KYRIAKOU & ZENAKIS

FAMILY COURT OF AUSTRALIA

KYRIAKOU & ZENAKIS

[2017] FamCA 420

FAMILY LAW – CHILDREN – Final orders – Parental responsibility – whether the presumption of equal shared parental responsibility should apply – best interests of the child – where parties able to communicate mundane topics – where parties in dispute about the child’s medical treatment – where the presumption of equal shared parental responsibility should not apply – where the wife should exercise parental responsibility in respect of the health of the child – where the parties should share the parental responsibility for all other aspects.

FAMILY LAW – CHILDREN – With whom the child lives – best interests of the child – meaningful relationship with both parents – where little weight given to the views of the child – where parties separated when the child was two years old – where the child now has half-siblings and step-siblings – where the child has settled into a routine – orders for the child to live with the wife and spend time with the husband – child’s time with the husband to be gradually increased over the next two years.

FAMILY LAW – PROPERTY – Final orders – alteration of property interests – just and equitable – consideration of contributions by the parties and parties’ future needs – where the wife receives 52.5 per cent of the total asset pool – where the husband receives 47.5 per cent of the total asset pool.

FAMILY LAW – COSTS – Where wife was successful in an application for costs – where quantum of costs was reserved for final hearing – where the wife sought costs on an indemnity basis – order for costs as the Court thinks fit – where husband was unsuccessful but argument was a legitimate area of contention – where husband ordered to pay costs on a party/party basis.

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife has a need for spousal maintenance – whether the husband has the capacity to pay – where husband will shortly discharge debts – where an order for spousal maintenance is made – where order is not open-ended.

FAMILY LAW – CHILDREN – Change of name – best interests of the child – Where wife seeks a change of the child’s surname to reflect both parents – where wife’s surname should be reflected in the child’s name – where no change of surname.

Evidence Act 1995 (Cth) s 138

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 117

Family Law Rules 2004 (Cth) r 19.08

Listening and Surveillance Devices Act 1972 (SA) s 4

Telecommunication Interception and Access Act 1979 (Cth)

Beckham & Desprez [2015] FamCAFC 247

Blanding & Blanding [2016] FamCAFC 21

Bremner & Bremner (1995) FLC 92-560

Chapman & Palmer (1978) FLC 90-510

Chappell & Chappell (2008) FLC 93-382

Chorn & Hopkins (2004) FLC 93-204

Doherty & Doherty (2014) FLC 93-571

Gosper & Gosper (1987) FLC 91-818

Kessey & Kessey (1994) FLC 92-495

Money & Money (1995) FLC 92-485

MRR v GR (2010) 240 CLR 461

Newlands & Newlands (2007) 37 Fam LR 103

NMFM Property Pty Ltd v Citibank Limited (No 2) (2001) 109 FCR 77

Pearce & Pearce (1999) FLC 92-844

Pellegrino v Pellegrino (1997) FLC 92-789

Prantage & Prantage (2013) FLC 93-544

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Kyriakou

RESPONDENT:	Mr Zenakis
FILE NUMBER:	ADC	1306	of	2014

DATE DELIVERED:

15 June 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

19, 20, 21, 26 & 27 September 2016,
4, 5, 6 & 7 October 2016 , 16 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC
Ms Tinning

SOLICITOR FOR THE RESPONDENT:

Barnes Brinsley Shaw Lawyers

Orders

That all previous parenting orders be discharged.
That the parties have shared parental responsibility for B born … 2011 subject to paragraph 2 hereunder.
That the wife do have sole parental responsibility in respect of health issues affecting the child subject to a requirement that she will advise the husband in writing (electronically or otherwise), provide her views about any major issues affecting the child’s health (including dental) and shall consult with the husband about such issues but if no agreement is reached between the parties THEN the wife shall make the final decision and advise the husband in writing of that decision.
The child shall live with the wife.
The child shall spend time with the husband as follows:-
5.1 Until the commencement of the 2019 academic year (for three (3) nights per fortnight):-
5.1.1from the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
5.1.2in the intervening week from the conclusion of school (or 3 pm if a non-school day) Tuesday until 7 pm;
5.2 As and from the commencement of the 2019 academic year (for four (4) nights per fortnight):-
5.2.1from the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
5.2.2in the intervening week from the conclusion of school (or 3 pm if a non-school day) Monday until 9 am the following Tuesday (or the commencement of school).
5.3 During all school holiday periods as follows:-
5.3.1for the 2017 inter-term holidays with the husband for three (3) nights such that the husband’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the third day;
5.3.2for the 2017/2018 and the 2018/2019 Christmas school holidays the husband weekend time shall be extended by one (1) day to 4 pm on the fourth day;
5.3.3for 2018 inter-term holidays with the husband for four (4) nights such that the husband’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the fourth day;
5.3.4as and from 2019 for one half of the inter-term holidays and on a week about basis for the Christmas school holidays.
That the child spend time with the parties on special occasions as follows:-
6.1 On Mother’s Day and Father’s Day in each year;
6.1.1between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day the child will spend with the wife;
6.1.2between 5 pm on the Saturday preceding Father’s Day until 5 pm on Father’s Day the child will spend time with the husband;
6.2 On the child’s birthday being … in each year:-
6.2.1If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with her, then the child will spend time with the husband from 2 pm until 7 pm;
6.2.2If the child’s birthday falls on a day that is not a school day and the husband has the care of the child, then the child will spend time with the wife from 2 pm until 7 pm;
6.2.3If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child, then the child will spend time with the husband from the conclusion of school until 6.30 pm;
6.2.4If the child’s birthday falls on a school day and the husband has the care of the child, then the child will spend time with the wife from the conclusion of school until 6.30 pm.
6.3 At Easter:-
6.3.1In the event that Greek Orthodox Easter coincides with the Roman Catholic Easter:-
6.3.1.1In 2019 and in each alternate year thereafter, the child will spend time with the wife from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday, until 5 pm on Easter Saturday, and with the husband from 5 pm on Easter Saturday until 5 pm on Easter Monday;
6.3.1.2In 2018 and in each alternate year thereafter, the child will spend time with the husband from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday, until 5 pm on Easter Saturday, and with the wife from 5 pm on Easter Saturday until 5 pm on Easter Monday;
6.3.2In the event that Greek Orthodox Easter does not coincide with the Roman Catholic Easter:-
6.3.2.1In 2019 and in each alternate year thereafter, the child will spend time with the wife from the conclusion of school (or 4 pm if not a school day) on Holy Friday until 5 pm on Easter Saturday, and with the husband from 5 pm on Easter Saturday until 5 pm on Easter Sunday;
6.3.2.2In 2018 and in each alternate year thereafter, the child will spend time with the husband from the conclusion of school (or 4 pm if not a school day) on Holy Friday until 5 pm on Easter Saturday, and with the wife from 5 pm on Easter Saturday until 5 pm on Easter Sunday;
6.4 At Christmas:-
6.4.1In 2018 and in each alternate year thereafter, the child will spend time with the husband between 3 pm on 24 December until 3 pm on 25 December and with the wife between 3 pm on 25 December until 3 pm on 26 December;
6.4.2In 2017 and in each alternate year thereafter, the child will spend time with the wife between 3 pm on 24 December until 3 pm on 25 December and with the husband between 3 pm on 25 December until 3 pm on 26 December.
6.5 Such other time as may be agreed.
That the husband’s time with the child pursuant to paragraph 5.1 and 5.2 shall be suspended during all inter- term school holiday periods and from 2019 the Christmas school holidays, Easter (including Greek Orthodox Easter) and Christmas other than as provided for by these orders.
That each parent be at liberty to travel interstate with the child providing they give the other party no less than thirty (30) days in writing and provide the other parent with all relevant flight and accommodation details and contact phone numbers.
That the child be permitted to travel overseas with each parent as agreed between the parties in advance in writing or otherwise as ordered by this Honourable Court.
That each party be restrained and an injunction granted restraining them from denigrating the other or any member of the other’s family to or in the presence of the child or allowing any other person to do so.
That the parties use their best endeavours if it is appropriate and convenient to coincide the cycle of the child’s weekend time with the husband with the cycle of time that the husband’s step-children are in the care of the husband and his partner.
That handovers of the child shall occur at the child’s school but otherwise inside the Suburb C Police Station or at such other place as the parties may agree.
That the wife do facilitate the child receiving a telephone call each Wednesday at about 5 pm from the husband and in the event that the child is not available at the scheduled time the wife do facilitate the call occurring as soon as it is reasonably practicable to do so.
That in the event of the child spending more than three (3) consecutive nights in the care of the husband, then he shall facilitate the child receiving a telephone call from the wife on the third night of such period or at such other time as may be reasonably practical.
At the wife’s election, the parties do all things necessary and sign all paperwork within fourteen (14) days of the date of this order as shall be required to register with respect to the child’s name a Change of Name Application at the office of Births, Deaths and Marriages, including a request for the child’s birth certificate to be issued to include the name “Kyriakou” as a middle name (as distinct from a change in the surname), such that the child will be known as B KYRIAKOU ZENAKIS.
That the wife meet the payment of any lodgement fee with respect to the said change of name application.
That the parties do all things necessary to enrol the child at D School for her primary education.
That with respect to the secondary education of the child:-
18.1 At the commencement of the child’s Grade 5 education (in 2022), each party nominate and advise the other in writing of their three (3) preferred high schools for the child’s secondary education, with at least one (1) to be a public school and one (1) to be a private school NOTING that if the child is enrolled in a private school THEN the husband will be wholly responsible for the financial obligations of the child’s school fees, application and enrolment fees, tuition fees and charges, and uniform and school related/extra-curricular activities.
That the parties be restrained and an injunction is granted restraining them from contacting each other by text message other than as relates to urgent or emergency circumstances relating to the child or in the case that one party is going to be ten (10) minutes or more late to handover.
That the parties communicate via a communication book (either in writing or electronically transmitted) in relation to the child.
That the wife shall inform the husband of the identity and contact details of any health professional (including dental) involved with the child and shall authorise the health professionals to communicate with the husband and to release any information to him as he may request.
That in full and final settlement of all claims that either party has against the other by way of property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended):-
22.1   That on or before sixty (60) days from the date of this order the husband do pay to the Trust Account of Tindall Gask Bentley solicitors for and on behalf of the wife the sum of THREE HUNDRED AND THIRTEEN THOUSAND NINE HUNDRED AND TWENTY TWO DOLLARS ($313,922) (“the settlement sum”);
22.2   That contemporaneously with the payment of the settlement sum in paragraph 21.1 the wife do all such acts and things and shall sign all such documents as may be necessary to transfer to the husband her interest in the property situate at E Street, Suburb C comprised in Certificate of Title Register Book Volume … Folio … (“the Suburb C property”);
22.3   That contemporaneously with the transfer of the wife’s interest in the Suburb C property to the husband he shall do all such acts and things and sign all such documents as may be necessary to discharge the mortgage to Citibank (account number …20);
22.4   That the parties do all things necessary in their capacity as trustee of the Mr Zenakis Family Trust (“the Family Trust”) to cause the property situate at F Street, Suburb C (“the F Street property”) to be sold to Ms and Mr G (“the husband’s sister and brother-in-law”) for the sum of FOUR HUNDRED AND FIFTY THOUSAND DOLLARS ($450,000);
22.5   That any costs associated with preparing the F Street property for sale shall be shared equally between the parties;
22.6   The proceeds of sale from the sale of the F Street property be distributed as follows:-
22.6.1 To repay the costs of sale;
22.6.2To pay any capital gains tax incurred with respect of the sale of the property;
22.6.3To discharge the mortgage to the Commonwealth Bank (account number …18); and
22.6.4To each of the parties as to 52.5 per cent to the wife and 47.5 per cent to the husband.
22.7That the parties do all things necessary to cause the property situate at H Street, Suburb I comprised in Certificate of Title Register Book Volume … Folio … (“the Suburb I property”) to be placed on the market for sale with an agreed agent.
22.8That pending the sale of the Suburb I property the husband do maintain the property in a good and proper state.
22.9That the parties follow the reasonable recommendations of the agreed agent with respect to the sale of the Suburb I property and the preparation of the property for sale.
22.10That any costs associated with preparing the Suburb I property for sale shall be shared equally between the parties.
22.11That the proceeds of sale from the sale of the Suburb I property shall be distributed as follows:-
22.11.1          To repay the costs of sale;
22.11.2To each of the parties as to 52.5 per cent in favour of the wife and 47.5 per cent in favour of the husband.
22.12In relation to the Mr Zenakis Trust (“the Family Trust”):-
22.12.1The wife shall do all acts and things and sign all documents as may be necessary to resign as a Trustee of the Trust;
22.12.2The wife shall transfer and/or assign any credit loan account which she may have in the Trust to the husband;
22.12.3Thereafter, the husband indemnifies and shall forever indemnify the wife with respect to the Trust including but not limited to any debit loan account which the wife may have in the Trust.
22.13That both parties be restrained and injunction granted restraining them from accessing or withdrawing any funds from the child’s Commonwealth Bank Youth Saver Account (number …63) without the prior written consent of the other NOTING that when the child attains the age of eighteen (18) years she shall be the sole legal and equitable owner of the said account.
22.14That the husband shall forthwith sell the shotgun, the rifle 1 and the rifle 2 with the sale proceeds to be divided between the parties as to 52.5 per cent to the wife and 47.5 per cent to the husband.
22.15That the parties do all such acts and things and sign all such documents as may be necessary to close the Commonwealth Bank Complete Access account number …05 with the balance remaining to be paid to the Trust Account of Tindall Gask Bentley Solicitors for and on behalf of the wife as part of the settlement sum provided for in paragraph 21.1 herein.
22.16That as and from the date of this order the wife’s estate and interest both at law and in equity in the following be and the same are hereby vested in the husband to the intent that the husband shall retain the same for his sole use and benefit free from any further claim or demand by the wife:-
22.16.1His interest in Zenakis Pty Ltd as trustee for Zenakis Unit Trust;
22.16.2         His interest in the 4WD;
22.16.3His interest in the motor scooter;
22.16.4His interest in the boat;
22.16.5The savings and investments in his sole name;
22.16.6The equipment, furniture, furnishings and articles of domestic use and ornament currently in his possession;
22.16.7His personal effects;
22.16.8His long service leave, annual leave and other work related benefits;
22.16.9Any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession not otherwise specified herein.
22.17That as and from the date of this order the husband’s estate and interest both at law and in equity in the following be and the same are hereby vested in the wife to the intent that the wife shall retain the same for her sole use and benefit absolutely and free from any further claim or demand by the husband:-
22.17.1The motor vehicle in her possession;
22.17.2The savings and investments in her sole name;
22.17.3The equipment, furniture, furnishings and other articles of domestic use and ornament currently in her possession;
22.17.4           Her personal effects;
22.17.5           Her superannuation;
22.17.6Her long service leave, annual leave and other work related benefits;
22.17.7Any other liability and/or personal property and/or financial resources of the wife in the wife’s name and/or possession not otherwise specified herein.
22.18As and from the date of this order each party shall indemnify the other and keep the other forever indemnified with respect to any liabilities, past, present or future which have accrued or shall accrue from time to time in their respective names.
That the husband shall pay spousal maintenance to the wife at the rate of ONE HUNDRED DOLLARS ($100) per week for a period of thirty six (36) weeks from the date of this order, which payment shall be capitalized in the amount of THREE THOUSAND SIX HUNDRED DOLLARS ($3,600), which lump sum shall be paid contemporaneously with the payment of the settlement sum in paragraph 21.1.

