KAUL & KAUL

FAMILY COURT OF AUSTRALIA

KAUL & KAUL

[2012] FamCA 912

FAMILY LAW - PROPERTY – Settlement in relation to marriage – Whether the wife should receive 65 percent of the net assets – Whether the assessment of contributions ought to favour the husband – Where the parties finances are enmeshed with the husband’s parents – Where the parties agree to divide their non-superannuation assets and liabilities – Where the husband has the greater earning capacity – Where an adjustment of 8 percent in favour of the wife is just and equitable – Where the net assets are to be divided 58 percent to the wife and 42 percent to the husband.

FAMILY LAW - CHILDREN – With whom a child lives – Best interests of child – Where the parents have equal shared parental responsibility – Where there is poor communication between the mother and the two elder children – Where the youngest child has a good relationship with both parents – Where the two elder children wish to remain resident with the father – Where the children have a strong sibling relationship – Where it is considered unrealistic that the father would facilitate the youngest child’s relationship with the mother – Where there is considerable conflict and hostility between the parents – Where orders are made for the youngest child to live with the mother and spend significant time with the father.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 60I; s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3); s 75(2); s 79; s 79(1); s 79(2); s 79(4)

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414

Ferraro and Ferraro (1993) FLC 92-335

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422

Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355

Lee Steere and Lee Steere (1985) FLC 91-626

MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Kaul

RESPONDENT:

Mr Kaul

FILE NUMBER:

PAC

1304

2011

DATE DELIVERED:

5 October 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

30 April, 1 & 2 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Kazi Portolesi Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O'Brien

SOLICITOR FOR THE RESPONDENT:

Stojanovic Solicitors

Orders

Parenting Orders

That the following parenting orders are made in relation to the children B born … May 1995, C born … August 1997 and D born … February 2006.
That all previous orders are discharged.

Parental responsibility

That the husband and the wife have equal shared parental responsibility for the children.

Live with

That D live with the wife (commencing at 5:00 pm on 7 October 2012) at all times other than when he is living with the husband as provided herein and that B and C live with the husband and spend time with the wife in accordance with their wishes.
That for the purposes of D commencing his residence with his mother the husband shall deliver D to his mother at 5:00 pm on 7 October 2012 at the Suburb E Police Station, New South Wales.
That D live with the husband at the following times:
(a) In a two week cycle as follows:
(i)In week one the husband is to collect D from school on Tuesday at 3:00 pm (commencing on 16 October 2012) and drop D off at the wife’s place of residence at 8:00 pm;
(ii)In week one the husband is to collect D from school on Wednesday at 3:00 pm (commencing on 17 October 2012) and drop D off at the wife’s place of residence at 8:00 pm;
(iii)In week two the husband is to collect D from school at 3:00 pm Friday (commencing on 26 October 2012) and the wife shall collect D from the husband’s residence the following Sunday at 6:00 pm;
(iv)From 5:00 pm to 8:00 pm on the husband’s birthday if the said birthday is not within the periods set out in the preceding paragraphs;
(v)For one half of each school holiday period as agreed between the parties and failing agreement being the first half in 2012 (commencing 22 December 2012) and each alternate year thereafter and the second half in 2013 and each alternate year thereafter. Holidays are deemed to commence at 9:00 am on the first day after public school term ceases and changeover shall be at 6:00 pm on the day in the middle of the school holiday period;
(vi)From 4:00 pm until 7:00 pm on D’s birthday, if the said birthday is not within the periods set out in the preceding paragraphs;
(vii)From 11:00 am until 6:00 pm Christmas Day in 2013 and each alternate year thereafter;
(viii)From 9:00 am to 6:00 pm on Father’s Day.
Notwithstanding paragraph 6 above:
(a)That D shall live with the wife from 4:00 pm until 7:00 pm on each of his birthdays if the said birthday is within the periods set out in paragraph 5 above;
(b)That D live with the wife from 5:00 pm to 8:00 pm on her birthday;
(c)That D live with the wife for half of each school holiday period, being the second half of 2012 and each alternate year thereafter and the first half in 2013 and each alternate year thereafter;
(d)That D live with the wife from 11:00 am until 6:00 pm Christmas Day in 2012 and each alternate year thereafter;
(e)That D live with the wife from 9:00 am to 6:00 pm on Mother’s Day.

Changeover

That unless otherwise provided for in these orders, the husband shall collect D from the wife’s residence at the commencement of each period that D is to live with or spend time with the husband and the wife shall collect D from the husband’s residence at the conclusion of such periods.
Each of the husband and the wife shall:
Medical
(a)Inform the other as soon as possible of any serious illness or injury suffered by any of the children while in their respective care;
(b)Inform the other as soon as possible of any medical or dental treatment being administered to any of the children or any specialist appointments which any of the children are to attend;
(c)Inform the other of any medication any of the children are to take while the children are in the care of the other parent;
(d)Inform the other parent of any special dietary requirements any of the children may have;
(e)Provide all authorities and directions necessary for all health professionals consulted by any of the children to provide to each of the husband and wife all information and material held in relation to any of the children;
School
(f)Provide all authorities and directions necessary for all schools attended by any of the children to provide to each of them all information and material held in relation to any of the children;
(g)Be entitled to attend all school-related events involving the children;
Address and telephone
(h)Inform the other parent and keep the other parent informed about their current residential address and contact telephone number including mobile phone number;
Extra-curricular
(i)Ensure that whilst the children are in their care they attend all extra-curricular activities including taking D to his soccer engagements.
Keeping in Contact
(j)Enrol in and complete as soon as possible the “Keeping in Contact” Program conducted by Unifam.

Property Orders

That the husband and the wife forthwith do all things and sign all documents necessary to cause the net proceeds of sale of the property at F Street, Suburb G Queensland to be paid to the wife.
That within 42 days the husband pay to the wife the sum of $56 336.
That upon compliance with the above order the wife shall do all things and sign all documents necessary to transfer to the husband her interest in the property at H Street, Suburb J, NSW provided that simultaneously with such transfer the husband refinances or discharges any mortgage secured over the property so that the wife is not named as a mortgagor or borrower in relation thereto.
That within 42 days the wife do all things and sign all documents necessary to transfer to the husband her interest in the motor vehicle and the shares in K Club.
That subject to compliance with order 11, pursuant to s 79 of the Family Law Act 1975 (“the Act”) the husband is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in his possession and/or control free from any interest of the wife and shall indemnify the wife in relation to any and all debts attaching thereto.
That pursuant to s 79 of the Act the wife is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in her possession and/or control free from any interest of the husband and shall indemnify the husband in relation to any and all debts attaching thereto.
That if either party fails or neglects to sign any document, instrument or writing to give effect to these orders after seven days of being requested to do so, the Registrar of the Family Court of Australia at Parramatta shall pursuant to s 106A of the Act sign such document, instrument or writing on behalf of the party in default and do all things necessary to give validity and operation to the document, instrument or writing.
That the above property orders not commence operation until 23 October 2012.
That both parties have liberty to re-list these proceedings by arrangement with my Associate at any time not later than 22 October 2012, for further submissions in relation to the form of the property orders only.
That all exhibits be released.
That both parties have liberty to re-list these proceedings on 14 days notice in relation to the implementation of the orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaul & Kaul has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1304 of 2011

Ms Kaul

Applicant

And

Mr Kaul

Respondent

REASONS FOR JUDGMENT

These are final parenting and property proceedings.
The parties are Ms Kaul and Mr Kaul. For convenience I shall refer to them as “the wife” and “the husband” respectively.
The parties have been unable to agree on final parenting and property orders and have asked this Court to determine these matters.
Their child who is the subject of the proceedings is D. D is 6 years of age, having been born in February 2006.

