Malik and Malik & Anor

FAMILY COURT OF AUSTRALIA

MALIK & MALIK AND ANOR

[2012] FamCA 165

FAMILY LAW – CHILDREN – with whom a child lives – Substantial and significant time - where there is equal shared parental responsibility
FAMILY LAW - HAGUE CONVENTION - overseas travel to Egypt with father
FAMILY LAW – PROPERTY SETTLEMENT – Rights of a third party – contributions to property – equity - where there is a dispute as to distribution of chattels – where the value of the husband’s company is disputed.

FAMILY LAW – SPOUSE MAINTENANCE – where the marriage is of a short duration

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

MRR v GR (2010) 240 CLR 461
Cowley v Mendoza [2010] Fam CA 597; (2010) 42 Fam LR 436
Goode and Goode (2006) FLC 93-286
Cierpiatka v Cierpiatka and Cierpiatka (1999) FLC 92-864
Calverley v Green (1984) 155 CLR 242

APPLICANT:

Ms Malik

RESPONDENT:

Mr A Malik

SECOND RESPONDENT:

Mr M Malik

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

801

2010

DATE DELIVERED:

23 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

2 September, 5, 6, 7, 8, 9 December 2011

REPRESENTATION

THE APPLICANT:

Ms Malik in person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Aubrey Brown Partners

COUNSEL FOR THE SECOND RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE SECOND RESPONDENT:

Taperall Rutledge

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all existing orders in relation to the child Y, born on … October 2005 (“Y”) are discharged.
That the mother and father have equal shared parental responsibility for Y.
That Y live with the mother at all times other than the periods specified in order 4, during which she will live with the father.
That Y live with the father as follows:
(a)    during school term time, each alternate weekend from 5.00pm on Friday until the commencement of school on Monday or Tuesday in the event of a long weekend;
(b)    during school term time, from 5.00pm on Tuesday until the commencement of school on Wednesday in each other week;
(c)    for one half of all school holidays, as agreed between the parties or otherwise the first half in 2012 and each alternate year thereafter and the second half in 2013 and each alternate year thereafter.
That, notwithstanding the provisions of any other order, Y will spend time:
(a)    With the father from 4.00pm on the Saturday preceding Father’s Day until 5.00pm on that day;
(b)    With the mother from 4.00pm on the Saturday preceding Mother’s Day until 5.00pm on that day;
(c)    With the mother from 4.00pm on Christmas Eve until 5.00pm on Christmas Day in 2012 and each alternate year thereafter and from 5.00pm on Christmas Day until 12.00 noon on 27 December 2013 and each alternate year thereafter;
(d)    With the father from 5.00pm on Christmas Day until 12.00 noon on 27 December 2012 and each alternate year thereafter and from 4.00pm on Christmas Eve until 5.00pm on Christmas Day in 2013 and each alternate year thereafter;
(e)    With the father from 5.00pm on Friday until 9.00am on Monday on the weekend of or closest to the Eid Festival.
That for the purposes of implementation of these orders the mother will deliver Y to the father at the beginning of all periods of time with him at Town W Shopping Centre or his place of employment and the father will return her to the mother at the McDonald’s restaurant closest to her home at the conclusion thereof, unless changeovers occur at Y’s school.
That each of the parties is restrained from removing Y from the Commonwealth of Australia without further order or the written consent of the other parent.
That the mother is restrained from relocating Y’s residence from the city of Newcastle without further order or the written consent of the father.
That the parties are at liberty to vary the provisions of these orders as they may agree from time to time.

PROPERTY

That the second respondent is declared to hold a beneficial interest of three (3) per cent in the property situate at and known as … C Street, Suburb E in the State of New South Wales (“the Suburb E property”).
That the second respondent is declared to hold an equitable charge over the Suburb E property in the amount of $258,132.00.
That within two (2) calendar months of the date of these orders, the husband pay to the wife the sum of $132,670.00.
(a)    that, simultaneously with payment by the husband of the sum of $132,670.00, the husband and the wife will do all things and execute all documents required to effect the transfer to the husband of the whole of the wife’s right title to and interest in the property situate at and known as … A Street, Town G in the State of New South Wales (“the Town G property”);
(b)    that, provided that the husband has paid the whole of the sum stipulated in order 12 to the wife within two (2) calendar months of the date of these orders, she will vacate the Suburb E property within a further period of one (1) calendar month.
(c)    that, upon compliance by the husband with order 12, the wife will do all things and execute all documents required to effect the removal of any caveat which she has caused to be placed on the title to the Suburb E property.
That the husband indemnify the wife and keep her indemnified against all liabilities arising pursuant to the mortgage registered on the title to the Town G property.
That the parties take all steps necessary to:
(a)    deliver into the possession of the husband the chattels listed in Annexure A to these orders, which are presently located in the Suburb E property; and
(b)    deliver into the possession of the second respondent the chattels listed in Annexure B to these orders, which are presently located in the Suburb E property; and
(c)    deliver into the possession of the wife the chattels listed in Annexure C to these orders, which are the property of her mother, Ms L, and which are located in the Town G property; and
(d)    deliver into the possession of the wife the chattels listed in Annexure D to the orders, which are presently located in the Town G property; and
(e)    thereafter, that each party be declared to be solely entitled to all items of personal property in his or her possession.

SPOUSE MAINTENANCE

That the husband pay to the wife spouse maintenance in the sum of $200.00 per week for a period of one year from the date of these orders.