That the husband pay the wife’s costs in the sum of FIVE THOUSAND DOLLARS ($5,000) which lump sum shall be paid contemporaneously with the payment of the settlement sum in paragraph 21.1.
The appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1306 of 2014

Ms Kyriakou

Applicant

And

Mr Zenakis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The proceedings relate to the parenting arrangements of the parties only child B born in 2011 (“the child”) and to the division of property and spousal maintenance.
The applicant is Ms Kyriakou (“the wife”) and the respondent is Mr Zenakis (“the husband”).
The proceedings in relation to parenting arrangements were initiated by the wife by Initiating Application filed 9 April 2014. The wife now relies on her Further Amended Initiating Application dated 3 August 2016. The wife seeks orders that she have sole parental responsibility and that the child live with her and spend time with the husband.
By way of final property settlement, the wife seeks 70 per cent of the matrimonial asset pool including her motor vehicle and superannuation. The wife further seeks payment of spousal maintenance by the husband of $204.00 per week.
The husband opposed the orders sought by the wife by Further Amended Response dated 29 August 2016.
The husband seeks equal shared parental responsibility and a graduated approach to time with the child commencing with four nights per fortnight in 2017 and increasing to six nights per fortnight by 2019.
The husband also seeks 65 per cent of the matrimonial asset pool and the dismissal of the wife’s spousal maintenance application. He seeks an equalisation of the parties’ superannuation.
When the parties separated the child was aged two years and two months. Given her age, the child spent limited, but regular, time with the husband post separation.
The wife asserts that the child suffers from separation anxiety, particularly during her time with the husband.
The husband denies this assertion and states that this is a strategy of the wife’s designed to reduce his time with the child. The husband further states that this strategy demonstrates the wife’s inability to sever her interests from the best interests of the child.
The wife alleges the relationship with the husband was characterised by family violence. The wife submits that the husband was controlling of her interactions with family and friends to the extent that the wife could not put the child down on the floor at the maternal grandparents’ home and he displayed aggressive behaviour towards her throughout the relationship.
The wife seeks to change the child’s surname to reflect both parents. The wife is indifferent whether the surname is recorded as “Zenakis-Kyriakou” or “Kyriakou-Zenakis”.
The wife wants the child to attend D School. The wife further seeks that, as part of her sole parental responsibility, she determine where the child will attend secondary school and that the wife will raise three schooling options with the husband. If the husband wishes the child to attend a private secondary school, then the wife submits that the husband shall bear all expenses associated with the secondary school education including uniform and extra-curricular activities.
The husband wants the child to attend J School for both her primary and secondary education. In the alternative, he seeks that the child attends K School. The husband contends that the paternal grandparents will pay the tuition fees of the child’s private secondary school education.
The asset pool of the parties is largely undisputed save for cash retained by the husband upon separation and the ownership of various motor vehicles. Both parties made substantial contributions to the matrimonial asset pool.
In relation to the division of the matrimonial asset pool, the parties agree that the wife shall transfer her interest in E Street, Suburb C (“the Suburb C property”) to the husband and her interest in Zenakis Pty Ltd.
In relation to the child’s Commonwealth Bank Youth Saver account (account number …63), the wife submits that she hold such money on trust for the child until she attains the age of 18. Both parties seek that they should be restrained by injunction from withdrawing funds from this account without prior written consent from the other party.
Pursuant to the order made 13 October 2015, the wife seeks that the husband pay the costs relating to the Optus subpoena, being $8,300.22. She further seeks the husband pay 50 per cent of the setting down and daily hearing fees.
The husband seeks that the wife reimburses him for one half of the valuation costs borne by him during these proceedings, namely $9,757.50.

DOCUMENTS RELIED UPON BY THE PARTIES

The wife relies upon the following documents:-
(1)Trial Affidavits filed 29 July 2016 and 12 September 2016
(2)Financial Statement filed 3 August 2016
(3)Amended Initiating Application filed 3 August 2016
(4)Affidavit of Ms L (“maternal aunt”) filed 18 July 2016
(5)Affidavit of Ms M filed 18 July 2016
(6)Affidavit of Mr N Kyriakou (“maternal grandfather”) filed 28 July 2016
(7)Affidavit of Dr O (“psychiatrist”) filed 28 July 2016
(8)Affidavit of Ms P (“psychologist”) filed 28 July 2016
(9)Affidavit of Dr Q filed 29 July 2016
(10)Affidavit of Mr R filed 16 August 2016
(11)Affidavit of Ms S (“wife’s solicitor”) filed 29 August 2016
(12)Affidavit of Mr T (“accountant”) filed 17 August 2016
The husband relies upon the following documents:-
(1)Further Amended Response filed 29 August 2016
(2)Trial Affidavit filed 29 August 2016
(3)Financial Statement filed 26 August 2016
(4)Affidavit of Mr U filed 29 August 2016
(5)Affidavit of Mr V Zenakis (“paternal grandfather”) filed 25 August 2016
(6)Affidavit of Dr W (“psychologist”) filed 25 August 2016
(7)Affidavit of Dr X filed 25 August 2016
(8)Affidavit of Ms Y (“husband’s partner”) filed 26 August 2016
(9)Affidavit of Ms Z (“husband’s sister”) filed 26 August 2016
(10)Affidavit of Dr AA filed 26 August 2016
(11)Affidavit of Ms CC (“husband’s solicitor”) filed 26 August 2016
(12)Affidavit of Mr BB filed 26 August 2016

CHRONOLOGY

1983

The husband born (age 34)

1985

The wife born (age 32)

2002

Parties commence a relationship

2007

Date of marriage

2007 – 2009

Parties live with parental grandparents for 18 months whilst building their own home

2011

The child is born

2012

The wife diagnosed with Crohn’s disease

7 October 2013

Parties separate

8 October 2013

The wife vacates the former matrimonial home

10 October 2013

The wife reports to police about the husband’s threats made to her and her family

30 October 2013

The husband consults with Dr W (psychologist)

11 November 2013

The parties attend mediation. The parties reach agreement regarding the husband’s time with the child

19 November 2013

The husband commences contact with the child each Tuesday (3 hours)

