and the father ending the relationship with his partner Ms E.  Ms G says that the current five nights per fortnight with the father appears to be meeting the children’s needs.  She notes that neither parent has raised safety concern for the children in the home of either parent and noted that both parents are heavily involved in extracurricular activities for the children.  She says that the children appear to be thriving within a shared care arrangement between their parents.

1. Both parties propose an order for equal shared parental responsibility and so it is not necessary to consider whether the presumption contained in s.61DA of the Family Law Act 1975 (Cth) is rebutted.

2. Once the order for equal shared parental responsibility is made s.65DA requires the court to consider whether equal time with each parent would be in the children’s best interests and reasonably practicable and if not equal time then whether substantial and significant time would be in the children’s best interests and reasonably practicable.

3. Section 60CA provides that the best interests of the child are the paramount consideration in making parenting orders. The considerations in determining what are in a child’s best interests are in s.60CC.

4. The first of the primary best interest considerations is the benefit to the children of a meaningful relationship with each parent.  Each parent acknowledges the children have a strong and rewarding relationship with each parent.  The family consultant’s observations confirm this.

5. Since neither parent is presenting concern for the safety of the children with the other parent the second of the primary considerations is not relevant.

6. The first of the additional considerations is the views of the children.  To Ms G X described his current parenting arrangement as “good”.  Ms G says that X understood his mother did not want him spending any more time with his father as she held concerns regarding his father entering a new relationship.  X said he was concerned about his mother’s feelings and wanted her to be happy with any future parenting arrangements.

7. Ms G says that X may have been overly exposed to his mother’s views on issues and was motivated to advocate for a parenting arrangement which may make his mother happy.

8. Y described a positive relationship with each parent.  She stated she did not want to spend more time at her father’s home as she would miss her dogs.

9. The evidence is that the children do not want an increase in time, but there are caveats in both cases.  X may be overly influenced by his mother’s views and Y is eight and so what she says must be considered in that context.

10. The next consideration is the relationship of the children with each parent and other persons.  Both parents are very involved in the children’s lives with strong relationships with them.  Since separation the children have been cared for by their mother to a greater extent than their father.  There have been times when the father’s attention to the children was distracted by his relationship with his then current girlfriend.

11. The next consideration is the extent to which each of the parents have participated in major long-term decision making and spending time communicating with the child.  There is no evidence about how decisions about the children’s school were made.  The father has been spending time with the children on a regular basis since separation.

12. The next consideration is the extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child.  The father has minimal income and so pays no child-support.  He applied for and obtained his entitlement to an education bonus and spent little on the children’s education.

13. The next consideration is the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs.  The current arrangement suits the children‘s emotional and intellectual needs.  Each parent is involved in the care and so is contributing to this provision.

14. The family consultant recommended equal time.  She notes that it appears the parental separation and the father’s choosing to establish a new relationship was difficult for the parents and the children.  She says this transition had a significant impact on the children as the father’s partner was introduced to the children possibly too early into the relationship.

15. Ms G notes that the parents are in dispute about whether the children spend either five nights or seven nights each fortnight with the father.  She said there is no significant practical difference between the children spending an extra night with their father per week.  Her oral evidence is that six nights per fortnight would be all right.  She recommends block time to avoid the constant changing that the mother’s proposal recommends.

16. Both parents are involved significantly in the children’s extracurricular activities.  The children spending each Friday night with the father means that for X in particular his father will be taking him to his sport commitment on Saturday morning.  The mother is opposed to the block time because she is concerned that there may be some behaviour by the father which the children found unsettling.  Evidence of what occurred in the past shows that what the children may find unsettling is if the father introduces a new partner.  The mother’s proposal means that the children in one week would spend Wednesday night and Friday night with their father and the one night in between, Thursday, with the mother.

17. The current arrangement suits the children and to the extent that their views can be taken into account they have not expressed a desire for more time with the father.  The mother’s proposal would, in 2017 leave the children’s routine as it is except for the addition of a Friday night in each fortnight.  Overall, I am satisfied that the mother’s proposal meets the children’s best interests.

18. I am required to consider the reasonably practicable considerations. These are contained in s.65DAA(5) The parents live close enough so that any of the proposals put by them will work. The second and third of the reasonably practicable considerations are the parent’s current and future ability to implement the arrangement and their current and future capacity to communicate to resolve difficulties that might arise implementing the arrangement.

19. After separation and until the implementation of the current orders the parent’s ability to meet these considerations was limited.  Their communication has improved but they remain in dispute about many matters relating to their relationship and the separation.  They have been able to implement the current arrangement and to communicate to resolve difficulties.  The extra day will not affect this.

Property

1. The steps in determining a property application under s.79 of the Family Law Act 1975 (Cth) are to determine the parties’ assets and liabilities, whether it is just and equitable to make an order, then determine the parties contributions and then whether any adjustments should be made for the matters set out in s.75(2).

2. At the commencement of the relationship of the applicant’s only property was a motor vehicle.  The respondent owned a property at Property H.  The parties lived in this home for the first six months of their relationship then stayed with the respondent and then rented until their home at Property M was built.  Property H property was sold in 1999 for $280,000.  After discharge of the mortgage the respondent says there was $135,000 left.  The father says it was less.  I am satisfied that what the respondent says is correct.