GENERALLY

That all outstanding applications and responses are dismissed.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Annexure “A”

Wooden dining table with 6 chairs
Laminated kitchen dining table with chairs
Glass dining table
Wooden carved dining table
Computer desk
S’s pink office chair
Red wooden 2 door, 4 drawer wardrobe
Wooden double bed with mattress
White laminated queen bedroom suite (bed base & mattress, headboard, dressing table & two bedside tables, 3 wardrobes)
Two single beds with mattresses
Wood and steel double bed with mattress
Carved wooden & velvet lounge suite (3 + 2 * 1)
Old fashioned lounge suite upstairs Suburb E (3 + 2 * 1 seater)
Small square glass coffee table
Laminated walnut buffet
Carved yellow wooden storage box
Carved brown wooden storage box
Seven carpet square: four red carpet squares, a large light brown carpet square, a green woollen carpet square & picture of lion carpet
Mountain bike. S and T’s bikes
Wooden elephant set
Multi game table
Two red bean bag chairs
Two * Mora blankets from Egypt
Cream leather lounge suite (3 + 2 seater)
Drink trolley
Two-seater carved child’s chair
All remaining linen and kitchenware that was not the wife’s prior to cohabitation or in the wife’s list to take
Large fridge and matching large freezer
Downstairs fridge
White microwave
Square fan
White fan on stand
Old desktop computer base
Sony video camera
Two toasters (white and metal one)
Steel kettle
Brother multifunction centre
Cannon printer
2 small matching chandeliers from Egypt
Electric organ
2 seater toy electric car
1 * Vivid DVD player
1 * Energy star video
1 * 14” TV
2 * large TV’s
1 * new Panasonic 50” Plasma TV
Concrete table and matching chairs
Manual lawn trimmer
Petrol lawn mower at Suburb E
3 seater swing chair
Table tennis table
Remaining personal items at Suburb E

Annexure “B”

Velvet and wood bar chair
4 wooden bookcases. One brown, one yellow & two red
Large grey desk with drawers
Two burgundy/red office chairs
Three tier walnut book shelf
Small round wooden coffee table
Three bedside tables
Three red wooden wardrobes & corner desk with hatch
Four quarter circle display shelves
Red leather lounge suite (3 + 2 + 1)
Blue leather lounge suite (3 + 2 + 1 seater)
Red vinyl lounge (2 seater & recliner)
Three seater wooden sofa bed
Five dining cabinets with drawers
Red wooden filing cabinet
Carved chest of drawers
Hall stand
Wooden towel rail
Two wooden pyramid chest of drawers
Marble table
Wooden and glass coffee table with drawers
Corner china cabinet (2 parts)
Two large woollen rugs (circle and square)
Yellow wooden corner TV cabinet
Walnut TV cabinet with drawers
Walnut buffet/book case
Coat/hat stand
BBQ
Steamer
Large brown/gold lamp
Moulinex blender
LG washing machine at Suburb E
Slow cooker
Red microwave
Tall gold light stand
Two clip-on table lamps
Two vacuums
Multifunction power station and car battery
Blower, whipper snipper
Fishing rods
Personal items still left at Suburb E

Annexure “C”

Double bed mattress & wooden base with slats
Single mattress & white metal base
2 * bedside tables
1 * chest of drawers
1 * student desk
1 * office chair
1 * china cabinet
1 * bakers stand
1 * microwave cabinet
1 * round glass dining table with 4 chairs
1 * TV cabinet
2 * velvet lounge chairs with base for one
1 * hall table
2 * wooden coffee tables
1 * marble coffee table
3 * plastic white garden chairs
1 * TV and antenna
1 * microwave
1 * fridge
1 * 5.5kg washing machine
1 * small heater
1 * toaster
1 * electric can opener
1 * iron
1 * kettle
Clock
Cookware
Glass, crystal and plastic kitchenware
2 * dinner sets including a red plate set & Royal Albert set
Cutlery
Small esky with items inside
1 small clothes rack
3 * plastic storage boxes
Boxes filled with Ms L’s personal items
Tools, mop, brooms
Bed linen, towels, pillows
Gold artificial flowers with vase
1 * glass shelf
One large red patterned rug and two mats
1 * large gold edge mirror & one medium framed mirror
3 – 4 prints
Original painting of book, bird and glass
Lamp shade
Bedside lamp

Annexure “D”

Representation on stand
5 * black metal mesh outside chairs with cushions
5 * plastic hot pink chairs
2 * wrought iron and wood chairs
Wrought iron & wood coffee table
Hexagon table
Y’s blue lounge chair
White bar stool
Single black framed bed with mattress
1 * rosewood bedside cabinet
Gold kiss cabinet
2 * new queen bedroom suites: includes 2 beds with 2 new mattresses, 2 chest of drawers & 4 bedside tables
Grey top for office desk
Wooden wine rack & alcohol/wine
All kitchenware and linen/haberdashery owned prior to cohabitation
All stationery owned prior to cohabitation
Silver plate in box, cake stand, one Haigh's chocolate mugs, mug with cat picture, blue flowered cup and saucer sets, small lion candle holder, large white serving dishes, love heart shaped dishes, small dish rack, red and gold glass serving dish, red rectangular platter plate with square bowl
2 red cushions, large leopard cushion, two queen black with silver quilt cover, Y’s red boat quilt cover, cream fluffy blanket, new quilt cover in rumpus room, mattress protectors for queen beds
All statues owned prior to cohabitation
Framed picture of rose, painting of trees, painting with book & bird
Picture with lights, Hug painting, 2 tiled pictures with kookaburras, 6 laminated children posters (101 Dalmatians, Shrek, Lady & the Tramp, Alvin, Ice Age & Open Season) from Town G rumpus room
Framed picture of 3 girls
Five brown patterned woollen carpet squares
Round ottoman with circle print
Christmas tree
Y’s purple tricycle with tray
Y’s toys
Nintendo DS
Very large teddy bear and Y’s fluffy toys, princess tent & rocking horse
4 barbie dolls belonging to Y
One third of beanie bears
Video and DVD player
Portable window air conditioner
Large Breville water boiler, sandwich maker, vegetable juicer, toaster
1 large pink lava lamp
1 * lead light with metal statue lamp base
Surround sound system with DVD player
Audrey Hepburn clock
Square sandwich toaster
Metal lamp stand with tall red shade
LG washing machine
Cappuccino machine
Red set: Toaster, blender and kettle
Laminator & plastic sleeve stationery
Hand held blender with attachments from supermarket
Y’s purse bedside lamp
Large story book purchased by Ms L for Y
Two new microphones
All garden tools, hardware items owned prior to cohabitation
Personal items