23 November 2013

The husband commences contact with the child each Saturday (3.5 hours)

26 November 2013

The wife starts consulting with Ms P (psychologist)

31 December 2013

The husband’s time with the child on Tuesday’s is extended to 4 hours

4 January 2014

The husband’s time with the child on Saturday’s is extended to 4 hours

March 2014

The wife starts consulting with Ms DD (psychologist)

1 April 2014

The husband consults with Ms DD

5 April 2014

The child does not present for handover, the wife asserts the child was extremely distressed and did not want to attend handover

8 April 2014

The husband’s time with the child each Tuesday is reduced to 2 hours. The wife asserts that the child’s separation anxiety improves

10 April 2014

The husband completes the ‘Kids are First’ parenting program

24 July 2014

The first family assessment report

6 August 2014

The child commences spending time with the husband each Wednesday (4 hours)

28 August 2014

Husband completes “Mum’s house, Dad’s house” program

20 October 2014

Orders made that the child spend each Wednesday (5 hours) and overnight time with the husband

1 December 2014

The wife reports that the child is transitioning into her own bed

8 December 2014

Divorce Order granted

January 2015

The wife reports the child has slept in a toddler bed on 6 occasions before the first overnight visit with the husband

6 February 2015

The child commences overnight time with the husband

February 2015

The wife alleges the child is regressing with independent sleep and requires co-sleeping with the wife, the wife reports the child appeared worried/stressed and has regressed with toilet training

14 February 2015

The husband reports having no difficulty with the child spending overnight time

March 2015

The husband completes “Positive Parenting” course at Centacare

March 2015

The husband concludes counselling with Dr W

23 March 2015

The wife files interim application seeking suspension of the husband’s overnight time and in lieu contact each Sat 12 pm –5 pm

2015

Husband and partner’s child, EE, born

9 April 2015

The second family assessment report

May 2015

The wife reports the child makes verbal comments directed at her after each visit with the husband, for example; “… [the husband] says you’re bullshit”

June 2015 -

The wife alleges the child complains of stomach aches on the way to spending time with the husband

September – October 2015

The wife informs the husband of her concern about the child’s disturbed sleeping pattern

3 November 2015

The wife attends upon Dr FF with the child. The wife provides a summary of that attendance in the communication book on the 4 November 2015

9 November 2015

The wife proposes to the husband that the child undergo the surgery recommended by Dr FF

14 November 2015

The wife provides a copy of Dr FF’s report to the husband

11 December 2015

The wife takes the child to a sleep study session

30 January 2016

The child rubs her genitals on the bedrail and later on the wife’s legs. The child reports that Mr GG showed her on his chair. The child reports that the paternal grandfather requested that she wiggle

31 January 2016

The wife reports the child’s disclosures to the police

1 February 2016

The child commences transitioning to attending kindergarten at D School on Tuesday’s and Thursday’s (8.45 am – 3.15 pm)

February 2016

The wife commences consulting with Dr O (psychiatrist)

22 February 2016

Order that the child attend upon Dr FF for a subtotal tonsil and adenoid reduction

21 March 2016

The wife states that the child returned from a 3 overnight period with the husband complaining of stomach pains

3 May 2016

Child attended upon Dr FF for subtotal tonsil and adenoid reduction

June 2016

The child’s attendance at kindergarten improved such that she rarely cried when the wife left

7 June 2016

Report by wife’s psychiatrist, Dr O

2016

Husband and partner’s child, II, born

22 August 2016

The parties attend upon the family consultant

15 September 2016

The third family assessment report

PROCEDURAL HISTORY

The trial commenced on 19 September 2016 and proceeded for 10 days. I reserved judgment in this matter on 16 November 2016.
By orders dated 8 May 2014, Judge Harland of the Federal Circuit Court ordered the preparation of a Family Assessment Report (“FAR”) by Ms JJ (“family consultant”) to address the living and care arrangements for the child. That report (“the first FAR”) was produced 24 July 2014. Two further family reports prepared by Ms JJ were ordered in these proceedings and were produced on 9 April 2015 (“the second FAR”) and 15 September 2016 (“the third FAR”) respectively.
On 20 October 2014, Judge Harland listed the matter for final hearing to commence on 12 May 2015 and arranged for the child to spend time with the husband each Wednesday from 12 noon until 5 pm and overnight time from 10.30 am Saturday until 10.30 am Sunday. Her Honour also ordered an updated family assessment report.
The trial did not proceed as listed and the proceedings were transferred to this Court by order made 10 June 2015.
The husband filed an Amended Application in a Case seeking to increase the time that the child spends with him from 2 nights to 3 nights per fortnight and sought ancillary orders.
The parties were also not able to agree upon a school that the child should attend in the 2017 academic year.
The husband also sought to reduce his spousal maintenance obligation from $450 per week as ordered by Judge Harland to $150 per week.
The wife filed a Response and sought to vary the current arrangements such that the child would spend time with the husband:-
a)In week 1:-
i)From the conclusion of kindergarten until 6 pm on Thursday, and;
ii)from 10.30 am Saturday until 12.30 pm Sunday
b)In week 2:-
i)from 5.15 pm to 6.15 pm on Tuesday;
ii)from the conclusion of kindergarten until 6 pm on Thursday; and
iii)from 10.30 am Saturday until 12.30 pm on Sunday.
The wife also sought that the child be enrolled at Trinity College, but subject to the husband being responsible for the payment of school fees, the wife would co-operate with the enrolment of the child at KK School and J School.
On 11 December 2015, orders were made that the child spend time with the husband each fortnight from 3 pm (or the conclusion of kindergarten whichever is the earlier) until 7 pm on Tuesday of each alternate week and from 5 pm Friday to 9 am on the following Monday of each alternate week.
Whilst the parties were not to commit the child to commencing attendance at any particular school in the 2017 academic year, nonetheless the parties were to do all things required to enrol the child at KK School, J School or any other school the parties may request.
The parties were not able to agree upon a medical procedure in respect of the child undergoing a sleep study and thereafter a subsequent surgical procedure. Orders were made requiring the parties to do all things necessary to enable the child to undergo a sleep study, but that until further order of the Court they were restrained from engaging the child in any surgical procedure.
On 22 February 2016 it was ordered by consent that the husband was restrained from leaving the child in the presence of the paternal grandfather in the absence of the husband’s direct supervision. The parties were also able to agree that the child attend for a subtotal tonsil and adenoid reduction, with the parties to share equally in the cost of the procedure.
On 22 February 2016 I heard argument in respect of the husband’s application to reduce the level of spousal maintenance paid by him pursuant to the order of Judge Harland on 2 September 2014. On 1 April 2016 I delivered judgment that provided a notation that the husband continue to pay the wife $200 per week by way of child support and ordered that as and from 4 April 2016 the order for spousal maintenance made 2 September 2014 be varied such that the husband pay to the wife interim spousal maintenance in the sum of $202 per week.
On 20 September 2016 being the second day of trial, the parties reached agreement in respect of the sale of the property situated at F Street, Suburb C (“the F Street property”) to be sold to the husband’s sister and brother-in-law for $450,000 being the agreed value.
The parties also agreed that the property at H Street, Suburb I (“the Suburb I property”) should also be sold noting the agreed value at $190,000.
The orders provided for the terms and conditions of the sale of the F Street property and the Suburb I property.
The parties were also able to agree the times that the child would spend with each party on special occasions, those orders as reflected in paragraph 1 of the consent orders and are to be either a notation to the final orders or included in the final orders without the need for further consideration in terms of the following matters:-
a)Mother’s Day and Father’s Day
b)Child’s birthday
c)Easter
d)Greek Easter
e)Christmas
f)Travel
g)Restraining each of the parties from denigrating the other in the presence of the child.
On the last day of trial the parties agreed that the child be enrolled in and attend D School for the 2017 academic year without prejudice to the long-term position of each of them as to where the child should attend both primary and secondary school.

PARENTING PROPOSALS OF THE PARTIES

Counsel for each of the parties filed detailed Case Outline documents.
The orders sought by the wife in her Further Amended Initiating Application filed 3 August 2016 and her Case Outline document can be summarised as follows:-
(1)That the wife have sole parental responsibility for the child.
(2)That the child live with her.
(3)That the child spend time with the husband as follows:-
(a)Until the beginning of 2018, each alternate Tuesday from the conclusion of kindergarten or school (or 3 pm if not a kindergarten or school day) until 7 pm, with handover to occur inside the Suburb LL Police Station at the conclusion of time;
(b)Each alternate weekend from 12 noon Saturday until 5 pm Sunday;
(c)At further and other times as may be agreed;
(d)From the beginning of 2018 in addition to the time on each alternate Tuesday, each alternate weekend from the conclusion of school (or 3 pm if not a school day on Friday until 5 pm Sunday);
(e)At such further and other times as may be agreed between the parties.
(4)In the school holiday period for 2017, time is extended from 3 pm on Friday to 5 pm on Sunday.
(5)As and from the beginning of 2018, the weekend time is extended from 3 pm on Friday to 5 pm on Monday and from 3 pm Thursday until 5 pm Sunday.
(6)It is proposed that in the years 2019 and 2020, time is extended from 33 pm on Friday to 5 pm on Tuesday and from 3 pm on the first weekend and from 3 pm on Friday to 5 pm Sunday of the last weekend.
(7)There is a further extension of time in the year 2021 and each year thereafter. The parties have agreed special occasions.
(8)The wife proposes that the parties communicate via a communication book, or in the case of emergency or urgent communication, then by text message.
(9)The wife proposes to facilitate the child receiving a telephone call from the husband each Wednesday at 5 pm and if the child is with the husband for a period of two consecutive nights, then the husband shall facilitate the child receiving a call from the wife on the second night and if the child spends three, four or five consecutive nights in the care of the husband, then the husband will facilitate receiving a telephone call from the wife on the third night of each such period.
(10)The wife seeks a continuation of the order that the child shall not be left unsupervised in the presence of the paternal grandfather.
(11)She seeks that the parties do all such things as may be necessary to cause the child to have a hyphenated surname to include each of the parties’ respective surnames.
(12)The wife also seeks that the husband’s time with the child is subject to him continuing to consult with a psychologist in relation to anger management, violence, the implications of denigrating the wife and her family and to receive advice in relation to strategies to support the child’s relationship with the wife and her family.
(13)The wife also seeks that the child attend upon a psychologist at her election with the husband to receive feedback at the discretion of the psychologist.