Applications

The wife seeks orders to the following effect:
·That the parents have equal shared parental responsibility for the child;
·That the child live with his father as follows:
a)In week 1 and each alternate week thereafter, the husband to collect the child from his mother’s home each Tuesday and Wednesday at 4:00 pm and return him to the same place at 8:00 pm;
b)In week 2 and each alternate week thereafter, the husband to collect the child from his mother’s home at 6:00 pm Friday and return him thereto at 6:00 pm the following Sunday;
c)On the child’s birthday and the husband’s birthday at specified times;
d)One half of each school holiday period as agreed and failing agreement the second half in 2011 and each alternate year thereafter and the first half in 2012 and each alternate year thereafter;
e)For specified times on Christmas Day and Father’s Day; and
f)Certain other orders about specific issues.
·That otherwise the child live with his mother;
·In relation to property:
a)That the wife transfer to the husband her interest in the property at H Street, Suburb J, New South Wales upon payment to her by the husband of a sum in an amount sufficient to ensure that the wife would receive 65 percent of the total net value of the assets of the parties;
b)That the wife transfer to the husband her interest in the motor vehicle and the shares in K Club;
c)That otherwise the parties each be declared the sole owner of all other property including superannuation in their possession and / or control respectively; and
d)Certain enforcement orders.
On the other hand the husband seeks orders to the following effect:
·That the parties have equal shared parental responsibility for the child;
·That the child live with his mother as follows:
a)Each Wednesday from 6:30 pm until 8:30 pm;
b)Each alternate week from 6:30 pm Friday until 6:00 pm the following Sunday;
c)For the first half of each school holiday period; and
·That otherwise the child live with his father;
·In relation to property the husband seeks orders to the following effect:
a)That the wife transfer to the husband her interest in the property at H Street, Suburb J, New South Wales;
b)That upon such transfer the husband indemnify the wife and keep her indemnified in relation to any liability attached to the property;
c)That so much of the net proceeds of sale of the property at F Street, Suburb G, Queensland be paid to the wife as will ensure that she receives 30 percent of the total net value of the assets of the parties excluding superannuation entitlements;
d)That the balance of such net proceeds of sale be paid to the husband;
e)That otherwise each party be declared the owner of all other property and superannuation in their possession and / or control respectively and that each indemnify the other in relation to any and all debts attaching thereto;
f)An enforcement order.

Background

The wife, 40 years, and the husband, 41 years, married in 1993. But they did not commence cohabiting until after their religious marriage ceremony. They separated on 9 January 2011.
There are three children of the marriage. They are B who was born in May 1995 and is currently 17 years of age, C who was born in August 1997 and is currently 15 years of age and D who was born in February 2006 and is currently 6 years of age.
In October 1993, the parties moved into the husband’s parents’ home at L Street, Suburb M. The husband’s brother Mr N also resided at the property together with his parents. He was still attending school.
At this time the husband was working full time as a TV antenna technician. The wife was working full time at O Pty Ltd. Shortly after the commencement of cohabitation the wife commenced full time employment with EE Pty Ltd.
In late 1994 or early 1995, the parties purchased an investment property at P Street, Suburb Q for $119 000. The parties used their joint savings for the deposit and legal costs, and they obtained a loan of $107 100 on mortgage from the Advance Bank.
In May 1995, B was born.
In 1996 the husband’s parents sold their Suburb M property and purchased vacant land at Suburb J for $100 000. The parties, the husband’s parents and the husband’s brother subsequently borrowed approximately $240 000 to fund the construction of a large home on the land. All five family members were on the title as owners of the land, the husband and wife holding a 40 percent interest as joint tenants.
Shortly after the Suburb M home was sold the parties, B, the husband’s parents and his brother moved into a rented property at R Street, Suburb S while their new home was being built.
In August 1997, C was born.
At approximately this time, the parties, the children, the husband’s parents and the husband’s brother moved into their new Suburb J home. The wife resigned from her employment to stay at home and care for the children full time.
In 1999, the wife returned to work on a casual basis. She worked for T Pty Ltd a couple of days a week. She took the children each workday to be cared for by her mother at Suburb U. She collected them after work.
In 2000, the husband commenced employment with V Pty Ltd. The wife ceased her employment at the husband’s request. He asserted that she had been having an affair with her manager. The wife denied this. The wife again stayed at home and cared for the children. She studied an office administration course during the evenings 2 to 3 times a week at TAFE.
In 2002, the wife recommenced full time employment. She worked for W Pty Ltd. B was at school and C had commenced pre-school.
In March 2003, the parties purchased a second investment property at F Street, Suburb G, Queensland for the sum of $208 000. They borrowed $251 854 from the ANZ Bank by way of mortgage secured over both of their investment properties.
In February 2006, D was born.
In June 2009, the parties sold their property at P Street, Suburb Q for approximately $280 000.
In January 2011, the parties separated. The children have lived with the husband since that time.
On 18 March 2011, the husband filed an Application in the Local Court, Campbelltown seeking parenting orders.
On 24 March 2011, the wife filed an Initiating Application in the Federal Magistrates Court seeking parenting and property orders.
On 12 April 2011, the husband’s application was transferred from the Local Court and was entered as a Response to the wife’s Initiating Application.
On 18 April 2011, Registrar Bartlett made interim orders by consent that provided, in summary, for the children to live with the husband and spend alternate weekends and two hours on Mondays and Wednesdays with the wife. The children did not spend time with their mother in accordance with these orders.
On 27 April 2011 and again on 5 May 2011, the parties and children attended interviews with Family Consultant, Ms X.
On 23 May 2011, Collier J made parenting orders amending the orders made on 18 April 2011. The orders provided in effect for the wife to collect D from the husband’s home on Saturday mornings, to collect B and C at the conclusion of their netball game on Saturdays and to return all three children to the husband’s home at 6:00 pm.
On 17 August 2011, I made orders by consent providing for the children to live with the husband and to spend time with the wife in accordance with their wishes.
On 17 October 2011, I made interim parenting orders by consent that provided for D to spend time with both parents over the upcoming Christmas school holidays. The substantive applications were then set down for hearing on 30 April 2012.
On 11 April 2012, the parties exchanged contracts for the sale of the Suburb G property for the sum of $339 000. Settlement was to take place on or about 16 May 2012.
On 2 May 2012, at the hearing, I made orders by consent to the effect that the orders of 23 May 2011 be varied so that pending further order the wife have care of D as follows:
·each Wednesday from no later than 6:30 pm for 2 hours commencing 9 May 2012
·each alternate week from Friday 6:30 pm through to 6:00 pm Sunday
·on 3 May 2012 from no later than 6:30 pm for 2 hours and
·in respect of all school holiday periods the wife to have care for the first half of each period.
In addition, both parents were to ensure that the children attend all their extra curricular activities including taking D to soccer and the husband was to provide the wife with at least 7 days notice of any extra-curricular activities.