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 801 of 2010

Ms Malik

Applicant

And

Mr A Malik

Respondent

And

Mr M Malik

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

Ms Malik and Mr A Malik are the parents of a little girl, Y, who was born in November 2005 and is now six years old. They are in dispute with respect to parenting orders for Y and also settlement of property.
The second respondent to the proceedings is the father’s brother, Mr M Malik (“the second respondent”). He sought a declaration that he holds a beneficial interest in a property at C Street, Suburb E, as tenants in common in equal shares with the father. Alternatively, the second respondent asserted that he holds an equitable charge over that property in an amount of $341,480.76.
The applicant mother proposed that she and the father have equal shared parental responsibility for Y and that the child live with her. Y would spend each alternate weekend from Friday afternoon until Monday morning and every other Tuesday from 3.00pm until 7.00 pm with the father. The school holidays would be shared equally between the parents and Y would spend time with each of them on special occasions. The mother left open the possibility that Y may stay overnight with the father on Tuesday and that he deliver her to school on Wednesday morning.
There was some confusion, ultimately, as to whether the mother sought to relocate with Y from Newcastle to Sydney. In a Minute of Order attached to her Outline of Case, she sought “that the mother and child can to [sic] relocate residence to the [Sydney Northern Suburbs] area.” In cross examination she said “I would love to live in Sydney but [the father] would not let me.” In final submissions she said “I wish to remain in Newcastle.” I will treat her last words on this issue as an abandonment of her application to relocate with Y to Sydney.
The respondent father proposed that he and the mother have equal shared parental responsibility and that Y live with him. She would spend time with the mother each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays. In the alternative, the father sought orders for a week about equal time regime and indicated that he would be prepared to relocate to facilitate this arrangement. The father proposed that Y spend time with each parent on special occasions. He sought a number of specific issues orders. In particular, the father sought an order to enable each parent to remove Y from Australia for holidays.
By way of property settlement the wife sought orders that the husband pay to her a sum of $680,000.00 together with “50 per cent of the husband’s interest in [A Malik Pty Ltd]”, upon which she would transfer to him her interest in the property situate at A Street, Town G. The wife sought an order that the husband pay spouse maintenance in the sum of $800.00 per week for seven years. She also sought a child support departure order.
The husband sought orders that the wife transfer to him her interest in the Town G property upon payment to her of a sum of $14,088.00. He also sought a splitting order in respect of his First State Super Fund, so as to cause a payment to the wife of an amount of $35,000.00. He would consent to an order that he pay spouse maintenance in the sum of $200.00 per week for 12 months.
There has been a protracted dispute between all three parties as to the distribution of the contents of the Town G and Suburb E properties. I will consider this issue below in these reasons, to the extent permitted by the available evidence.

BACKGROUND

The husband was born in Egypt on 25 March 1962 and is now 49 years old. He qualified as a professional in Egypt and practiced in Saudi Arabia, before migrating to New Zealand in 1996. He married his first wife, Ms H, in New Zealand in 1997. They have two children, T and S, who are now aged 14 and 12 years respectively.
The husband moved to Adelaide in July 2000, leaving his first wife and two children in New Zealand. In August 2001 he met the wife and began a relationship which she described as “dating” and he categorised as “a friendship”. The wife became pregnant but miscarried in April 2002.
In 2002 or 2003 the husband obtained employment and moved to Newcastle. He and his first wife reconciled and lived together from approximately April 2002 until October 2002. They then separated finally and she returned to New Zealand with T and S.
The second respondent migrated to Australia from Egypt in 2003. He and the husband shared a rented home unit in Newcastle and both worked at the same workplace. The second respondent qualified as a professional in Egypt.
After March 2003 the husband and wife kept in contact by telephone and email and spent occasional time together on weekends. They entered into an exclusive relationship in January 2004 or May 2004, according to the wife and the husband respectively.
On 5 February 2004 T and S came to live with the husband and his brother in disputed circumstances. In 2004 the husband’s first wife made an unsuccessful application for the return of the children to New Zealand pursuant to the Hague Convention. On 8 July 2005 a New Zealand court ordered the return of the children to that country, pending a final hearing of contested parenting proceedings.
Between 11 July 2005 and 20 September 2005 the husband and wife lived in New Zealand with T and S. The wife was a witness in the husband’s case in the parenting proceedings. He obtained an order that T and S live with him in Australia. The husband and wife left New Zealand with T and S on 20 September 2005.
In 2004 the husband purchased the Suburb E property for $625,000.00. I will consider the funding of this purchase below in these reasons. The husband, the wife, T, S and the second respondent lived in this home after their return from New Zealand. The wife had moved her furniture and personal effects into the residence early in July 2005.
The husband and wife married in January 2006 and continued to live in the Suburb E property with the second respondent, T, S and Y until early 2009. The husband obtained advanced professional qualifications in 2008 and they decided to move to Town W to enable him to open a private practice in that district.
In August 2009 the husband and wife purchased jointly the property A Street, Town G, for $885,500.00. I will consider below in these reasons the details of the funding of the purchase of this property.
When the husband established his practice he caused to be incorporated a company known as A Malik Pty Ltd. He is the sole director and shareholder and thus has absolute control over the operations of this entity.