The husband seeks orders as set out in his Further Amended Response and his Case Outline document summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child and that during school term the child shall spend five nights per fortnight with him from the conclusion of school on Friday until the commencement of school on the following Monday and each alternate weekend thereafter, and in the intervening week from the conclusion of school on Monday until the commencement of school on the following Wednesday.
(2)In addition and during all school holidays up until the 2019 academic year for the first three nights in the school holidays and thereafter from 2019 onwards on a week-about basis.
(3)The husband seeks that all handovers that do not take place at the child’s school shall take place at a McDonald’s Restaurant which is three kilometres from the husband’s home at the commencement of his time with the child and three kilometres from the wife’s home at the conclusion of his time with the child.
(4)The husband proposes that the wife facilitate the husband telephoning the child each Wednesday and each alternate Sunday at 6 pm when the child is in the wife’s care.
(5)The husband seeks that the child attend J School as and from the 2018 academic year on the condition that the husband’s parents will meet the costs of the child’s tuition of primary and secondary education.
(6)The husband seeks that the parties attend upon Ms DD for the purposes of co-parent counselling at their joint and equal expense, with the child’s attendance to be at the discretion of Ms DD.
(7)The husband opposes any change to the child’s surname.

BACKGROUND

The husband was born in 1983 and as at the date of trial was 33 years of age. The wife was born in 1985 and was 32 years of age at the date of trial.
The parties met when they were young and commenced a relationship in about 2002 and married in 2007. They did not live together prior to marriage. The parties separated on 7 October 2013 and were divorced on 9 January 2015.
Upon the parties’ separation, the wife vacated the Suburb C property and took up residence with her parents. Both she and the child remain living with her parents at Suburb MM. The husband has remained in the Suburb C property with his current partner.
Since separation the child has lived primarily with the wife and has spent time with the husband pursuant to the provisions of various interim orders.
The wife has not been in paid employment since 2001 and considers that her health is poor, suffering from a range of psychological and physical conditions. Whilst there is some contention by the husband that the wife may well be exaggerating the effect of her various conditions, it is nonetheless apparent that at present, and certainly until these proceedings have concluded, she is unlikely to be fit for paid employment.
In 2014, the husband commenced a new relationship with Ms Y. She has two children of a previous relationship aged nine and seven and there are now two children from her relationship with the husband, namely EE (“EE”) born in 2015 and II (“II”) born in 2016.
Each of the parties appears to have supportive extended family and at one point the wife’s brother Mr NN Kyriakou (“Mr NN”) was employed in the husband’s business. A significant aspect of the conflict between the parties arose because of a breakdown in the employment arrangement between the husband and Mr NN.
The child was born in 2011. I accept that the husband worked hard in his business and usually commenced work before the child was awake. Whilst there is some argument as to when the husband would finish work, I am satisfied that the wife provided the primary care for the child.
Following separation the husband complains that the wife did not let him see the child for a period of 14 days. Thereafter his time with the child was always supervised.
The husband completed a parenting program in April 2014 and when it became apparent that the parties were in dispute in respect of the husband’s time with the child, proceedings were issued and parenting orders were made on 8 May 2014.
The husband is a part-owner of a business known as Zenakis Pty Ltd (“the company”). The company is owned together with his father and brother-in-law. The business was established prior to the parties’ marriage.
The parties are in dispute as to the extent of their contribution towards the care of the child. Whilst the husband concedes that the wife was the primary carer, he also claims to have engaged with the child as much as possible. He alleges that the wife was not a confident parent and when he was not working he would spend as much time with the child as possible. The husband disputes the wife’s assertion that he did not assist with the domestic duties and whilst he concedes that the wife performed the majority of housekeeping, he nonetheless did what he could and on many occasions the family would eat at the home of his parents.
The husband alleges that the wife was controlling and possessive of the child. Each of the parties complains of the other’s excessiveness in respect of cleanliness. The wife complains that the husband had an aversion to animals and that he had a set of “dog rules” whenever the family visited the maternal grandparents property.
The wife alleges that the relationship between the parties was volatile. Arguments were frequent and she considered that the husband’s behaviour was controlling. Prior to their marriage the husband would insist on seeing the wife every day of the week.
She was not permitted privacy and the husband would check her phone for calls and incoming messages.
She alleges that he was jealous and there would often be an outburst where she says that the husband would request that she apologise for her allegedly promiscuous behaviour. He would frequently resort to offensive language and she asserts that he called her “a stupid bitch, you’re fucked in the head” and “you’re fucking useless”.
Both parties agree that arguments in the home were frequent and the wife complains that the husband would often become violent and smash household items.
When he lost his temper, the wife reports that on occasion the husband would hurt himself by hitting his head with a closed fist, hitting his head against an interior wall and, on an occasion late in 2011 when it was suggested by the wife that the child be introduced to formula milk, the husband is alleged to have picked up a kettle and smashed it against his head causing him to fall to the floor and appeared to be in a fit, evidenced by convulsion. On another occasion, the husband picked up a wedding photo and smashed the glass frame against his forehead causing glass to shower down over the child and the wife.
For his part, the husband denies the wife’s allegations and in particular that he hit his head with a fist, against a wall, or with a kettle. The husband alleges that it was the wife who was quick to anger and that it was he who apologised in order to keep the peace.
The parties separated on 7 October 2013 following an argument between the parties in relation to the wife’s family and in particular an ongoing dispute that involved Mr NN and his previous employment with the company.
In the period leading up to separation, the husband was working on the parties’ Suburb I property. A toxic series of text messages passed between the parties and whilst the husband now regrets the content of those messages, the wife relies upon them to corroborate her assertion that the husband is of violent and aggressive disposition.
The husband complains that it was two weeks from the date of separation before the wife would permit him to spend time with the child and then only on the condition of supervision.
The parties were not able to reconcile their differences, nor could they negotiate the parenting arrangements for the child. The husband complains that the wife behaved in a cavalier fashion in determining when and the duration of time that the child would spend with him. The wife counters the husband’s allegation by relying upon her observations of the child; that she appeared to be clingy and demonstrated signs of anxiety upon separation. She alleges that the child expressed a wish not to spend time with the husband or that time spent be significantly curtailed in deference to the child’s emotional stability and young age.
The parties were not able to reach an agreement and proceedings were commenced on 9 April 2014.
The husband completed various parenting courses including “Kids Are First” program at Anglicare, “Mum’s House Dad’s House” program and “Positive Parenting” course at Centacare. He also consulted with a psychologist in terms of parenting counselling and a different psychologist in respect of his personal development.
The wife asserts that following the extension of time with the husband, the child’s conduct and behaviour regressed. On occasion following the child’s return to her care the child wet the bed and the wife places much weight on various reports made by the child as to derogatory remarks made by the husband and members of his family directed at the wife.
The wife was resistive to orders made on 20 October 2014 that as and from 7 February 2015 the child spend overnight time with the husband.
The husband considers that the child was ready for overnight time, had requested to sleep at the husband’s home and that in all respects the time spent with the husband has been uneventful, unremarkable and to the child’s enjoyment. The wife reports a very different observation of the child’s presentation.
She considers that following overnight time with the husband, the child was not able to manage her usual routines, suffered from lethargy and was not able to easily prepare herself for kindergarten. The wife records in considerable detail the extent to which the child slept following overnight time in early 2015.
The wife observed that the child as clingy and when not lethargic presented as being “hyper-aroused”. In general, the wife does not consider that the increase of time between the husband and the child has been to the child’s advantage.
The husband considers that as the child has spent more time in his care she has flourished. She has developed a strong attachment with the husband’s partner, her children and their children.
He observes none of the purported concerning behaviour as noted by the wife. The parties are incapable of resolving their differences in respect of whether the child was or was not settled pursuant to the various interim orders.
The child commenced kindergarten in 2016 and formal school education in 2017. The husband has made an effort to involve himself in the child’s kindergarten.
The wife observed that the transition was initially difficult for the child, but that by early 2016 her behaviour at kindergarten had improved and the anxiety upon separation has lessened.

Child’s medical treatment

Medical treatment in respect of the child has been a source of conflict between the parties. The wife complains that the child suffered from severe constipation in 2016. She does not consider that the husband accepted the potential severity of the problem or its impact upon the child. Whilst the parties apparently communicated with each other via a communication book, the wife considered that the level of detail provided by the husband was inadequate.
The husband considers that the child is fructose and dairy intolerant. He considers that the child’s condition can be easily managed upon medical advice and there is no reason for the wife to hold the view that the child’s diet or health management in the husband’s home is in any way deficient.
The husband took the child to see a paediatrician on six occasions in the period from March 2014 to August 2016.
The parties came into conflict over whether the child needed a tonsil reduction to assist in the child’s breathing at night. The wife obtained a referral to an Ear Nose and Throat (ENT) specialist. The husband countered by taking the child to a paediatrician. The child was medically examined by the husband’s paediatrician and the wife’s ENT specialist. The husband did not agree that the child needed an operation. Ultimately, it was considered that there needed to be more investigation and the child underwent a sleep study on 11 December 2015. The issue of the child undergoing surgery was ultimately determined by Court order. The process of determining whether treatment was required was difficult and resulted in an exacerbation of conflict between the parties.
Whilst the wife alleges that the husband was obstructive, he counters by setting out the efforts that he made to obtain all the relevant information and once properly informed he agreed to the surgery being performed.

Allegation of the paternal grandfather

The wife seeks orders that the child should not be left unsupervised in the presence of the paternal grandfather. The basis of her application is that on 30 January 2016 the child allegedly made a number of disclosures that her paternal grandfather told her to straddle a chair and “wiggle”. When demonstrating the activity to the wife she was observed to rub her genitals on various objects such as bed rails, pool noodles or the edge of the chair or bed or even on a person’s leg.
The wife reported the child’s alleged disclosure and conduct which she considered sexualised to the Child Abuse Report Line.
The child was also taken to a general practitioner and following a history given by the wife the child was subjected to a genital examination.
The husband denies that his father behaved in a sexually inappropriate fashion with the child and considers that the alleged disclosures are either a concoction of the wife, or her hypervigilance has taken a perfectly innocent activity between the child and her grandfather and has now attributed a sinister connotation to what was otherwise innocent conduct.

Change of child’s surname

The wife seeks that there be a change to the child’s surname from “Zenakis” to a hyphenated surname comprising either “Kyriakou-Zenakis” or “Zenakis-Kyriakou”. The wife argues that it is reasonable the child have some connection to her family.
The husband opposes any change in the child’s surname.

Parties’ financial position

At the commencement to the parties’ relationship the husband worked the company. The wife was employed in administration.
The parties are not agreed as to the extent of their contribution at the commencement of the relationship. The husband considers that at the date of marriage he held a one third interest in the company, about $314,000 in a term deposit and an interest in land at the Suburb C property which had been gifted to him by his parents. The wife does not argue that the husband had a valuable interest in the company, but considers that the transfer of the Suburb C property was intended to be a gift to the parties rather than to the husband alone.
It appears that each of the parties’ extended families were generous to them. Contributions were made towards the wedding costs and in early 2008 the husband acknowledges that the wife received a personal injuries payout of $215,000. An amount of $201,000 was deposited by the wife into a joint term deposit account and with the husband’s term deposit and other savings, the parties had accumulated $540,000 some of which was ultimately applied towards the construction of a dwelling at the Suburb C property.
Following marriage, the parties agree that they lived with the husband’s parents for about two years.
Whilst there is a dispute as to the extent to which the parties’ extended family contributed towards the construction of the Suburb C property, not much turns on this aspect of the dispute.
On 28 May 2007 the parties established the Mr Zenakis Trust (“the Trust”). By Deed of Appointment in October 2010, the wife was appointed as a co-trustee with the husband.
In September 2010 the Trust purchased the F Street property for $440,000 financed by a significant deposit and a residual bank loan of $350,000 which was reduced by $200,000 from the parties’ joint savings.
The F Street property has been tenanted and the parties have agreed that it is to be sold.
In November 2011, the parties purchased a block of land, now known as the Suburb I property, with the intent that they would construct a holiday home.