3. The applicant worked as a (occupation omitted) throughout the relationship although since separation he has undertaken only (omitted) work.  He has commenced a business called (omitted).  The applicant describes it as a (business omitted) he has set up to help (omitted) people in the (omitted) industry with issues in the (omitted) industry.  It earns income through (omitted) services.  It is difficult to understand.  It appears that he is offering services over the Internet to businesses.  Specifics are (omitted).  It is not generating income and there is no evidence from which I find that it has any prospect of generating income.

4. At the commencement of the relationship the respondent was working full-time as a (occupation omitted) with (employer omitted).  She took maternity leave and then returned part time and then received a retrenchment package of approximately $150,000 in 2009.  She says this was used for family expenses.  After retrenchment she commenced a (omitted) business which does (employment omitted).  She works in the business herself and employs other people.  She gives a gross weekly income as $741 per week.  $673 of this is the wage.  She has some shares from which she receives a dividend equal to $10 per week and family tax benefit of $58 per week.

5. The parties purchased the property on which the family home stands and built the house.  The applicant worked on the building of the house and family and friends assisted.  The applicant’s claim to 65% is based on his assertion that the house was largely built through his own efforts and his family’s efforts, his father and brother and that his contacts meant it was done at a reduced rate or as a return of assistance by him elsewhere.

6. The evidence contains little detail about who did what work, what amounts were paid and when the work was done.  A reasonable inference is that while the applicant was working on building the house he could not work in his income earning business as a (occupation omitted).

7. The applicant carried on his business through a family trust, with an incorporated trustee.  Through that business he purchased five blocks of land hoping to make a profit on the sale.  He did not.

8. The respondent worked throughout the relationship.  The applicant worked in his (omitted) business, which included employing others, until separation but he has worked little since then.  While the work the applicant did on building the house and the work his family did, some of it for nothing has to be taken into account in assessing contributions it has to be balanced against the respondent’s employment and her care of the children.  The parties organised their lives in such a way that they purchased the land and built the house in the way they did.

9. The respondent received a redundancy payment of $150,000 approximately which was used for living expenses.  The respondent immediately commenced her (omitted) business.  It would have taken some time to start producing a reasonable income, but some of the $150,000 must be treated as a lump sum contribution by the respondent

10. There is nothing in the evidence which justifies the applicant’s claim that he should receive a higher assessment of his contribution because of the work done on the house.  This was part of the matrimonial arrangements.  The respondent says she had savings of $50,000 at the commencement of the relationship.  The applicant disputes this but I accept what the respondent says.  I am satisfied she did have those savings.  She owned the Property H property which in 1999 contributed $135,000 to the purchase of the land on which the parties built their house.

11. The respondent has paid the mortgage since separation, but she has continued to live in the house.  The respondent’s initial contribution of $50,000 in savings and the Property H property which she owned when the parties commenced the relationship has some influence on contributions that has to be considered in the context that this was at the commencement of a 14 year relationship.  The $135,000 which the sale of that house yielded in 1999 went to the purchase of the land on which the parties built their home and so the respondent’s ownership of the house when the parties commenced their relationship meant that they were able to obtain what is now the main asset.  The respondent’s initial contribution has to be put in that context.  When that is put with the $50,000 of savings the respondent had at the commencement of the relationship and put in the context of a 14 year relationship the adjustment for the respondent is 5%.

12. The respondent is getting a slightly higher income than the applicant through her (omitted) business.  That is because the applicant is doing little (omitted) work.  He hopes to derive an income from the business which he is commencing.  He says he has some medical problems which mean he cannot continue with the hard physical work of (occupation omitted).  There is no medical evidence to this effect.

13. I consider that the s.75(2) adjustment should be approached on the basis that the parties’ income earning potential is about equal. The respondent is six years older than the applicant and so has less time to consolidate her financial position. She has more superannuation and will retain $96,000 of superannuation following these orders. The children are aged 12 and 10. From the commencement of 2017 they will spend eight nights a fortnight with the respondent and six nights a fortnight with the applicant. I am satisfied that the respondent has made the greater contribution to school, clothing and other expenses beyond day-to-day expenses and that that is likely to continue. The applicant has made little contribution to these expenses in the past. He received the school children’s bonus but used most of it on his own expenses which, as he said, includes caring for the children when they are with him. The proper adjustment is 7½% to the respondent. The overall adjustment is 62½% to the respondent and 37% to the applicant.

14. Only the respondent has superannuation, an amount of $126,207.  The respondent says that the contributions she made to her (omitted) policy were made before the commencement of the relationship.  The applicant says that they continued to pay $50 a month into that superannuation.  I accept what the respondent says.  That means that the applicant has made no contribution to the respondent’s (omitted) superannuation, which now has a value of $27,014.

15. The respondent’s (omitted) superannuation is $99,207. She commenced working for the (employer omitted) prior to commencing the relationship with the applicant. The information provided in accordance with r.63 of the Family Law (Superannuation) Regulations says that her eligible service period commenced on (omitted) 1987.  The value of her superannuation at 31 December 2012 was $76,516.44.  The evidence does not show the value of her superannuation at the time the relationship commenced.

16. Based on the material which is available the assessment of the applicant’s contribution to the respondent’s superannuation is 30% of the (omitted) superannuation, in round figures $33,000.  I will make a splitting order accordingly.

17. The proposed orders for the division of proceeds of the sale of the parties’ house and for a splitting order of superannuation.  The parties’ relationship has come to an end.  Both propose an order.  The orders proposed are just.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 4 October 2016