Since March 2010 the second respondent has been employed by the husband, or more correctly A Malik Pty Ltd, as his practice manager. The wife contended that he is paid an excessive salary package. I will consider this issue below in these reasons.
In November 2009 the wife assisted her mother, Ms L, to move from Adelaide into the home at Town G. Ms L signed a lease and the arrangement apparently was that she would pay rent of $140.00 and $100.00 per week for food. Shortly after the wife’s mother signed the lease, she withdrew $20,000.00 in cash from her bank account to cover her food costs and rent. The wife retained this money in cash initially and then deposited $18,000.00 into her bank account. She used the balance of $2,000.00 for her own purposes. After separation on 22 January 2010, she paid $18,000.00 and additional sums to her mother.
Upon separation the wife, Y and Ms L moved into the Suburb E property, which previously had been unoccupied. The husband has paid the mortgage and outgoings in respect of this property. He has also paid spouse maintenance of $200 per week since interim orders were made by consent in the Federal Magistrates Court on 31 March 2010.
There was a dispute as to the amount of time which Y spent with the father between the date of separation and the first interim orders made on 31 March 2010. The mother alleged that they spent time together in her presence on approximately nine occasions for about two hours. The father seemed to suggest that Y spent no time with him prior to 9 April 2010, apart from a brief meeting at a Hungry Jacks restaurant on 12 March 2010.
The interim orders of 31 March 2010 provided that Y spend time with the father each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday and each Wednesday from 1.00pm until 8.00pm. These orders were expressed to be made pending further interim hearing. On 6 September 2010 the orders were varied so as to provide that Y spend time with the father from 5.00pm on Friday until 6.00pm on Sunday each alternate weekend and from 8.00am or 9.00am on Tuesday until 5.00pm on Wednesday in each other week. These orders provided further that Y spend half of all school holidays with the father.
On 5 January 2009 the second respondent married Ms V, who then lived and worked at Town P in Western Australia. He obtained employment at Town P and relocated in November 2009. He was obliged to resign in March 2010, after he failed an English language test. His unchallenged evidence was that he intends to resit this test and again move to Town P. He has applied for permanent residency in Australia.

APPROACH TO THESE PROCEEDINGS

Parenting Issues

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act1975 (Cth) sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
[8] Sub-section (1) of s 65DAA is headed “Equal time” and provides:
‘If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.’
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
‘(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.’
Sub-section (3) explains what is meant by the phrase “substantial and significant time.
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents
…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
In Cowley v Mendoza FamCA 597; (2010) 42 Fam LR 436 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to his Honour for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·       apply the presumption of equal shared parental responsibility;
·       determine whether there is abuse of a child or family violence, which means that the presumption does not apply;
·       determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility;
·       if the presumption applies:
¨determine whether it is in the child’s best interests for there to be an order for equal time with each parent;
¨make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(b)how far apart the parents live from each other; and
(c)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(d)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(e)the impact that an arrangement of that kind would have on the child; and
(f)such other matters as the court considers relevant.
¨as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable;
¨if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order;
·       if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

Property Issues

According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
·       firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined;
·       secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other;
·       thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution;
·       finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.

THE EVIDENCE AND WITNESSES

The applicant wife relied on affidavits which she swore on 6 September 2010, 29 June 2011 and 2 November 2011, together with her Financial Statement sworn on 17 October 2011. She intended to rely upon an affidavit of her mother, Ms L, sworn on 28 June 2011 but this witness was unable to give evidence by way of cross examination. I can thus attach no evidentiary weight to the contents of her affidavit.
The wife’s Outline of Case referred to an affidavit by one Mr K, of unknown swearing date, who was described as “adversarial witness for the wife.” It appears that this affidavit was never filed and there was no further reference to Mr K at any stage of the proceedings.
The first respondent husband relied on affidavits which he swore on 30 June 2010 and 18 October 2011, together with Financial Statements sworn on 1 July 2011 and 18 October 2011. The second respondent relied upon affidavits which he swore on 22 June 2010 and 1 July 2011.
The following expert reports were in evidence:
1.      Valuation by Ms Z of the company A Malik Pty Ltd dated 5 October 2011;
2.      Valuation by Ms MD of the property C Street, Suburb E dated 8 June 2011;
3.      Valuation by Mr X of the property A Street, Town G dated 2 June 2011;
4.      Family Report dated 14 December 2010 by Ms Q.
The real estate valuers were not required for cross examination but Ms Z and Ms Q gave oral evidence.