Parties’ legal fees

At the commencement of the proceedings a schedule of costs and disbursements was provided on behalf of each of the parties. The documents now comprise Exhibit “1” in the proceedings.
The total unbilled, paid, unpaid and anticipated legal costs for the wife are $596,738. The legal fees for the husband are likely to be in excess of $420,000.
Each of the parties has borrowed heavily from their families in order to fund the litigation. The wife remains indebted to her parents in the sum of $360,985 and the husband to his family in the sum of $324,327.
Whilst the parties are not in agreement as to the value of their separate legal and equitable interests in property that comprises the pool available for division, it is common ground that the net pool will be slightly in excess of $1,000,000.
The parties’ legal fees both paid and outstanding are of a similar amount.
The proceedings have been financially ruinous to the parties and have been conducted in a manner which apparently demonstrated scant regard for their financial circumstances.

THE WIFE

The wife relied upon her trial affidavits filed 29 July 2016 and 12 September 2016. In preparation for the proceedings, the wife prepared and filed a financial statement on 3 August 2016. As part of the wife’s case, it was foreshadowed that she would rely upon the evidence in the affidavit of Mr OO filed 29 July 2016. Mr OO is an interpreter and his proficiency is as to the translation between the English and Greek languages.
In that capacity he was asked by the wife to consider an audio recording that had been made and to provide a transcript of the recording, in particular where the language recorded was perceived to be Greek. He was instructed to provide the English translation.
The recording that he received was of three minutes and thirty seconds duration.
The subject matter of the audio recording derives directly from the affidavit evidence of the wife as contained in paragraphs 288 to 300 of her 29 July 2016 affidavit.
She says that on 29 June 2016 the husband was due to speak to the child at 12 noon. The wife had forgotten that the husband would be calling and had made alternate arrangements for the child and the maternal grandmother to attend the local library. She sent a message to the husband advising that the child would call him as soon as she returned home. Following the child’s call to her father at 1.02 pm, the wife alleges that she received a telephone call from the husband’s phone. It is a reasonable inference that the call was unintended and in the course of evidence was described as a “pocket call”.
The call lasted six minutes and twenty three seconds and the wife alleges that she heard the husband say a number of offensive and threatening remarks about her to another person.
Via a phone application (a recording app), the wife’s phone automatically recorded the conversation. It is that recording that was considered by the wife’s interpreter.
The relevance of the recording is that it provides corroboration for the wife’s allegation that in the husband’s home and in the presence of the child she is referred to in disparaging terms. She assets that the evidence further, notwithstanding the husband’s protestations of the advantage gained by attending various parenting courses, speaks to the wife’s anxiety over her dealings with the husband and the parenting arrangements in respect of the child.
In evidence the wife conceded that she listened to the call for the first three minutes and thirty seconds, but thereafter without disconnecting the line ceased to listen to the conversation.