Credit

The wife

The wife was the most responsive of all of the witnesses.
It is true that she did not demonstrate as detailed a grasp of financial material as did the husband. In relation to her assertions about the amount of cooking, housekeeping and even parenting she did, I thought to an extent these were exaggerated. But in fairness to her, during cross-examination she conceded that perhaps such assertions involved some overstatement by her.
Of all the witnesses I was most impressed by the wife and generally regard her as a truthful and reliable witness.

The husband

The husband demonstrated a reasonable grasp of financial details. But he appeared to have considerable difficulty with the process of cross-examination. On many occasions it was very difficult to obtain from him a concise response to questions. Often he simply said something completely unrelated to the question. On many occasions when the question demanded a simple response “yes” or “no”, the husband provided information which appeared to me was probably perceived by him to favour his case. He was reminded frequently by learned counsel for the wife that he was required to provide a responsive answer and that he was not doing so. But this appeared to make little difference and the husband continued in this vein right through to the conclusion of his cross-examination.

The husband did make concessions and on numerous occasions. But I had less confidence in the reliability of his evidence than I did of that of the wife.
In all the circumstances, where there is conflict between the evidence of the wife and that of the husband, generally I prefer that of the wife.

The husband’s father

It has to be remembered that English is not the first language of the husband’s father. He had the assistance of an interpreter during the interviews for the preparation of the family report. But Mr Kaul senior appeared to well understand the questions and generally he gave responsive answers.
While I am confident about the accuracy of some fairly straightforward matters of detail in his evidence I could not say my confidence about all matters of detail in his evidence was without reservation. In particular, I regard his evidence about the contributions made by the wife to domestic and parenting duties over the whole period of the marriage to have been distorted by his recollection of the wife’s participation therein over the couple of years prior to the parties’ separation. I regarded his evidence generally as being somewhat prone to exaggeration in a manner which was perceived by him might serve the case of his son.

The husband’s mother

Mrs Kaul senior demonstrated a good recollection of the financial details with respect to the purchase of her Suburb M home in 1987 and the Suburb J land. But I have less confidence about the reliability of many other matters of detail in her evidence.
In response to many questions Mrs Kaul simply said “I don’t know”.
Like her husband, her recollection of the wife’s contributions in the areas of domestic work and parenting appeared to be somewhat distorted by the relative freshness of the circumstances of the last couple of years prior to separation. She said that she did most of the cooking and the housework and taking the children to and from school. I must say I cannot accept this as a balanced account of the wife’s efforts in relation to such matters over the entirety of the period of marriage.
To be fair to Mrs Kaul, she did agree with counsel that during earlier times the wife was a good mother to the children, especially when they were very young, and that the wife worked hard.

PARENTING

In the parenting proceedings there were two incidents which attracted some prominence.

Incident on 29-30 January 2011

On Monday 31 January 2011 at 3am the Police attended the husband’s home and informed the husband that they wanted to speak to C. They said that they had received a telephone call from someone who said that C had written to them saying that she was going to kill herself.
On the previous Saturday 29 January 2011, the children had spent the day with their mother. That evening C had become very upset. She informed her father that her mother had told the children that she did not want them anymore because they had said that they did not wish to live with her.
The husband said that when C returned home she was very upset and wrote an SMS message to her mother saying:
Mum please do not talk like that and please do not say we don’t love you and please do not say you will go overseas and leave us… When you talk about things like that it also makes me cry and makes me feel like killing myself.
The wife said the text message she received from C was as follows:
I miss u sooooooooooo much mum. U don’t understand it feels like a part of me has been ripped out. I luv u so much and wen u say things like u think we don’t wanna c u nd wen u say ur gonna move overseas it hurts so much I feel like killing myself. I need u mum nd don’t want to believe what is being sed. I cry myself to sleep everynite thinking of u and how u left…Mummy I luv nd miss u lots Xoxoxoxoxoxox.

Incident on 26 February 2011

On Saturday 26 February 2011 the police again attended the family. This followed an argument between the parents when the wife attended the husband’s home to collect the children to spend the day with them. The husband insisted on the wife informing him where she was taking the children during her time with them. She declined to tell him and made it clear that she did not have to account to him in such a manner.
After the wife and children left to commence their time together they were in their mother’s car. The girls sent their father various text messages reporting where they were. The parents had been unable to agree about the time the mother would hand back the children to their father. The husband arrived to collect the children earlier than the wife desired. There was a scene. The wife did not wish to return D to his father’s care. Eventually the police attended.
Clearly this was very upsetting for the children and each of them was crying. Both parents handled things poorly that day and certainly not in a manner which demonstrated that they “had the needs of the children uppermost in their minds.”

Children sharing adults’ beds

During the marriage it was common for one or other of the children to occupy the bed of their parents and even their grandparents. The wife informed Ms X that during the marriage she and B occasionally swapped beds and that she had been concerned that the husband might have acted in some sexual manner towards B mistaking her for the wife.
This suggestion drew criticism from learned counsel for the husband. I must say that any suggestion that the husband would act in an untoward manner towards the girls is completely unfounded, in my view.
Having said this, in my view, it is not appropriate for the parties or the children’s grandparents to be sharing beds with any of the children. If this practice has continued, then in the interests of the children it should cease.