PARENTING ISSUES

The Presumption of Equal Shared Parental Responsibility

In an affidavit of 29 June 2011 the mother deposed:
67. On 5 July 2010, the day after [Y] has spent time with [the father], [Y] said words to the effect: ‘Uncle [M Malik] says that Nana is mean and he hates her.’ At the time [Y] was playing with dolls and I observed she was inserting sticks in the doll’s bottom. She also had a small fluffy toy and she said words to the effect of: ‘Mummy can you come and please touch here’ referring to the area under the tail. She also said to me words to the effect: ‘can you kiss me here’ referring to her vaginal area. She said to me words to the effect: ‘daddy puts his hand there and kisses his hand to pretend.’ In relation to her asking me to kiss her private area she asked me this on approximately four times over a two month period.
In the same affidavit the mother deposed as follows:
63.    As soon as I met [S] in 2004 I observed her clinching her legs together and becoming sweaty. Everyone in the family including [the father] and [Mr M Malik] noticed it. She generally did it in the lounge room in front of everyone. She exhibited this behaviour constantly, in that whenever I saw her sitting down, I observed her doing the same activity. [The father] said to me at the time words to the effect: ‘I am concerned that [S] has been sexually abused while in [Ms H’s] care.’ I do not know if he raised this allegation in the New Zealand court case. When [S] was about seven years of age she ceased this activity.
64.    About one year prior to separation I noticed that [Y] was doing the same behaviour as [S], namely clinching her legs together and becoming sweaty. [The father] noticed it too and used to become upset with [Y]. As a punishment [the father] use to take her to her room and tell her off by saying to her words to the effect: ‘I want you to stop what you have been doing.’ She used to get very upset and cry. I tried to talk to her about it and told her words to the effect: ‘What you are doing is not right. Why do you do it?’ to which [Y] said to me words to the effect: ‘Because it feels good.’ She was doing this activity constantly.
65.    In the first couple of months after our separation her behaviour of clinching her legs together and becoming sweaty increased, however, from about October 2010 the frequency of her doing this decreased, however, she still does it occasionally. I do not know how or why [Y] is doing this. She could have learnt this activity from [S] or there might be other reasons in relation to it. I raised this issue in relation to her behaviour with the family consultant during the course of the preparation of the family report.
In fact, there was no reference to these allegations in the family report. In cross examination the family consultant categorically denied that the mother raised these matters with her.
In cross examination the mother said: “I think sexual abuse is the worse thing you could accuse someone of.” She said also “there is no firm evidence that there is something going on so I have no reason to stop him seeing the child.”
Ultimately, it seemed to me that the mother advanced no allegation that the father sexually abused Y. She made no submission at the end of the trial that Y was sexually abused by the father or that she is at any such risk in the future. She sought orders that Y spend time with the father on alternate weekends and for half school holidays on an unsupervised basis, which is completely inconsistent with any allegation of sexual abuse.
The mother alleged that the father sexually assaulted her in 2002 and 2010. This serious allegation was not explored during the trial. The mother made no report of these alleged assaults to police and first raised this allegation in her affidavit of 29 June 2011. In my view, there was insufficient evidence to ground a finding that the father subjected the mother to any sexual assault.
The mother, the father and the Independent Children’s Lawyer (ICL) proposed that there be equal shared parental responsibility. I am satisfied, and I find, that neither parent has subjected Y to abuse or engaged in family violence. I am satisfied, and I find, that it would be in Y’s best interests for her mother and father to have equal shared parental responsibility. It is clear that they both love her dearly and are committed to making the best possible provision for her future. In my view, Y would greatly benefit from an appreciation that both of her parents have a keen interest in her and want to be involved in important decisions which will affect the course of her life.
It is thus necessary that I consider whether Y should spend equal time with each of her parents. I will do so by reference, inter alia, to the primary and additional considerations prescribed by s 60CC of the Family Law Act.

THE PRIMARY AND ADDITIONAL CONSIDERATIONS

It is implicit in the proposals of the mother, the father and the ICL that they all consider that Y will benefit from a meaningful relationship with each of her parents. Both the mother and father sought orders that Y spend unsupervised weekends and block holiday periods with her other parent. The father’s alternative proposal would put in place a week about equal time regime.
I have found that neither parent has subjected Y to any form of abuse or exposed her to family violence. Certainly she has not been neglected by either of her parents. Nothing in the evidence suggested any need to protect Y from abuse, neglect, or exposure to family violence in the future.
Y is only six years old, thus her views as to parenting arrangements carry very little weight. There was some indication in the family report that the father and the second respondent may have attempted to influence Y to say during the interview that she wished to live with them.
The family consultant saw Y with the father, T and S on a Thursday and in the company of the mother on the following day. She noted:
Once [Y] had overcome the unfamiliar situation and her initial shyness, she was happy and relaxed on each of the days that she attended the family report interview. The exception was when she came in with her mother. At the beginning of our play session [Y] was impatient to tell the family consultant that she had forgotten to say how much she liked the kitten that Uncle [Mr M Malik] had given her when she came yesterday.