The wife conceded that she had downloaded a phone application which would automatically record all conversations between the wife and any caller. It was not contact specific and it was therefore a matter of election by the wife at some later stage whether she deleted or retained the call recordings. The husband objected to the wife’s evidence and in particular sought that the audio recording of the intercepted telephone call be excluded from the evidence.
I determined that given that it was a “pocket call” there could be no suggestion that the wife intentionally recorded the call at first instance notwithstanding that she knew all calls received by her phone would be recorded.
I found that she made a conscious decision to allow the recording device to continue recording simply because she recognised the voices rather than hearing any threatening words. It is her evidence that she did not know what the recording contained until she listened to it at a later stage. It was her apparent recognition of the husband’s voice that caused her to leave the recording device on.
I found that in the circumstances of the evidence the wife’s interception of the call was unlawful pursuant to s 4 of the Listening and Surveillance Devices Act 1972 (SA), but also in respect of the Telecommunication Interception and Access Act 1979 (Cth).
Notwithstanding that finding I considered whether pursuant to s 138 of the Evidence Act 1995 (Cth) the evidence should be admitted notwithstanding that it was obtained improperly or in contravention of an Australian law.
I determined, for reasons delivered on the 27 September 2016 that the audio recording of the intercepted telephone call received by the wife on 29 June 2016 should be excluded from the evidence.
Under cross examination, the wife was asked to consider paragraph 281 of her trial affidavit where she complains that from mid-2015 the child started complaining of stomach aches associated with her spending time with the husband.
The wife was asked whether she kept notes or a diary of the child’s various utterances given that paragraph 281 contains significant detail both in terms of chronology and purported statements of the child.
The wife conceded that she had kept extensive notes, but that she now no longer has them.
She commenced to keep notes because her domestic violence counsellor advised her to write things down and then “let them go”.
In her reply affidavit, the wife refers to the husband’s practice of providing the child with a bag of lollies described as a “treat bag”. The wife has apparently complained about the husband providing treats to the child and as set out in paragraph 63, there are 16 examples of lollies provided by the husband. The wife’s evidence is that she took photographs of each and every treat as described in the affidavit.
The wife seeks sole parental responsibility. When asked for the basis of that application, the wife’s evidence is that the communication between the parties is very poor and unlikely to improve.
She rejected any suggestion that she could have done more to facilitate better communication. She did not consider that she was aggressive or resistant to improving communication, but that the husband was the main protagonist.
It was clearly apparent that the wife has kept substantial notes, a diary or recordings of anything of relevance that occurred between the parties and/or the child. The detail as set out in the affidavit encompassing 661 paragraphs in the trial affidavit and 261 paragraphs in the reply affidavit that would suggest there has been significant reference to notes prepared by the wife and possibly others.
The focus of cross examination was directed to documents that would assist in establishing the veracity of direct speech attributed to the child.
The wife was asked to reflect upon the stream of text messages from the husband in the period immediately following separation.
It was suggested that it was reasonable for the husband to be upset by the unexpected separation and then the wife’s conduct in withholding the child from him.
Whilst the wife conceded that the husband may have been emotional and upset, she did not resile from the effect that the husband’s text messages had on her.
The husband accepts the accuracy of the text messages as appear in paragraphs 191 to 193. He now regrets those messages and agrees albeit with some hesitation, that the language was abusive, offensive and was intended or was likely to cause upset and distress.
The wife’s brother Mr NN was described as a “Fucking loser” and “Dumb cunt”. The husband expressed his thoughts that the brother “is the biggest wanker on earth, from what he has done to my life”. The maternal grandfather was not spared the husband’s disdain. In a text message on 6 October 2013, the husband wrote:-
your dads number plate should be compo [Kyriakou] he knows every trick in the book the money hungry arsehole.
The maternal grandfather’s home was described “the devil’s house with your fuck wit dad who is anti Christ”.
Nor was the wife spared the husband’s vitriol. On 7 October 2013 further messages were sent to the wife in the following terms:-
I don’t care how you are only [the child]. That’s ok god has eyes he will punish you like everyone else who does wrong.
Go fuck yourself don’t come home now or never see you in Court.
I wish and pray nothing but hurt and illness to the people that have caused this for me not to see my own daughter may that have an unhappy life and hurt everyday of it. I will never ever forgive you for doing this.
The wife was asked to consider two further tranches of text messaging in 2014 and 2015. The wife conceded that the text messages were not offensive, abusive or disrespectful and that they could not be considered as other than civil and appropriate.
The parties had utilised a communication book from early 2014 to the date of trial. The matters in the communication book are in appropriate and respectful language and the wife again conceded that there was nothing in the communication book which could be considered other than appropriate. There has certainly been no further complaint to the police.
Whilst the parties do not engage in email communication and rarely by telephone, the wife accepted the proposition that there had been no issues in respect of inappropriate language, abusive text messages or offensive communication of any sort for the last three years, save as to the intercepted telephone call.
The wife was challenged as to her evidence that the dispute focussing on whether the child needed a tonsil reduction was emblematic of an ongoing inability of the parties to reach reasonable and sensible decisions that materially affect the child.
It was put to the wife that whilst the parties were in dispute, it was reasonable for the husband to take the child to a paediatrician for a second opinion.
Whilst the wife was not involved with the paediatric assessment of the child at the instigation of the husband, she conceded that at least initially the advice from the paediatrician was that the child may not need the foreshadowed surgery.
The wife highlighted that even the benign suggestion of a sleep test was met with the husband’s opposition. He only consented to the sleep study after the Court made it clear that it was likely to make orders favouring a sleep study being conducted if the parties were not able to reach their own arrangements.
The wife was challenged as to her conduct in enrolling the child in a pre-school without providing notice to the husband. It was her evidence that she had had enough of the recalcitrant conduct of the husband and enrolled the child. She agreed that she had failed to advise the husband or keep him informed of the selected pre-school.
The wife agreed that she did not provide authority to the child’s pre-school that would have enabled the husband to obtain information.
The lack of information provided to the husband was compounded by the terms of the order of 11 December 2015 which provided for the child to spend time with the husband each alternate Tuesday from 3 pm (or the conclusion of kindergarten whichever is the earlier) until 7 pm.
The wife was asked about information she had provided to the kindergarten staff in respect of the alleged aggressive and threatening behaviour of the husband. It appears that information was provided and the wife was challenged whether in giving the information, it was in an attempt to prejudice the kindergarten staff against the husband.
There is no evidence that the kindergarten staff made any direct observations of adverse interaction between the husband and the child and whilst she conceded that there were no verbal or emotional threats made by the husband at that time, she made an effort to tell the kindergarten staff her attitude towards the husband and that she considered him to be violent.
Without observation from the staff, the wife also conceded that she raised issues of the child’s separation anxiety.
As at the date of trial, the child was still co-sleeping with the wife. It is her evidence that the child had regressed and that whilst she was sleeping in her own bed in July 2015, she was still waking up frequently and coming into the wife’s bedroom. On occasion when the child was hysterical she would remain in bed with the wife.
She considered, but without detail, that the child’s hysteria tended to coincide with the occasions that the child spent three nights with the husband.
The wife’s evidence was unconvincing if she had intended to link hysterical and regressive behaviour by the child to the occasions when she had spent overnight time with her father.
The wife ultimately admitted that she had not managed to have the child sleep alone since separation. When challenged, she was not able to attribute the child’s inability to separate from the wife at night as solely arising from the child’s time with the husband or any conduct in his home. The wife considered that the child’s sleeping difficulties pre-dated separation. From time to time co-sleeping had occurred when the child was unwell and in particular when she began to display symptoms of stomach upset.
The husband had recognised that the child co-sleeping with the wife was an ongoing parenting issue. The parties had jointly instructed a psychologist to assist in mediating their dispute and hopefully enabling the parties to reach consensus on a range of parenting issues.
The wife agreed that it would be preferable for the parties to work together such that there is consistency of parenting and management of the child in each of the parties’ homes. The wife conceded that her anxiety may well impact upon the child in her home and that she may well have different sleep patterns in her father’s home.
Whilst the wife could not think of one example where she did not believe something that the child had said, the wife’s evidence may now represent a dawning realization that perhaps the child does not report accurately everything that happens in either the home of her mother and father.
With that concession, the wife agreed that there was a distinct possibility that the child would perceive the wife’s anxiety and her behaviour may well be adversely affected.
The wife considered the first letter from the psychologist recommending that she recognise the need to support the child’s time with the husband, in particular overnight visits and to reinforce that she is safe and happy when in her father’s care.
The wife’s evidence is that she does reinforce and promote the child’s relationship with the husband, but under cross examination conceded that whilst she does not use the word “safe”, she does say that it will be “ok” to be with the husband.
The wife agreed that she suffers from anxiety and that more could be done to better manage its effect upon her. The evidence is that the child no longer complains about her time in the husband’s home and that she considers the house, her half-sibling and the husband’s partner to be important in her life. When asked to distil what remaining issues still trouble the child, the wife was unequivocal in her evidence that it is the husband’s continued denigration of her in the presence of the child. This manifests itself in the child being too frightened to tell her father that she misses her mother and the child appears reluctant to talk about the activities that she engages in with each of the parents in the other’s home.
As an indication of the level of dysfunction and mistrust in the relationship between the parties, the wife considered that the husband’s current appropriate behaviour has not arisen because he has gained insight or developed a higher level of parenting skill but rather, because he is on his best behaviour. Her fear is that once the litigation is over he will revert to his former behaviour of aggressive conduct, abuse and threatening remarks.
It is her evidence that her family do not hold the husband in high regard and have held a strong and adverse view about him for a significant period of time. Whilst likely that the husband’s family are also disparaging of the wife, she was not prepared to accept that her family make it obvious to the child that they dislike the husband.
Notwithstanding her misgivings, the wife was prepared to accept that the child on occasions was both badly behaved and naughty in her care. The feedback from the kindergarten was positive and at the time of trial the child had become settled such that her time at kindergarten had been increased by half a day per week. It is anticipated that the child is now engaged in fulltime formal education.
The problem for the wife is still her belief that the husband and his family continue to denigrate her in the presence of the child. The nature of the reports that allegedly emanated from the kindergarten staff is that the husband wanted to smash the wife’s head in, that there is a rule in the husband’s house that the child is not permitted to express any anxiety or distress at not seeing her mother and that the husband refers to the wife as “fucking bullshit”.
The wife was clear that she had not told the child to tell the teacher’s anything about the husband, but concedes that she did speak to the child’s teachers about the husband. It is reported by the kindergarten director to the family consultant that the child had said:-
[The husband] is picking me up today, he’s always nice to you teachers when he is here but when we leave he always says “Mum’s a fucking bitch” and swears.
The wife accepted that she had also expressed the same sentiment and it was put to her that it could not be a coincidence, but was rather an indication of the extent to which she had reinforced in the child her perception that the husband was aggressive and threatening towards her.
The wife denied that the child’s outburst was anything other than a coincidence, but nonetheless an accurate reflection of the husband’s conduct.
Whilst she agreed that there was no reason to tell the director anything about the husband’s threatening behaviour, she became emotionally overcome and distressed during the conversation because of her concern at seeing the husband attend at the kindergarten. She accepted the proposition that she was “a bit over the top” in her presentation.
The manner in which the wife gave her evidence clearly displayed her anxiety and emotional fragility. Whilst able to competently undertake the parenting of the child when in her care, I am satisfied that she was not able to disguise her dislike of the husband from the child.
The anxiety in the wife’s home may well provide an explanation for the different evidence of the parties as to the child’s behaviour when she transitions from one home to the other.
The wife remained concerned that the paternal grandfather presented as a significant risk to the child if she spent unsupervised time with him.
She accepts without question that the child’s description of the paternal grandfather making her straddle objects and “wiggle” is not benign but rather, should be considered sexualized behaviour. In the wife’s home the child demonstrated the behaviour by rubbing her genitals against various objects. The conduct occurred over a period of about four weeks and increased when the child returned from the husband’s home.
It was put to the wife that the suggestion of an increase in frequency of behaviour was the first time that it had ever been said.
The wife did not speak to the husband about the behaviour and would tell the child that “little girls do not do that”. Before January 2016 it is the wife’s evidence that there was no such behaviour, but she remains convinced that the paternal grandfather instructed the child to rub her genitals against a chair.
Rather than ask the child for more information, the wife considered it inappropriate to further question her because she wanted the child’s evidence to be her own.
At first the wife said she was concerned at the behaviour but did not think it was sexualized or indicative of sexual abuse. Her first response however was to report it to the Child Abuse Report Line (“CARL”). The police became involved but did not pursue the investigation. On 1 February 2016 the wife took the child to a general practitioner who allegedly witnessed the behaviour. The wife did not rely upon the evidence of the general practitioner.
CARL did not investigate the matter further and whilst the wife discussed the allegations with her psychologist in February 2016, there is no separate or independent evidence of the child rubbing her genitals against furniture or other innate objects.
It was put to the wife that she has long held the view that the paternal grandfather had engaged in inappropriate behaviour. The notes of the wife’s psychologist of 10 January 2013 revealed an allegation made by the wife that the paternal grandfather “grabs [the] grandson’s penis over his clothes”.
The wife says that whilst the child’s behaviour has now stopped, she tells the wife that the paternal grandfather sometimes whispers in her ear to “wiggle”.
It was put to her that all of this behaviour took place within a few days of the child commencing kindergarten. The possibility is raised that the behaviour (if it occurred) could be anxiety related. The wife conceded that there was no mention of any of this behaviour to the kindergarten, nor was there any report by the kindergarten staff of the child behaving in a manner consistent with allegations.
The wife’s evidence was not impressive in respect of the proposition that the child had engaged in sexualized behaviour at the instruction of the paternal grandfather. Whilst I am not able to find that the wife has fabricated the allegations, in the absence of any corroboration, her evidence alone would not support such a contention.
A further complication arises from the wife’s evidence that the husband and his current partner may be complicit with the paternal grandfather and are prepared to support him notwithstanding his alleged inappropriate conduct. The wife considers that the husband is supportive of the paternal grandfather in order to get back at the wife and cause her distress.
It was put to the wife that the husband had moved on from their relationship, that he now has a new partner with whom he has two children. He has forged a new life for himself and no longer has an interest (if he ever did) in engaging in malicious conduct towards the wife.
In evidence, the husband was prepared to concede that from time to time when in his care the child misses her mother. The same concession was not proffered by the wife and she remains disbelieving of any suggestion that the husband is prepared to recognise the importance of her relationship with the child. The wife had sought psychological assistance from Ms P, psychologist, from 26 November 2013 to 12 July 2016.
Notwithstanding that the wife reported to the psychologist that she wants the child to have a positive relationship with the husband, she accepts that such is the extent of her anxiety that the child recognises the wife’s negativity and mistrust towards him and has some considerable understanding as to the issues surrounding the conflict.

The difficulty is that there is no evidence to support the value of the motor cycle and the wife relies upon the assumption that the entirety of the cash allegedly held by the husband was used.
The evidence in respect of retained monies and the possibility that they were used to purchase a motor cycle is unsatisfactory. I propose to exclude both the cash sum and the motor cycle from the balance sheet.

Motor vehicle 1

The wife has made observations of the husband driving a Motor vehicle 1. The husband contends that it belongs to his brother-in-law and they have allowed him to use it. Whilst I can understand the wife’s suspicion given that the husband appears to have the unconditional use of the vehicle, nonetheless, in the absence of valuation evidence I do not propose to bring it to account.

Assets and Liabilities of the parties

The following list of assets and liabilities are to be considered:-

Assets

$

Suburb C Property

607,500

Husband’s 1/3 interest in Zenakis Pty Ltd

6,696

4WD

8,000

Motor vehicle

10,000

Scooter

900

Husband’s interest in boat

5,750

Citibank Offset Account

240,832

Husband’s jewellery

3,467

Contents of former matrimonial home

10,750

TOTAL

893,895

Liabilities

Husband’s 2015 tax

5,506

Citibank mortgage against Suburb C property

240,832

NET BALANCE

647,557

Superannuation Interests

Wife’s Statewide Superannuation

24,046

Total of net assets including superannuation

$671,603

LEGAL PRINCIPLES TO BE APPLIED

Both parties seek that there should be an alteration of their respective interests in property and I take into account that the parties are no longer living in a marital relationship and will not have the benefit of common property.
Section 79(2) of the Act provides:-
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
“Property” is defined in s 4(1) of the Act as meaning:-
Property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion…
In Stanford v Stanford (2012) 247 CLR 108 the majority held:-
[35]It will be recalled that section 79(2) provides that “the Court shall not make an order under this section unless it is satisfied that, in all the circumstances it is just and equitable to make the order”.
Importantly, the Court found at [39]:-
…whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist.
I am satisfied that it is just and equitable in the circumstances of a mutual commitment made by each of the parties during the course of a long marriage that the Court should embark upon a consideration of an adjustment to the property interests of each of them.

Property to be sold by agreement

The parties agree (as noted in the order of 20 September 2016) that the F Street property being an asset of the Family Trust, the Suburb I property and the husband’s gun collection are to be sold and the proceeds divided as determined by the Court.
In relation to F Street property, the interests of the Family Trust is to be transferred to the husband’s sister and brother-in-law for the agreed sum of $450,000 noting that the property is held as security for a mortgage that was outstanding in the sum of approximately $205,000.

CONTRIBUTIONS

Each of the parties has made a valuable contribution to the acquisition, conservation and improvement of property.
The husband considers that he has made the greater financial contribution and refers to the following considerations:-
(1)The husband’s initial contribution totalling $561,806.
(2)The wife’s initial contribution totalling $39,212.
(3)The wife’s compensation claim settlement sum of $216,350.
(4)The contribution by the husband’s father towards the cost of the parties’ wedding and a further $10,000 to assist the husband in his 2008 taxation liability.
(5)The provision by the husband’s parents of free rent and accommodation for 18 months from the date of marriage.
(6)The assistance by the husband’s family of the provision of labour and building supplies for the Suburb C property.
(7)The provision by the wife’s family of labour and building supplies towards the construction of the Suburb C property.
(8)The provision by the wife’s family of labour and building supplies for the construction of the Suburb I property.