Submissions

The wife

The submission on behalf of the wife was quite succinct. In essence it was that if the Court was to order that the child D reside primarily with his father it would be highly likely that in time he would not have any relationship with his mother. It was submitted that the Court could have no confidence that the husband would be able to facilitate the maintenance and development of the child’s relationship with his mother. It was submitted that the Court would base its determination about this matter on the reality of what has happened in terms of the relationships between D’s elder sisters and their mother. Learned counsel for the wife pointed to the fact that each of the five adults in the husband’s household, including the husband, held a very negative view towards the wife and they would be unlikely to encourage D passing into the care of his mother, and participating in the broader aspects of their relationship.
It was submitted that although the husband has been able to achieve D going with his mother for weekend contact, given the attitudes of all family members and the failure of the husband to be able to support, in a real way, the elder sisters’ relationship with their mother, over time it would be highly unlikely that D’s relationship with his mother would continue.

The husband

It was submitted that when the Court considers the reasons for the breakdown of the relationship between the parties’ two daughters and their mother, not all responsibility for this situation could be sheeted home to the husband. It was submitted that the husband had endeavoured to encourage the girls to spend time with their mother but that their experience was that when they did so she responded by arguing with them and putting pressure on them to return to her care. It was submitted that the incident on 31 January 2011 when the police attended, would have been frightening for the children.
It was submitted that D has a healthy and established relationship with his father, his siblings and their extended family and that to remove the child from this and place him primarily with his mother would be likely to have serious consequences for him. It was submitted that this would involve him being removed from his school and his usual circle of friends and that the Family Consultant said that such a course would be likely to have negative impacts on his development and on his emotional and mental health. In addition, it was submitted that it would not be good to remove him from his siblings who are extremely protective of him and can support him particularly in the circumstances of the difficulty caused by the conflict between their parents.
It was submitted that the husband has had some success in being able to persuade D to spend time with his mother. Reference was made to the turn-around in April when initially D said that he would not go and two weeks later he went with his mother.
It was also submitted that the child has not shown signs of being alienated from his mother such as being disproportionately critical of her together with the fact that the Family Consultant assessed the child and mother as having a loving relationship.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, there is no issue about the parents having equal shared parental responsibility, each of the parents having asked the Court to make such an order. I shall do so. Although they have a poor relationship, they have managed to support appropriate school and extra-curricula activity for D.
Because the Court shall be making an order for equal shared parental responsibility for D, it must first consider making an order for the child to spend equal time with each parent if this will be in the interests of the child. I am satisfied for the reasons below, that such an order would not be in D’s interests. In any event, neither parent is seeking such an order.
I shall return to consider the question of whether D spending substantial and significant time with each of his parents would be in his best interests and be reasonably practicable.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. These are as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Family Consultant, Ms X said that during interview D stated that he would prefer to live with his father because they “have fun”. But D is only six years of age. Unsurprisingly, Ms X said that given D’s age and apparent developmental level, she assessed that his views could not be relied upon. In my view, little weight would be attributed to this statement by D.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The husband informed the Family Consultant that he thought that there were problems in the relationship between D and his mother. He said that he thought this was because the wife had not had a lot of involvement with the children during the 18 months prior to separation because of her work commitments.
Ms X said that D appeared to have positive and established relationships with both his parents.
The wife said that the children (including D) have good relationships with their father.
Ms X also said that D appeared to have positive and established relationships with both his paternal grandparents and his sisters.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The husband said that the wife regularly failed to arrange for D to telephone him when the child was spending time with his mother. The wife conceded that she had missed arranging the calls on some occasions.
Apart from this, there have been no real difficulties with the wife facilitating the relationship between the children and their father. There was the incident on 26 February 2011 when the wife did not wish to return D to his father. But that day had been particularly upsetting for everyone. In any event, I understand that D went back into his father’s care. Apart from this difficulty, the wife has returned D to his father after his times spent with her. The wife informed the Family Consultant that she would do “everything” to encourage D to have a relationship with his father. She also informed the Family Consultant that D needs to have a relationship with his father.
On the other hand the husband informed the Family Consultant that he believed the wife was an “important part” of D’s life.
Ms X said that it was beyond the scope of her assessment to determine the allegations made by the wife that the husband had failed to encourage the girls to have a relationship with her. When asked during cross-examination for an example of the husband having done something to promote the girls’ relationship with their mother, Ms X said that the husband had informed her that he had told the girls to go outside and speak to their mother but he did not say that he had actively pursued that.
In my view, it became quite clear during the hearing that the girls have lost their relationship with their mother largely due to failure on the part of their father to protect the girls from the very poor view which he and his family have of their mother. The husband conceded that he had not protected the children from his suspicion that their mother had had an affair. In fact, he agreed that his suspicion had been conveyed to the children. The husband conceded that the girls no longer had anything to do with their mother. He also conceded that he had done nothing to encourage them to communicate with their mother last Mother’s Day.
The husband attributed the girls’ failed relationship with their mother to their mother’s behaviour and appeared not to be able to accept that his behaviour, and that of the other members of his household, played any part in this. Ms X said that the wife’s behaviour (in putting some pressure on the children to say that they wanted to live with her) of itself would not justify the children not wanting to spend time with her.
Ms X said that to her recollection, the paternal grandparents had nothing positive to say about the children’s mother.
Ms X said that if the Court found that the father and the other members of his household were unwilling or unable to facilitate or maintain a relationship between the children and their mother, this would be a concern.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Ms X said that because D’s sisters had expressed the view that they did not wish to spend time with their mother, D would be likely to spend significantly less time with his sisters if he was to reside with his mother. Ms X said that this might be experienced by D as difficult and could result in emotional and behavioural changes in him. She said that the wife demonstrated limited understanding of this and appeared to minimise the importance for D of his sibling relationships.

The wife informed Ms X that D made friends easily and that the girls were “old”, and that while they love D they would not be interested in playing with him. She said during cross-examination that D was adaptable and friendly.
On the other hand the likely effects of D’s separation from his mother, if he was unable to have a relationship with her, as has happened with his sisters, could only be guessed at this point.
Ms X conceded that she had not addressed in her Report the impact on the girls of choosing not to have a relationship with their mother. Nor did she address the likely effect on D if he was to continue to live in his current circumstances where everyone appeared to be hostile towards his mother.
Ms X said that changing schools and changing his friends might have a detrimental impact on D, and that his mother did not demonstrate much understanding of this. Ms X said that the wife did not have any strategies to manage any difficulties experienced by D in this regard.
D has been in the current arrangement living in his father’s household in the absence of his mother for more than twenty months. The Family Consultant said that if he was removed from this arrangement he could experience a period of grief, loss and anxiety, and demonstrate some behavioural problems, depending on how the situation was managed for him. The Family Consultant also said that sibling relationships can be a protective factor where there is ongoing parental conflict and that removal of D from residence with his sisters could remove such protection. Ms X also said that D would also be removed from his environment of consistency and routine which is invariably good for children.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The husband and the wife live 50 kilometres apart. The wife lives at Suburb U with her parents and brother Mr AA.
The husband lives in the former matrimonial home at Suburb J with his daughters, his parents, his brother Mr N, his sister in law Ms BB and their two young children.
If most of the collection and delivery of the child was to take place at school the geographical distance between them would be manageable. The difficulty would appear to be for after school time spent by the non-resident parent with the child. It would appear that this would need to be spent near the child’s residence and school.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