The family consultant noted that Y enjoyed playing with puppets during the observation session with her father and her sisters. When she was observed with the mother the next day, Y brought with her a puppet which the father had given her on the previous afternoon.
The family consultant concluded:
The court will not be able to place weight on [Y’s] views because [Y] is just five years old. However, her presentation and what she said during her play/interviews appear to indicate that there was subtle and not so subtle influence on [Y] to be disposed to be positive about with her father. However, it is assessed that [Y’s] primary attachment will be with her mother because [the mother] had cared for her most of the time since her birth and that she would be the parent to have been providing [Y] with constancy of care.
The father maintained that he experiences considerable difficulty in persuading Y to return to the mother after she has spent time with him. In oral evidence he said: “She gets very distressed, ballistic, physically resists going back to [the mother]. I explain to her that it is not the end of the world and she will come back, we play a little more. Sometimes I could not get her to the car after playing a bit more, then we try taking a toy or one of her sisters comes and then she gets in the car.”
The father seems to suggest that this behaviour demonstrates a wish on Y’s part to live with him. In oral evidence he conceded, however, that she says she misses her mother when she is with him. He added that she misses him when with her mother but gave no indication of the source of any such knowledge.
I am not persuaded that any apparent reluctance on Y’s part to leave the father and return to the mother can properly be considered a valid expression of a wish to live with him. There could be any number of explanations, including inducements such as those observed by the family consultant during her assessments.
I am not persuaded that this alleged behaviour on the part of Y demonstrates a stronger relationship with the father than the mother. The histories provided by both parents clearly indicate that the mother has always been the primary carer, as the father devoted much time to his employment, qualifications and the establishment of his practice. The mother, on the other hand, remained in the home and cared for the three children.
The family consultant observed that Y has a close relationship with each of her parents but had no doubt that the mother has been the primary carer since birth. She also concluded that Y has a “good” relationship with T and S but considered the age differences of eight and six years would “by nature limit the amount of common interest [Y] would have with her older siblings and dilute the issue of separating siblings.”
Y no doubt enjoys a close relationship with her paternal uncle, having lived in a household with him from her birth until he moved to Town P in November 2009. As noted, he intends to return to Western Australia to live with his wife at an unspecified time in the future.
The father alleged that the mother prevented Y from spending time with him in the early stages of the separation. There was a dispute as to how frequently Y saw the father between the separation on 22 January 2010 and the interim orders of 31 March 2010 but there is no doubt that they spent time together at a Hungry Jacks restaurant on 12 March 2010.
In my view, both parents could have dealt more constructively with the events of 12 March 2010. The father arrived at the mother’s home with T and S without prior arrangement and asked to see Y. The mother refused to open the door, so the father left with T and S. All three children became very upset but, eventually, they were able to spend some time together on that day after the mother and father reached an agreement by telephone.
The mother maintained that she was reluctant to leave Y with the father, without the security of interim orders, because she feared that he would not return her. She based this fear on his retention of T and S in 2004, allegedly in breach of an agreement with their mother. She readily consented to interim orders for Y to spend time with the father on 31 March 2010, which was the first return date of her initiating application.
The father alleged that the mother has failed to comply with interim orders for Y to spend time with him on several occasions. The competing allegations in their affidavits suggest there was some confusion about dates following both sets of interim orders. In any event, the father raised no complaint of any difficulties after 24 May 2011.
In my view there is some basis for concern as to the father’s willingness and ability to facilitate a relationship between Y and the mother, in the event that she lives in his primary care. This concern arises from the history of T’s and S’s contact with their mother after the father assumed their primary care. The mother’s uncontradicted evidence was that they saw their mother for only one week between February 2004 and August 2005 and then only as a result of court orders.
The current position is that T and S spend time with their mother in the father’s home each alternate weekend. He maintained that this arrangement is necessary because she does not have permanent accommodation. The fact is, however, that they had little contact with their mother prior to January 2010.
I have no concerns that the mother, as the primary carer, would comply with orders for Y to spend time with the father and otherwise encourage and facilitate their relationship. In my view, she has demonstrated that she will do so since interim orders were put in place on 31 March 2010.
A move from primary residence with the mother to the father would be a major change for Y. She has lived with the mother for the whole of her life and, as noted, the family consultant assessed that she is her primary attachment figure. In oral evidence the family consultant opined that the effect of this change would be “confusion, distress” and a situation which Y “would have difficultly understanding.” She agreed to a suggestion that a change in primary residence would be “destabilising” for the child. She said further “the child is already experiencing a lot of stress and a change would disrupt her.”
The present arrangement whereby Y lives with the mother and spends regular time with the father and her sisters has now been in place for approximately two years. As noted, I am not persuaded that Y’s reluctance to leave the father and return to the mother is an indication of a problematic relationship or dissatisfaction on her part of the current arrangements.
Pursuant to an agreed variation of the interim orders of 6 September 2010, the father delivers Y to school on alternate Mondays and Wednesdays. He leaves Town G at about 7.00am and Y sleeps in the car in her pyjamas for all of the 60 minute trip. At Suburb J she changes into her school uniform in the car. They eat food which the father has brought or buy donuts at Suburb J shopping centre. Y does not shower or clean her teeth on these mornings.
The ICL opposed a continuation of these arrangements and suggested instead that Y spend one evening each week with the father from the conclusion of school until 7.00pm. The father opposed any change to the current arrangement because Y would not see her sisters if mid-week time was limited to an afternoon. He submitted that the benefit to Y of spending four nights per fortnight in his home outweighs the practical difficulties of these two mornings.