Section 79(4)(a)

The wife does not dispute that at the date of the commencement of cohabitation, the husband held $314,640 in a CBA term deposit. Upon the wife receiving her compensation claim settlement sum of $216,350 as at 21 February 2008, the balance of those monies when combined with the husband’s savings and provided a total balance of $531,000.
The wife does not dispute that the husband had an interest in the Zenakis Company, an interest in a boat, a motor vehicle and personal effects, but there is a dispute as to the value that should be attributed to his interest in these assets at the commencement of cohabitation.
The significant dispute arises in respect of the status of the land at what is now the Suburb C property which the parties agree had a value at the commencement of cohabitation of $190,000. The wife asserts that in May 2008 the parties received a joint gift from the husband’s parents being the subdivided Suburb C property. The parties were required to pay the costs of the subdivision of this property which she maintains was about $25,000. When those fees are deducted, the wife considers that the net benefit to the parties of the gift was $160,000.
The effect of the gift was significant. The parties used their combined funds to build the former matrimonial home now brought to account at $607,500. The husband says that he lodged a development plan (exhibit “11”) on 2 November 2007 which received consent on 23 January 2008. The husband argues that the gift of the land was to him only and that it occurred in 2007. The husband contends that but for his relationship with his parents there would have been no basis for his parents to gift the subdivided portion. The husband’s parents reside in a property on the remaining portion of the block.
The parties are jointly the registered proprietors of the Suburb C property. The husband’s father says that he was not aware that the property was to be placed into the joint names of the parties given that it was not intended by him to be a gift to both of them. Whilst the final subdivision approval occurred in the month after the date of marriage, the development application was lodged in the month before marriage and the discussion between the husband and his parents in respect of the gift significantly predated the commencement of cohabitation.
In Gosper & Gosper (1987) FLC 91-818 at page 9 Fogarty J considered that:-
Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction (see Rainbird; Read). Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (a critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or both of the parties that is an important finding.
Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor. However, his Honour then said:-
“The next step is then to consider the application of section 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party. Traditionally this task is performed by firstly considering the question of contribution under section 79(4)(a) – and then, if relevant the section 75(2) factors. There is no reason to apply a different approach in relation to property having this particular history.
Where a gift is made solely to the donor’s relative (for example a gift by parents to their married daughter) and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage. Cases such as Rainbird, Freeman and Read are examples of this”.
In considering his Honour’s views in Gosper the Full Court in Kessey & Kessey (1994) FLC 92-495 said at page 10:-
…where there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the facts of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
It must be a relevant consideration that the husband’s father entered into a contract to transfer the land from he and his wife to the parties. The husband and wife had been in a relationship for many years prior to marriage. She was a regular visitor to the husband’s family home and it is a reasonable distillation of the evidence that in terms of assisting their son in the future and providing him with some financial security, it was anticipated that the parties would be married.
I do not accept the husband’s contention that the gift of the land was not in contemplation of the parties’ marriage.
Accordingly, I find that the gift of the Suburb C property was to the parties and should not be considered as a contribution made by or on behalf of the husband.

Accommodation of the parties with husband’s parents

Following the marriage the parties lived at the husband’s parents’ home for about 18 months whilst the former matrimonial home was constructed on the Suburb C property. Whilst there is no evidence as to the financial benefit to the parties, it is conceded that they did not pay any rent.
Whilst difficult to quantify, nonetheless the provision of rent free accommodation for a period of sometime may well be considered as a contribution on behalf of the husband. (see Pellegrino v Pellegrino (1997) FLC 92-789).

Construction of the former matrimonial home

The husband considers that the labour and material provided by his family represents a significant contribution made by him. He refers to the attendance by his father on the construction site between four and six days per week and in particular in respect of laying the concrete slab, pouring concrete for paths and around the perimeter of the house and then numerous trips to the rubbish dump. His brother-in-law assisted in the provision of labour and a further brother-in-law painted the home.
Whilst the husband concedes that the wife’s family contributed labour and materials, the issue appears to be the dispute as to the extent and value of that provision.
There is little or no evidence presented by either party which would assist the Court in quantifying the extent to which the assistance provided willingly by members of each of the parties’ family could be brought to account.
I do not consider that it is appropriate to have any regard to the alleged contributions made by the extended family of the parties to the construction of the former matrimonial home. To do so would be an unnecessarily mathematical approach and I have received no evidence which would assist in determining whether the contribution made by the various family members made the difference that each of them assert.

Section 79(4)(b)

Each of the parties can be considered to have made a contribution either directly or indirectly to the property of the parties.
The parties were focussed on providing for their financial security. The husband was employed in the family business. The wife remained at home and focussed on performing the role of homemaker.
Each of them maintained and improved their property, not just limited to the former matrimonial home, but effort expended in relation to the operation of the family trust and the management of the F Street property.
The parties also developed the Suburb I property and in that regard the husband gives proper recognition for effort made in terms of the provision of labour and other assistance from members of the wife’s family to the development of that property.

Section 79 (4)(c)

The husband takes no issue with respect to the significance of the contribution made by the wife as a homemaker. Whilst the parties have been in conflict as to the ongoing parenting arrangements and in particular following separation, it is not controversial that the wife fulfilled the role of a homemaker and was during the marriage and still remains the primary caregiver for the child. That does not seek to in any way diminish the husband’s position in the home, but the wife’s evidence is compelling in terms of enabling the Court to find that there was a clear delineation in the duties undertaken by each of them. That is not to suggest that one should be given precedence over the other, but it is a reflection that each of the parties during the course of cohabitation undertook their role with a common purpose namely, to advance the family and secure its financial future.

Section 79 (4)(d)

The wife is unlikely to return to the workforce in the medium term. Her health is poor and whilst I am entitled to rely upon the uncontested medical evidence in relation to her capacity for employment, it was not really a serious contention of the husband that the wife should be able to re-enter the workforce soon after the conclusion of the proceedings.
The husband is in a better position in the sense that whilst his ability to undertake hard physical work is significantly compromised, he has some advantage in terms of the potential for him to undertake non-physical duties in the administration and management of Zenakis Pty Ltd.
Even at its highest, the medical evidence presented on behalf of the husband would not suggest that his future is certain. The parties have received significant financial support from their families, predominantly expended on their legal fees.
To some extent the legal fees have subsumed the financial considerations in respect of their separate property interests in that much depends upon whether their separate assertions that they will be required to repay at some stage monies provided by their families, will occur. To a lesser extent the husband, but significantly so in relation to the wife, the amount that she will actually receive is modest at best.

Weight to be given to the parties’ separate contributions

In the early decisions of Bremner & Bremner (1995) FLC 92-560 and Money & Money (1995) FLC 92-485, the Court considered that a substantial initial contribution “may be eroded to a greater or lesser extent by the latter contributions of the other party even if those contributions do not necessarily at any particular point outstrip those of the other the party”.
This approach was considered by the Full Court in Pearce & Pearce (1999) FLC 92-844 and was ultimately criticised as follows:-
In our opinion it is not so much a matter an erosion of contribution but a question of what weight is to be attached in all the circumstances, to the initial contribution. It is necessary to weigh the initial contribution by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contributions, in this case the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase of the matrimonial home.
Taking into account the size of the pool and noting the relevant issue is not one of percentage adjustment but rather the effect of any adjustment, I consider it appropriate for there to be an adjustment in favour of the husband represented by a 55/45 adjustment in his favour. The consideration of weight that is to be given to a contribution is not an arithmetical exercise, nor indeed is it a process that should be considered by reference to the allocation of each individual aspect of contribution. This was a marriage of medium length with a child of the relationship. The parties worked hard to secure their financial future. A comparison of the money held by the husband in his CBA term deposit as at the date of commencement of cohabitation, together with his interest in the business outweighs the wife’s contribution in circumstances where the funds standing to the credit of the parties is directly reflected in the value of the Suburb C property

SECTION 75(2) FACTORS

Section 79(4)(e) requires a consideration of s 75(2) of the Act. The parties are of similar age. Each of them provided significant medical evidence (most of which was not contested). In 2012 the wife was diagnosed with Crohn’s Disease and she continues to undertake appropriate treatment. Her symptoms involve stomach pain, fatigue and an urgency in toileting. The condition appears to be worsening, but is likely to be exacerbated by the stress of the litigation.
She also suffers from depression, anxiety and PTSD. She takes medication and is supported by various health professionals, but also her family who assist her with household duties.
Her health needs require medication at about $30 per week and the combined cost of health professionals, including psychological and psychiatric support, is approximately $188 per week.
It is likely that these costs will continue.
The wife relies heavily on the support of her family, but does receive child support and the benefit of a spousal maintenance order made 1 April 2016, although the continuation of that order is the subject of challenge by the husband.
The parenting orders will not significantly change the commitment necessary to support the child and it is unlikely even if the wife’s health improves that she would be able to obtain fulltime employment for many years. Her financial predicament is not likely to be substantially improved by the resolution of the proceedings. Notwithstanding that I consider it unlikely the wife’s family will seek the return of monies provided by them for her legal fees, there is a substantial sum still outstanding.
The husband has re-partnered and he has the financial responsibility not just in respect of the two children of his relationship, but also his partner’s two children who primarily reside in the husband’s home.
His partner is not currently employed and she cares for their two daughters and her other children.
The husband’s partner has limited assets and receives some child support from her former husband totalling about $100 per week. The child support does not account for the living costs of those children.
The husband’s health is uncertain. He has few qualifications other than his knowledge of working in the business. The work is physically hard and the husband’s evidence is that he has sustained various injuries and conditions that are consequent upon the nature of his work.
There is no suggestion that the husband is anything other than a hard worker. The issues that affect the husband’s health are to do with orthopaedic degeneration of his knees and his right hand.
The medical evidence is that he is unlikely to be able to sustain the current level of his manual activity.
The husband’s father who has until recent times been actively involved in the family business, has kidney disease. Whilst there is some suggestion that the husband may be a suitable donor, the more relevant consideration is the extent to which the business will be disrupted and/or the husband will be required to undertake further duties and obligations following his father’s retirement.