In the observation session the Family Consultant said that the husband’s interactions with D consistently appeared sensitive and appeared appropriate to D’s apparent developmental levels. Ms X also said that there were no apparent indicators during assessment that the husband did not have the capacity to provide D with a stable environment and effectively meet his needs without the support of the paternal grandmother.
In my view there must be reservations about the capacity of the husband to provide for D’s emotional needs. Despite the husband’s assertions that it would be important for the girls to have a relationship with their mother he has found himself unable to support such a relationship. Although Ms X did not report on this, in my view the husband has not been able to prioritise the girls’ need in this regard above his own inclination to continue to behave in a hostile and disrespectful manner towards their mother. Also troubling was the inability of the husband to accept any responsibility for the ongoing conflict between the parents. He blamed the wife entirely for this situation.
In my view it reflects poorly on the husband’s parenting capacity that early in 2011 D’s school attendance records showed ten unjustified absences from school. The husband said that this was no longer a problem.
The Family Consultant said that the wife’s interactions with D also appeared appropriate to his developmental levels. Ms X said that the wife also demonstrated an ability to engage with D in a manner which was sensitive although this did not appear to be consistent and, at times, D appeared to disengage from his mother. Ms X suggested that the mother attend a parenting group with a focus on improving parental interaction.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

The children are being raised with considerable emphasis on their culture, traditions and lifestyle. In my view, the children will be able to continue this in either their mother’s or their father’s household.

Sub-section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not relevant.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

As indicated above, the husband has been unable to elevate the girls’ needs to maintain their relationship with their mother above his own need to indulge himself in conflict and hostility towards her.
The wife contacted the girls’ friends when she did not receive information from their father about the girls. Ms X said that this was likely to have a detrimental impact on the girls’ peer relationships and their emotional wellbeing and raised concerns about the wife’s ability to prioritise the children’s needs above her own needs. It also involved other children in the parental conflict of the husband and wife which was highly inappropriate. The wife, like the husband, had been unable to protect the children from the conflict and hostility between the parents.
These matters reflect poorly on both parents.
The husband had been unable to protect the children from the belief held by himself and his parents that the wife’s behaviour justified them in discussing their views about her behaviour with the children. This would appear to have been highly inappropriate and to have been prominent in the matters which have almost certainly been responsible for the breakdown in the relationship between the girls and their mother.
The mother has arranged to attend three parenting courses including Parenting After Separation scheduled to have commenced in May 2012, Self esteem for Children and Managing Children’s Behaviour. The father said that he had attended one session of a parenting course but said he was unable to follow through because of the demands of his employment.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

The wife alleged that the husband was controlling and abusive towards her during the marriage. She also alleged that he raped her during the marriage. These assertions have not been established.
But what is clear is that the children have been exposed to considerable conflict and hostility between their parents and the negative views and attitudes each parent has for the other.
Ms X said that this polarisation of the parents may have resulted from the children feeling that they had to choose one parent over the other. She said that it was likely that D would continue to be exposed to such conflict which might result in him having to choose one parent to the exclusion of the other. Ms X recommended that the parents attend the “Keeping in Contact Program” conducted by Unifam.

Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

There are no family violence orders.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

These parties have been involved in litigation now for some time. It is not apparent to me that a particular order as sought by one or other party might be least likely to lead to the institution of further proceedings in relation to D.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

Ms X said that the effect on the girls of being cut off completely from their maternal uncles, aunts and grandparents was unlikely to be positive for them. She said that it could have an effect on their identity development and on their mental and emotional well-being.
I infer that in the event that D was to lose his relationship with his maternal family the consequences for him would be likely to be similar.