The mother expressed concern about the amount of travel necessitated by these arrangements. She considered, however, that the benefits to Y of spending this additional overnight time with her sisters outweigh the practical difficulties. The ICL expressed concern about the practicalities for Y on these mornings. I share these concerns but I will not interfere with a reasoned decision of responsible parents who both support a continuation of this arrangement.
The mother’s decision to abandon her application to relocate with Y from Newcastle to Sydney removes many practical difficulties of her being able to maintain personal relations and direct contact with each of her parents and her sisters on a regular basis. The father maintained that he would move to Newcastle if his application for primary residence is unsuccessful. He conceded, however, that he could not do so for at least 12 months due to the leasing arrangements in relation to his business premises.
Each of the parents conceded that the other has a demonstrated capacity to provide for Y’s needs. In oral evidence the mother agreed that the father is a good parent who “was very involved and dedicated but he had a lot of help.” The father conceded that the mother “did a very good job” and said “I have no criticism of her care of the children.”
Nonetheless, strident criticism was levelled at the mother in final submissions on behalf of the father. It was submitted that the mother’s emails to the father in July 2011 (annexure 44 to the mother’s affidavit sworn 2 November 2011) establish that “she will stop at almost nothing.” Certainly the mother expressed her perception of various issues between herself and the father in strong terms in these emails. She raised her concern that Y was exhibiting behaviour similar to that of S but she sought only the father’s consent for professional assistance. I do not accept the submission that these emails show the mother “will stop at almost nothing” to achieve her aims in this litigation.
It was next suggested that the mother’s use of emails between T and her friend JT in this litigation amounted to “disgraceful conduct”. The mother annexed to her affidavit copies of emails exchanged in 2010 in which T wrote that she wanted to kill herself and felt that she was hated by others at her school.
The mother conceded that she knew T’s password and that she read her emails until about October 2011. Obviously, T had no idea that the mother used her emails in these proceedings. Similarly the mother annexed to her affidavit extracts from T’s diary, without her knowledge or consent.
In my view the mother showed a patent disregard for T’s privacy by using her diary and emails for her own perceived advantage in these proceedings. It is most regrettable that she elected to do so. Clearly T has been an emotionally troubled child for some years and is likely to perceive the mother’s actions as a betrayal, if she becomes aware of this situation.
On the other hand, the mother appears to have shown considerable empathy toward T during the parties’ relationship. She recognised her neediness and arranged professional assistance to help T with her emotional problems. For example, in 2009 she arranged family therapy and counselling for T. I am inclined to regard the mother’s use of T’s emails and diary in these proceedings as an isolated lapse of judgment on the part of an unrepresented litigant.
The mother was further criticised for the contents of emails which she wrote to T in July 2010. The topics canvassed are a matter of some concern, given that T was only 12 years old. On the other hand, the mother had to make some response to the email from T which triggered the exchange. T’s email expressed great sadness at the loss of the mother from her life and concern that she may in some way have caused the breakdown of the marriage.
Overall it seems to me that the mother has a proven capacity to provide for Y’s needs in all respects. She was the subject of some criticism for her preference for naturopathic remedies but I am satisfied that she would take all proper steps to address any of Y’s future health issues.
The father, too, has a considerable capacity to provide for Y’s needs. It is of some concern that he seems to allow her to eat more sweets and sugary foods than can possibly benefit her general and dental health. For example, he would be wise to ensure that she has a healthier breakfast and cleans her teeth when he delivers her to school on alternate Mondays and Wednesdays.
In practical terms, the father would be reliant on others to provide day to day care for Y if she were to live primarily with him. In the past he has had assistance from the mother, his brother and the paternal grandmother who lived with the family between October 2005 and October 2006. The father said that family members would come from Egypt on one year visas to assist him if Y was placed in his primary care.
The fact is that the father has real constraints on his time and would need considerable assistance if he were awarded primary residence or a week about arrangement is put in place. The position of the father’s brother is uncertain and I cannot assume that he will be available to assist with the care of Y in the future. I had no opportunity to form any impression of the relatives whom the father proposes to bring from Egypt to assist with Y’s care. This component of the father’s proposal seems to me to involve considerable uncertainty.
In my view the father’s application for primary care or a week about arrangement could be considered an indication of a lack of insight into Y’s emotional needs. He did not seem to take into account the effect on Y of being separated from her life long primary carer. He advanced as his reason for seeking primary residence “the way my access has been compromised.” This basis for a major disruption to Y’s life seemed to me to indicate a deficiency in the father’s child focus.
Nothing in the evidence gave me any reason for concern as to the attitude of either the mother or the father to Y and the responsibilities of parenthood. They are both strongly committed to their daughter and obviously want the best in life for her.
The mother alleged that the father shouted at the children and threatened to hit them with a slipper during the relationship. She alleged further that he was controlling of her behaviour and, in particular, that he prevented her from resuming her career in an allied health field.
These issues were not explored to any meaningful extent during the trial. My impression was that the father’s means of discipline may have been at odds of that of the mother and reflective of an overall divergence in parenting styles.
The mother alleged that the father’s brother directed violence at her on 16 June 2010. The second respondent denied convincingly in cross examination that he had been violent towards the mother on that day. He conceded he became very upset with her during an argument over her mother’s possessions. He gave unchallenged evidence that the application for an apprehended violence order for the protection of the mother was dismissed on a “no case to answer” basis.
The father pays child support in the sum of $275 per week and contributes to the expense of Y’s accommodation. He has thus fulfilled more than adequately his obligation to maintain the child.
The father has actively pursued opportunities to spend time with Y and participate in major decisions concerning her long term welfare. Regrettably, the high level of conflict between the mother and the father effectively prevents them from engaging in constructive discussion and cooperative decision making. It can only be hoped that this situation will improve once they are free of the stress of these proceedings.