The best that can be supported by the evidence is that the business is heading into uncertain waters, but it is reasonable to consider that there may be other opportunities within the business for the husband to take a less physical role and thereby extend his working life.
Whilst the wife’s counsel submits there should be an adjustment of 20 per cent on account of s 75(2) factors in her favour, and the husband considers that there should be no adjustment, I consider it just and equitable to bring to account the preponderance of s 75(2) factors in favour of the wife as represented by 7.5 per cent.
Accordingly, the overall apportionment of the property of the parties should be 52.5/47.5 per cent in favour of the wife.
Both parties seek that the methodology to be adopted is a single pool approach, that is to bring to account the wife’s superannuation interest given that it is of modest size. I propose to fall in with the request of the parties.
Accordingly, on the basis that the net assets including superannuation is $671,603. The wife is to receive property to the total sum of $352,592 and the husband the balance of $319,011.
The wife however seeks to retain the following property:-
·Motor vehicle   $10,000
·Jewellery   $ 3,467
·Superannuation                   $24,046
Total   $37,513
I further bring to account valuation costs incurred by the husband which totalled $19,514. The wife’s share of this expense is $9,757.
Accordingly, in addition to the property that the wife is to retain and taking into account the wife’s share of valuation costs, the husband is to pay a settlement sum to the Trust Account of the wife’s solicitors in the sum of $305,312. It is reasonable that the settlement sum be paid within 60 days of the date of the order and in any event contemporaneously with the transfer of the wife’s interest in the Suburb C property.
The F Street property, the Suburb I property and the husband’s firearms are to be sold and after the payment of secured liabilities and costs of sale, the net proceeds are to be paid to the parties in the proportion of 52.5 per cent to the wife and 47.5 per cent to husband.

SPOUSAL MAINTENANCE

The wife seeks the continuation of the order made 1 April 2016 that requires the husband to pay spousal maintenance to the wife of $202 per week. The order noted that the husband continue to pay to the wife the sum of $200 per week by way of privately agreed child support. It is likely that the payment by the husband of voluntary child support is in excess of that which would be payable if the husband was the subject of an administrative assessment.
It is necessary to refer to my reasons delivered in support of the interim order.
There have been changes to the financial circumstances of each of the parties.
The wife’s application is assisted by her Financial Statement filed 3 August 2016 and the husband’s Financial Statement filed 26 August 2016.
The wife’s position has altered in respect of her expenditure, but other than child support that the husband continues to pay, the wife receives no income from any other source other than a pension benefit or allowance.
Given my findings in relation to the wife’s health and her commitment to provide ongoing care for the child, I do not consider that the wife’s circumstances to be such that she is able to support herself adequately or at all.
The wife currently resides in the home of her parents. She receives significant benefit in respect of living expenses that exceed the board that she pays of $100 per week. She has no other Part G personal expenditure and by reference to her Part N average weekly expenses, the amount she claims in respect of her own expenses are not unreasonable at $598.
The focus of the wife’s application is not her entitlement to an order of spousal maintenance, but the ability of the husband to meet a clear need.
In his Financial Statement, the husband deposes to average weekly income of $2,315 which is an increase from the figure in his statement of 13 November 2015. The husband’s personal expenditure is $3,089. The breakdown of both income and expenditure requires more careful scrutiny following the orders that are to be made for settlement of property, particularly given that the income and expenditure that relate to the F Street property and the Suburb I property should be excluded given they either have been, or are soon to be sold.
By reference to Part D income, I do not bring to account the rent received from the F Street property in the sum of $320 and accordingly the husband’s income should reduce to $1,995.
In respect of Part G personal expenditure, I propose to remove the expenses in relation to the F Street property and the Suburb I property and adjust the maintenance payments to reflect the level of child support being paid, but not including a component for spousal maintenance.
The husband claims $500 per week or about $2,000 per month by way of a payment plan with the ATO to resolve outstanding tax for 2015.
The husband’s taxation is referred to at paragraphs 639 to 643 of his trial affidavit. As at the date of the trial the balance of the husband’s tax debt for 2015 was $27,016. The husband has received a tax refund of $2,510 and accordingly the overall taxation liability was reduced to $24,506. The husband’s trial affidavit was affirmed on 26 August 2016. A further nine months have now passed and I propose to reduce the tax liability by $19,000 leaving a balance of $5,506. This amount has been brought to account as a liability of the parties. The justification for this approach is referred to at paragraph 53 of the interim spousal maintenance judgment as follows:-
The wife argues that the husband is not actually paying his tax and is not obliged to do so until well after the end of each financial year when a financial position of the [trust] and the husband are determined. There is no evidence that the husband puts money aside and accordingly, with whatever level of accuracy might be achieved by the husband, the income tax that he seeks to include in Part G is not actually being paid. Whilst there is some sense in the wife’s approach, if accepted, any outstanding tax liability by the husband for the 2016 financial year would properly be considered as a liability that should be brought to account against the property interests of the parties.
Accordingly, I propose to deduct the following amounts from the Part G expenditure:-
·ATO taxation  $500
·Mortgage payments on F Street property  $209
·Land tax, council rates, ESL and other outgoings
on F Street property  $ 53
·Land tax, council rates, ESL and other outgoings
on Suburb I property  $ 36
·Home Insurance F Street property  $ 10
·Home Insurance Suburb I property  $    7
By reference to the Part N weekly expenses, it is difficult to consider any area that should be reduced. There was no evidence presented by the husband in respect of the items of expenditure, nor was there any cross examination in respect of any item claimed that the wife may have considered excessive.
The reality of the husband’s position is that he effectively supports his partner, their two children to the extent that it is likely his partner’s children’s expenses exceed that which she receives by way of child support, the additional expense.
I propose therefore to bring to account the Part N expenses at the full amount as claimed.
The husband’s income is $1,995 and his expenses are $2,072 leaving a negative balance of $77.
However, in three months’ time the husband will have discharged his 2015 taxation arrears and his expenditure reduces to $1,872.
Accordingly, I propose to order that the husband pay spousal maintenance to the wife in the sum of $100 per week.
I do not consider that it is appropriate for the order to be open-ended.
The circumstances of each of the parties may well change and it is reasonable that the husband be entitled to explore the wife’s circumstances from time to time, both to ensure that she is still able to demonstrate an incapacity to support herself and to assess his ability to continue to meet the current order.
The husband will pay spousal maintenance to the wife in the sum of $100 per week for a period of nine calendar months from the date of this order payable as a lump sum amount of $3,600.

CONCLUSION

In addition to the settlement sum the husband is to pay to the wife the sum of $5,000 by way of costs and $3,600 by way of lump sum spousal maintenance.
Settlement sum  $305,322
Wife’s costs  $5,000
Spousal maintenance          $3,600
Balance  $313,922

I certify that the preceding six hundred and nine (609) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 June 2017.

Associate:

Date: 15 June 2017

[2017] FamCA 420

15 June 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Injunction

1983	The husband born (age 34)
1985	The wife born (age 32)
2002	Parties commence a relationship
2007	Date of marriage
2007 – 2009	Parties live with parental grandparents for 18 months whilst building their own home
2011	The child is born
2012	The wife diagnosed with Crohn’s disease
7 October 2013	Parties separate
8 October 2013	The wife vacates the former matrimonial home
10 October 2013	The wife reports to police about the husband’s threats made to her and her family
30 October 2013	The husband consults with Dr W (psychologist)
11 November 2013	The parties attend mediation. The parties reach agreement regarding the husband’s time with the child
19 November 2013	The husband commences contact with the child each Tuesday (3 hours)
23 November 2013	The husband commences contact with the child each Saturday (3.5 hours)
26 November 2013	The wife starts consulting with Ms P (psychologist)
31 December 2013	The husband’s time with the child on Tuesday’s is extended to 4 hours
4 January 2014	The husband’s time with the child on Saturday’s is extended to 4 hours
March 2014	The wife starts consulting with Ms DD (psychologist)
1 April 2014	The husband consults with Ms DD
5 April 2014	The child does not present for handover, the wife asserts the child was extremely distressed and did not want to attend handover
8 April 2014	The husband’s time with the child each Tuesday is reduced to 2 hours. The wife asserts that the child’s separation anxiety improves
10 April 2014	The husband completes the ‘Kids are First’ parenting program
24 July 2014	The first family assessment report
6 August 2014	The child commences spending time with the husband each Wednesday (4 hours)
28 August 2014	Husband completes “Mum’s house, Dad’s house” program
20 October 2014	Orders made that the child spend each Wednesday (5 hours) and overnight time with the husband
1 December 2014	The wife reports that the child is transitioning into her own bed
8 December 2014	Divorce Order granted
January 2015	The wife reports the child has slept in a toddler bed on 6 occasions before the first overnight visit with the husband
6 February 2015	The child commences overnight time with the husband
February 2015	The wife alleges the child is regressing with independent sleep and requires co-sleeping with the wife, the wife reports the child appeared worried/stressed and has regressed with toilet training
14 February 2015	The husband reports having no difficulty with the child spending overnight time
March 2015	The husband completes “Positive Parenting” course at Centacare
March 2015	The husband concludes counselling with Dr W
23 March 2015	The wife files interim application seeking suspension of the husband’s overnight time and in lieu contact each Sat 12 pm –5 pm
2015	Husband and partner’s child, EE, born
9 April 2015	The second family assessment report
May 2015	The wife reports the child makes verbal comments directed at her after each visit with the husband, for example; “… [the husband] says you’re bullshit”
June 2015 -	The wife alleges the child complains of stomach aches on the way to spending time with the husband
September – October 2015	The wife informs the husband of her concern about the child’s disturbed sleeping pattern
3 November 2015	The wife attends upon Dr FF with the child. The wife provides a summary of that attendance in the communication book on the 4 November 2015
9 November 2015	The wife proposes to the husband that the child undergo the surgery recommended by Dr FF
14 November 2015	The wife provides a copy of Dr FF’s report to the husband
11 December 2015	The wife takes the child to a sleep study session
30 January 2016	The child rubs her genitals on the bedrail and later on the wife’s legs. The child reports that Mr GG showed her on his chair. The child reports that the paternal grandfather requested that she wiggle
31 January 2016	The wife reports the child’s disclosures to the police
1 February 2016	The child commences transitioning to attending kindergarten at D School on Tuesday’s and Thursday’s (8.45 am – 3.15 pm)
February 2016	The wife commences consulting with Dr O (psychiatrist)
22 February 2016	Order that the child attend upon Dr FF for a subtotal tonsil and adenoid reduction
21 March 2016	The wife states that the child returned from a 3 overnight period with the husband complaining of stomach pains
3 May 2016	Child attended upon Dr FF for subtotal tonsil and adenoid reduction
June 2016	The child’s attendance at kindergarten improved such that she rarely cried when the wife left
7 June 2016	Report by wife’s psychiatrist, Dr O
2016	Husband and partner’s child, II, born
22 August 2016	The parties attend upon the family consultant
15 September 2016	The third family assessment report

Assets	$
Suburb C Property	607,500
Husband’s 1/3 interest in Zenakis Pty Ltd	6,696
4WD	8,000
Motor vehicle	10,000
Scooter	900
Husband’s interest in boat	5,750
Citibank Offset Account	240,832
Husband’s jewellery	3,467
Contents of former matrimonial home	10,750
TOTAL	893,895
Liabilities
Husband’s 2015 tax	5,506
Citibank mortgage against Suburb C property	240,832
NET BALANCE	647,557
Superannuation Interests
Wife’s Statewide Superannuation	24,046
Total of net assets including superannuation	$671,603