Discussion and Conclusion about Parenting

There is something to be said in favour of a decision to the effect that D remain primarily resident with his father and spend as much time as would be feasible with his mother. After all, such a decision would continue his existing arrangements and in the home comprising all family members other than his mother, most of whom he has lived with for the entirety of his life. He would continue at his school and maintain his relationships with his friends at school and in his area. It would be surprising if this was not the more comfortable arrangement for D and he has expressed his desire to continue living in such circumstances.
As indicated above, because of D’s age, not much weight could be placed on his expressed view.
Such an arrangement would also have the advantage of offering greater opportunity for him to continue his relationship with his siblings. The Family Consultant emphasised the importance of his relationship with his sisters as referred to above.
In addition, his physical needs would be well attended to. His grandparents would also remain available to him. His grandmother, in particular, would continue to be involved in assisting the husband with delivery of D to school and collection of him after school. It would be unnecessary for him to be enrolled in after school care. He would be able to continue at his school and maintain his existing friends. These matters are clearly important. There would be ample opportunity for him to continue his relationship with his father, his sisters and other close relatives and opportunity for his father to continue his involvement with D’s school and extra curricular activities.
But in my view, the requirements of the legislation compel a different parenting arrangement. As indicated above, the objects of Part VII of the Act which deals with children and the primary considerations which the Court must consider in determining what is in a child’s best interests require the Court to endeavour to put in place arrangements which will be likely to achieve for D a meaningful relationship with both of his parents. The difficulty faced by the Court in this regard is that if D was to remain primarily in the household of his father and the other paternal family members, the Court would have little confidence that he would be able to maintain, let alone further develop, his relationship with his mother. Although it is true that the father, albeit with some difficulty, has been able to achieve D passing into his mother’s care on most formal occasions, in my view it is highly likely, perhaps almost certain, that in time this will no longer be the case.
I say this for a number of reasons. Firstly, the husband and wife have an appalling relationship. The wife said that she has endeavoured to communicate with the husband about the children on many occasions and that nothing has been forthcoming from the husband. Worse still, the relationships between both of D’s siblings and their mother have broken down completely. There has been ongoing conflict and hostility from the husband and the girls to the wife and vice versa. To add to this most worrying situation, there is now no relationship between the husband’s parents and the children’s mother. They had little of a positive nature to say in support of the children’s mother. Somewhat begrudgingly, each of them acknowledged that until shortly before the time of the parties’ separation, she had been a good mother.
There was no evidence from the husband’s brother and sister-in-law who also reside as part of the husband’s household. But there is no reason to think that they would be any more supportive of a continuing relationship between the children and their mother, than the husband and his parents.
B and C have made their position quite clear to the Family Consultant. They are most desirous of remaining resident with their father. They have been quite assertive in expressing their strong view that D should remain living primarily with their father and them.
In my view it must be regarded as a serious lapse in the husband’s parenting capacity, that he has failed to preserve the situation where the girls have been able to have what had been a very close relationship with their mother. His explanation for this was that the wife’s treatment of the girls has been such that it was reasonable and understandable for them to have rejected their mother. This behaviour by the wife was alleged to have consisted of arguments by her towards the girls along the lines that they should be living with her rather than with their father.
It is true that the wife has not shown much insight into the needs of the girls and their difficulties in the circumstances brought about by the breakdown of their parents’ relationship. In my view, however, it would hardly be reasonable for all of the responsibility to be placed with the wife for the breakdown of her relationship with her daughters. A more sensitive and insightful father would have implemented appropriate measures to ensure that the girls were able to continue their relationship with their mother.
In all these circumstances, in my view it would be unrealistic for the Court to have any optimism that the husband would be able to facilitate maintenance by D of his relationship with his mother, particularly bearing in mind the poor view of the wife held not only by him but also by the members of his household. It would therefore seem to be inevitable that obligations on the husband under court orders to continue to deliver the child D into the care of his mother would be contravened. This would inevitably lead to the child’s mother having to use the Court’s enforcement procedures in order to ensure that D would have opportunity for continuing involvement with her. The litigation has been damaging for these children. Clearly it has had a serious effect on the girls and their relationship with their mother. Further litigation would not be in D’s interests or in the interests of any other family member.
In my view, in all these circumstances, the course which the Court must take is clear. This is put in place orders which would require that D live primarily with his mother.
In arriving at this position I have not lost sight of the likely disruption and upset to D involved in changing from his residence primarily with his father, to that with his mother. Ms X referred to the likely consequence of this as referred to above. Having to change schools and move away, at least to some extent, from his friends and acquaintances would also involve some difficulty and disappointment for D. Ms X also said that for a period D would be likely to feel grief and loss for the family circumstances in his father’s household. But the loss of his relationship with his mother would be an enormous loss for D. In my view, this would be too great a price for D to be spared the likely disruption involved in changing his primary residence.
I am also mindful of the opinion of the Family Consultant that if the Court formed the view that it was likely that the husband would be unable to facilitate maintenance of D’s relationship with his mother and the Court considered that the mother would be able to facilitate maintenance of the child’s relationship with his father, then the course which would be consistent with D’s best interests would be to change his primary residence from being with his father to residing primarily with his mother. I am of this view.
While it would have been preferable not to be removing D from residing primarily with his sisters, it is more important for D to be given every chance of maintaining his relationship with his mother. The girls are approximately 10 years older than D. While I accept that sibling relationships are very important and that his sisters are protective of him, their interests are largely different from his and are likely to be even more so as the years go by. In any event, the orders I propose will ensure that there will be ample time for D to continue his relationship with his sisters within their father’s household.
Having arrived at this determination, I return to consider what would be in D’s best interests in order for him to be able to have a meaningful relationship with both his parents. As indicated above, the legislation requires the Court to consider him spending substantial and significant time with his father.

Substantial and Significant Time

The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the children spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
As indicated above, the wife sought orders to the effect that D live with his father after school each alternate Tuesday and Wednesday, alternate weekends, half school holidays and on special days.
Although such orders would fall somewhat short of what would probably be required for substantial and significant time within the meaning of the legislation, in my view such orders would be in D’s interest. This is because such orders would provide appropriate opportunity for D to spend time with his father, his sisters and the other members of his father’s household not only on weekends but regularly after school and during school holiday periods. And in my view, such arrangements would be practicable.

Counselling and Dispute Resolution

The husband applied for various orders to the effect that before either party file any future applications for enforcement or variation of the orders, they be required to endeavour to resolve their dispute through counselling, mediation or family dispute resolution.
In my view, such orders are unnecessary because the provisions of s 60I of the Act have the effect of requiring parents to attempt to resolve their parenting disputes by family dispute resolution before applying for a parenting order, and this includes enforcement.

PROPERTY

The Applicable Law

Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.
Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79. This involves four inter-related steps. Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.

Submissions

The wife

It was submitted on behalf of the wife that in relation to property each party would retain their respective superannuation entitlements and the wife should receive an award amounting to 65 percent of the parties’ property.
It was submitted that the Court would assess the parties’ contributions as having been equal and that there be a set off of property in favour of the wife of 15 percent taking account of relevant sub-section 75(2) matters. This would be on account of the husband having a greater earning capacity than the wife. The other relevant s 75(2) matter would be pursuant to s 75(2)(o), this being on two bases. Firstly, the fact that during the marriage it was the husband who was the main financial contributor to the household and the person who paid most of the mortgage repayments. It was submitted that in these circumstances, the husband could legitimately have an expectation that his greater financial contributions to the mortgage would be recognised by the other family members in the future and that he would ultimately receive a greater share of the family property than would be represented by his holding in accordance with the law.
It was submitted that to the extent that the net proceeds of sale of the Suburb G property might be insufficient to pay the wife in accordance with the Court’s findings, then the husband would be required to pay the balance to her over time.

The husband

Learned counsel for the husband submitted that the assessment of contributions ought to favour the husband. This was on several bases. The first was that the husband’s parents funded the purchase of the land upon which the family home was subsequently constructed from the net proceeds of sale of their property at Suburb M. The second was that the husband’s parents and brother made ongoing financial and non-financial contributions to the household which also consisted of the husband and the wife. Also submitted was that the husband’s mother in particular undertook the major part of the housekeeping and made significant contributions to the parenting of the children.
It was submitted that there ought to be a set off of property in favour of the husband taking account of relevant s 75(2) matters particularly if the husband was to have D living primarily with him pursuant to the Court’s orders.
In relation to the submission that the husband should be found to have made most of the mortgage repayments, it was submitted that the evidence supported his brother sharing in the payments between 2002 and 2008. It was said that the documentary material makes it clear that his brother was making weekly contributions of $380 to payment of the mortgage and that the Court should accept the husband’s oral evidence that this practice simply continued an arrangement which had been in place between the husband and his brother since 2002.

Property available for division

At the commencement of the hearing there was an issue about what happened to two amounts received by the husband from the sale of the parties’ Suburb Q investment property. It is clear that the husband received payments in the sum of $12,321.50 and also in the sum of $6912. Ultimately it became clear that these sums were deposited into the husband’s ANZ Bank account in July and August 2009. And I am satisfied that these monies were disbursed on living costs. The wife conceded that there was no evidence to suggest that these monies had been spent other than for proper family purposes.
The property available for division is as follows:-

Assets

   $

1.         40 percent interest in H Street, Suburb J

256,000

2.         Proceeds of sale of Suburb G, Queensland property

165,000

3.         Motor vehicle 1

6,000

4.         K Club

5.         Motor vehicle 2

20,000

6.         Husband’s CC Pty Ltd shares

3,012

7.         Husband’s boat

5,000

8.         Husband’s savings

1,000

9.         Husband’s household contents

1,000

10.      Wife’s St George Bank savings

1,150

^{_____________}

$458,162

Liabilities

   $

1.         CBA mortgage over Suburb J – 40 percent

63,348

2.         Husband’s ANZ Visa Card

11,217

^{_____________}

$74,565

  Surplus

$383,597

Superannuation

   $

1.         Husband’s Telstra Super

44,072

2.         Wife’s Rollover Fund

1,313

3.         Wife’s AMP Custom Super

39,928

^{_____________}

$85,313

The parties agree that because their superannuation benefits are of fairly similar value the Court should only divide their non-superannuation assets and their liabilities.

Contributions

At the commencement of the marriage the wife’s property consisted of some furniture, personal effects and some savings. She was working full time in a business in Suburb DD.
At this time the husband’s property consisted of a motor vehicle and some personal effects. He was working full time as a tradesman.
As also indicated above, immediately upon the parties commencing their cohabitation they lived with the husband’s parents in the home which the parents owned at Suburb M. They did not pay rent but the husband made financial contributions to his parents by paying some of their bills.
At this time the husband’s parents were both in employment.
Because there has been a lot of financial enmeshment of the parties with the husband’s parents, in order to better understand the relevant contributions which have been made I shall set out, in summary, work histories of the parties and the husband’s parents.
As I have said the husband was working full time at the commencement of the marriage. He remained in full time employment throughout the marriage and continues in full time employment.
In approximately 2000 the husband commenced working with V Pty Ltd. Later he became an executive, the position he works in currently.
As also indicated above the wife was working full time at the commencement of the marriage. In 1996 she commenced working with part time with EE Pty Ltd but she ceased this employment in April 1997 prior to C’s birth.
Between April 1997 and October 1998 the wife remained at home caring for the children and undertaking housework. Then in October 1998 she commenced part time work with T Pty Ltd and continued working in this position until April 2000.
At this time the wife returned to full time home and parenting duties until February 2002. Then she worked full time at W Pty Ltd until October 2010.
Between November 2010 and recently, the wife has worked full time with FF Pty Ltd at Suburb GG. Currently the wife works full-time at HH Pty Ltd.
The husband’s father was working full time with JJ Pty Ltd at the time the wife commenced living as part of his household. The husband’s father continued in this employment until approximately 1997 when his employer became insolvent. This was prior to the family moving into their new home at Suburb J.
The husband’s father was then unemployed until the Suburb J home was completed. He then commenced work as a labourer. He continued working full time in this work until 2005 when he retired from full time employment.
For some time his only income was from the age pension. Then he commenced part time employment as a driver, four hours each day, five days per week during school terms.
The husband’s mother was working full time in the hospitality industry when the wife first started living at her home at Suburb M. The husband’s mother subsequently commenced full time employment with a company called KK Pty Ltd remaining in full time employment with this company and its successor until 1999.
For the next four years the husband’s mother was unemployed after which time she worked full time in a factory at Suburb LL for approximately one year.
Then she was unemployed for approximately two years before commencing work full time with a packaging company from which employment she retired in 2005. The husband’s mother has not since worked in paid employment.
The wife said that she did almost all the housework and almost all the cooking. She said that she cleaned the Suburb J home on both levels including the area occupied by the husband’s parents and brother. She said that this included cleaning the shower in the husband’s parents’ bathroom. The wife said that she did this on her days off work and particularly on Friday evenings. She said that when the girls were old enough they assisted her to do this housework.
The wife said that the husband gave very little assistance with the children when they were babies. He did not change nappies and did not bathe them.
In relation to the cooking, the wife said that the husband’s mother cooked for her husband and the husband’s brother. But the wife said that she always did the cooking for her own family.
On the other hand, the husband’s mother said that when they all lived at Suburb M she did almost all the cooking and most of the cleaning and the washing.
The husband’s mother said that she did the same when they were living at Suburb S although she did say that the wife usually did the vacuum cleaning as well as the washing and ironing for her family.
The husband’s mother said that when the family moved into their Suburb J home the wife did less housework than previously although she continued to do the washing and ironing for her family and occasionally she did the vacuuming. And she said that when she stopped work in 2005 she did almost all of the cooking and household work including the washing and ironing for the wife and her family.
The husband’s mother also said that during the last three years prior to the wife leaving the home, the wife virtually lost interest in her family and virtually stopped doing any work around the home.
It is impossible to reconcile these quite disparate accounts. I shall refer to this again below.
The wife said that from the time she commenced living with the husband and his parents, she saw the husband’s father hand his bills to the husband for payment by the husband “many times”. She said that when she asked the husband why he was paying his parents’ bills he replied that he was doing this because they could not afford to pay their bills. The husband denied this.
The wife said that when they rented the property at Suburb S the husband was paying the major part of the rent.
I must say that I accept much of the thrust of what the wife said in this regard. The husband’s father conceded that he handed bills to the husband for payment and that the husband paid these from the husband’s money. The husband’s father would not concede that this occurred nearly as often as was asserted by the wife. The husband confirmed that he paid bills for his parents.
It is impossible to know the full extent of this.
The husband and his father said that the husband’s father paid all the rent for the Suburb S property. One could not rule out entirely the possibility that the husband’s father paid some of the rent for this property. But he had used the proceeds of sale of the Suburb M home to fund the purchase of the Suburb J land. In addition the husband’s father had lost his employment at approximately this time and was unemployed at least for some of the time while the family lived at Suburb S. So he would appear to have had only limited funds from which to pay the rent for the whole period as asserted.
The husband said that he and his brother paid the mortgage payments. The wife disputed this. She said that the husband paid most of the mortgage payments. It was clear from deposit receipts tendered in evidence by the husband that his brother was depositing half the money required for the mortgage repayments into the husband’s ANZ Bank account. The husband said that this had been their practice since at least 2002.
The husband did not place before the Court any evidence from his brother. Nor did he tender any other documents to support his assertions about this matter. But despite having some misgivings about the husband as a witness, I regard it as being more probable than not that the husband’s brother had been contributing to the mortgage over more years than the wife would concede.
Having said this, doing the best I can in difficult circumstances, I consider it to be more probable than not that the husband has made a greater contribution than one-half to the totality of payments made in respect of the mortgage over the Suburb J home. After all, he has been by far the highest income earner in the family.
And as I have said, it is clear that he has made significant financial contributions on behalf of his parents and his brother over the years.
But when weighing the significance of these contributions on their behalf, the Court must not lose sight of the fact that the husband’s parents also made significant contributions on behalf of the husband and the wife and their children. These were by way of the rent-free accommodation at their Suburb M home, provision from time to time of food and household supplies, undertaking some of the cooking and cleaning, and some of the care of the children. By far the most significant financial contribution made by the husband’s parents to the parties was their gift of a 40 percent interest in the Suburb J land. At the time this had a value of $40 000. In my view, this must be regarded as going a long way towards offsetting the financial contributions made by the husband on their behalf.
As indicated above, it was submitted on behalf of the wife that the Court should assess the parties’ contributions overall as having been equal, at least to the time of separation of the parties.
On the other hand, as also indicated above, there was a strong submission to the effect that the contributions by the husband and on his behalf overall have been greater than 50 percent. This was said to have been on the basis that each of his parents have made significant financial and non-financial contributions in relevant areas over the entire duration of the marriage and continuing to the date of hearing.
The assessment of contributions in this case is somewhat more involved than in many matters which come before the Court. This is because of the enmeshed living and financial arrangements inherent in the fact that the husband and wife lived their married life as part of the broader household comprising the husband’s parents, his brother and, in more recent times, the husband’s brother in law and their two children.
The accounts of their individual contributions given by the husband, the wife and the husband’s parents are somewhat difficult to marry with one another. I have no doubt that this is because individual perceptions of what each person did by way of their financial contributions and their contributions to the welfare of the family and as homemakers and parents appear not to be commensurate with what could possibly have been done by each of them. In other words, to take literally what each of them said they did and to add these together, would amount to a total well in excess of 100 percent of the contributions within the household. So it must be the case that to some extent each of the parties and the husband’s parents have exaggerated the level of their contributions.
In the absence of a very detailed accounting of all financial and other contributions, all this Court can do is to form an overall view, based on somewhat of a guarded interpretation of what each witness has said they did, keeping an eye on the opportunities they had for making their contributions.
Bearing in mind the fact that the parties cohabited for more than 17 years, that they raised three children to their present stages of development, that both parties worked in paid employment, that the husband and wife made contributions to the welfare of the husband’s parents and other family members and that in turn those family members made contributions to the benefit of the husband, the wife and their children, in my view the appropriate assessment of contributions overall is that they have been equal.

Sub-section 75(2) Matters

The wife is 40 years of age and in good health. She is working full-time in administration at HH Pty Ltd. Her income is $1262 per week. On present indications the wife should be able to continue in employment of this nature for the foreseeable future.
The wife is living with her parents although there was some suggestion that the wife might rent her own home.
On the other hand the husband is 41 years of age and he is in good health. He is working full-time as an executive with V Pty Ltd. His income from this employment is $1979 per week.
Both parties have superannuation, the wife approximately $41 000 and the husband approximately $44 000. They should be able to build on these interests to assist them in their later years.
The wife will have the primary responsibility for parenting D and the husband will have that in relation to B and C.
There will have to be a change in child support assessment. It is not clear to me whether either parent would be assessed to pay child support given that each has responsibility for the children.
In my view there are relevant matters which would require a set-off of available property in favour of the wife. The first is that there is some differential in terms of the parties’ income-earning capacity, the husband’s being stronger than that of the wife.
Secondly, the husband will continue to live with his parent and the other family members of his household. They will no doubt provide him with assistance particularly with the children. But most significantly, the wife will have the primary care of D. Because he is much younger than his sisters, one would expect that the wife will have his primary care for considerably longer than the husband will have that of his elder sisters.
In all the circumstances, in my view, to make a just and equitable order will require a set-off of property in favour of the wife. The pool of property is very modest it being $383,597 as I have said. In my view the appropriate set-off of property in favour of the wife is 8 percent.

Conclusion

The wife is to have 58 percent of the available property. This is property with a value of $222 486 (58 percent of $383 597 = $222 486).
The only property which the wife has is her St George Bank savings of $1150. If the wife was to have the entirety of the proceeds of sale of the Suburb G, Queensland property she would then have property with a value of $166 150 ($1150 + $165 000 = $166 150). To achieve property with a value of $222 486 the wife would require additional property with a value of $56 336 ($222 486 - $166 150 = $56 336). This could be achieved by the husband paying to the wife the sum of $56 336.

On the other hand, the husband is to have 42 percent of the available property. This is property with a value of $161 111 (42 percent of $383 597 = $161 111).
The husband has the following property:

Assets

   $

1.         Motor vehicle 1

6,000

2.         K Club

3.         Motor vehicle 2

20,000

4.         CC Pty Ltd shares

3,012

5.         Boat

5,000

6.         Savings

1,000

7.         Household contents

1,000

^{_____________}

$36,012

But the husband also has his ANZ Visa Card debt of $11 217. So he has net property with a value of $24 795 ($36 012 - $11 217 = $24 795).
The equity in the parties’ 40 percent interest in the Suburb J property is $192 652 ($256 000 - $63 348 = $192 652). If the wife was to transfer her interest in the Suburb J home to the husband his net property would have a value of $217 447 ($24 795 + $192 652 = $217 447).
If the husband was to pay the wife the sum of $56 336 he would then have property with a value of $161 111 ($217 447 - $56 336 = $161 111).
On this basis, the wife would have $221 336 which she could use for the deposit on a home, or use to pay rent or in which ever way she might desire. She would be able to continue in her employment which would be sufficient to fund a reasonable standard of living for herself and D.
On the other hand, the husband would have his property including his interest in the Suburb J home subject to payment to the wife of the modest sum of $56 336. The husband would continue his comparatively well-paid employment and should not find it difficult to pay this amount to the wife. He would have the capacity to support himself and the girls at a standard of living which would be reasonable in all the circumstances.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 5 October 2012.

Associate:

Date: 5 October 2012

[2012] FamCA 912

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Assets	$
1. 40 percent interest in H Street, Suburb J	256,000
2. Proceeds of sale of Suburb G, Queensland property	165,000
3. Motor vehicle 1	6,000
4. K Club
5. Motor vehicle 2	20,000
6. Husband’s CC Pty Ltd shares	3,012
7. Husband’s boat	5,000
8. Husband’s savings	1,000
9. Husband’s household contents	1,000
10. Wife’s St George Bank savings	1,150
^{_____________}
$458,162

Liabilities	$
1. CBA mortgage over Suburb J – 40 percent	63,348
2. Husband’s ANZ Visa Card	11,217
^{_____________}
$74,565
Surplus	$383,597

Superannuation	$
1. Husband’s Telstra Super	44,072
2. Wife’s Rollover Fund	1,313
3. Wife’s AMP Custom Super	39,928
^{_____________}
$85,313

Assets	$
1. Motor vehicle 1	6,000
2. K Club
3. Motor vehicle 2	20,000
4. CC Pty Ltd shares	3,012
5. Boat	5,000
6. Savings	1,000
7. Household contents	1,000
^{_____________}
$36,012