CONCLUSION AS TO EQUAL TIME

The father’s proposal to relocate to Newcastle so as to facilitate an equal time arrangement implicitly acknowledges that this regime is not reasonably practicable in the present circumstances. In my view, an equal time regime will not be in Y’s best interests principally she will be separated from her primary attachment figure and would thus suffer considerable confusion and distress. Accordingly, I will not make an order that Y spend equal time with each of her parents. I am thus then obliged to consider whether it would be in her best interests, and reasonably practicable, for Y to spend substantial and significant time with each of her parents.

CONCLUSION AS TO SUBSTANTIAL AND SIGNIFICANT TIME

The legislation contains no temporal definition of “substantial and significant time” but does detail requirements for an arrangement to fall within this definition. It is necessary for:
b)A child to spend with a parent days which fall on weekends and holidays and also at other times;
c)The parent to be involved in the child’s daily routines and events which are of particular significance to the child;
d)A child to be involved in events which are of particular significance to a parent.
The distinction between equal and substantial and significant time means that one parent will assume a greater proportion of Y’s care. Principally for reasons which I have already identified, and which I now summarise, I conclude that Y should spend the majority of time in the care of the mother.
I am comfortably satisfied that Y would be very distressed and confused if she were separated from the mother. I would take this step only if satisfied, after balancing all relevant considerations, that her medium to long term best interests necessitated this immediate emotional disruption.
Although the father asserted that the mother failed to facilitate Y’s relationship with him, I am satisfied that she has taken all reasonable steps to do so. The mother was prepared to elevate the benefit of Y spending time with her sisters above the practical difficulties and inconvenience of overnight stays with the father on alternate Sunday and Tuesday nights. In my assessment, the mother can be trusted to encourage and facilitate Y’s relationship with her father and sisters.
I have some concerns as to the inconsistency of care which the father proposes to provide for Y by a combination of different people. In my view her stability is far more likely to be promoted by her remaining in the primary care of the mother and spending appropriate time with her father and sisters.
In my view, orders which essentially continue the present arrangement will achieve a balance of substantial and significant time with each parent. Both the mother and father would have the opportunity to participate in Y’s education, school life and extra curricular activities. It was common ground that there should be orders which allow her to be with each parent on special occasions and that school holidays be shared equally between the mother and the father.

SPECIFIC ISSUES ORDERS

I do not propose to make the orders sought by the father to enable either party to remove Y from Australia for holidays. He wishes to take her to Egypt to visit her paternal family but the mother made no proposal for overseas travel.
It is a matter of concern that Egypt is not a signatory to the Hague Convention and that the father has family and financial resources in that country. In my view, the mother’s prospects of securing the return of Y from Egypt in the event of a retention could be slender in these circumstances.
Once these proceedings are concluded, it may be that the mother and the father can develop a level of trust in each other such that she may consent to Y travelling to Egypt. Meanwhile, according to the father, members of the paternal family will travel regularly to Australia and Y will have the opportunity to develop relationships with them. It should be remembered that she has a rich cultural heritage from her father, which she should be able to experience directly at an appropriate time in the future.
In the absence of expert evidence, I will not attempt to adjudicate the parents dispute as to the immunisation of Y. They will need to resolve this issue for themselves.

SETTLEMENT OF PROPERTY

Non-Superannuation Assets

The husband and wife agreed only upon the value of the property A Street, Town G at $845,000.00. Otherwise, there was a dispute as to the existence and value of every other non-superannuation asset which they included in their respective balance sheets.

The Suburb E Property

A single expert, Ms MD, valued this property at $655,000.00. The wife made no application to adduce evidence from an adversarial expert or to cross examine Ms MD. I thus find that the Suburb E property has a value of $650,000.00. The dispute between the parties was as to the respective beneficial interests in the property of the husband and the second respondent.
The second respondent, with the support of the husband, asserted that he holds a beneficial interest in the Suburb E property. They claimed that the husband holds this property as trustee for himself and the second respondent as tenants-in-common in equal shares. Alternatively, they asserted that the second respondent holds an equitable charge over the property in an amount of $341,480.76. In the further alternative, they claimed a constructive trust in favour of the second respondent. All of these claims were resisted by the wife.
The husband and the second respondent alleged a history of financial intermingling between them which commenced in Egypt during the 1980’s. They maintained that the second respondent provided to the husband approximately 20,000 Egyptian Pounds to meet the cost of his professional qualifications and two holidays to Europe.
According to the husband, the second respondent advanced to him approximately $40,000.00 to meet living expenses and the cost of his qualifications in New Zealand between 1996 and 1999. The second respondent also provided a sum of $43,000.00 for a deposit when the husband and his first wife purchased a home in New Zealand.
In early 2004 the husband had two term deposits at the ANZ Bank, with balances of $28,190.00 and approximately $48,000.00. He provided documents to verify the existence of the first, but not the second, of these term deposits. I accept that he made unsuccessful attempts to obtain copies of documents in relation to the second term deposit. He asserted that he also had a term deposit with a balance of $106,225.00 early in 2004 and produced corroborating bank records.
In approximately February 2004 the husband and the second respondent began to look for a property which would be a suitable home for themselves, T and S. They selected the Suburb E property and the husband negotiated a purchase price of $625,000.00. The only evidence as to the quantum of the acquisition costs consisted of a conversation in which the husband informed the second respondent that the total amount required to complete the purchase was approximately $650,000.00.
The husband claimed that he paid the deposit by way of an initial sum of $2,000.00 and the balance of $60,500.00 from his term deposit containing $106,225.00. Documents annexed to his affidavit showed that he paid these sums to a real estate agent and that $45,812.00 was credited to another account in his name on the same day. These transactions are consistent with the husband’s account of the deposit payment.
According to the husband, the second respondent contributed $20,000.00 to the purchase money, by way of credits to his account in amounts of $13,000.00 and $7,000.00. Bank records annexed to the husband’s affidavit showed credits to his account of $13,000.00 on 24 March 2004 and $7,000.00 on 7 April 2004.
The ANZ Bank provided a mortgage advance of $500,000.00 to the husband to assist with the purchase of the property. The husband contributed $125,544.46 to the purchase money.
Banking records established that the second respondent transferred the following sums to the husband:
18.3.08  $12,500.00
$102,802.40
1.5.08   $11,000.00
$120,220.25
21.5.08  $500.00
$11,109.94
Total  $258,132.59
These deposits increased the balance of the husband’s account to approximately $340,600.00. On 21 May 2008 he paid a lump sum of $340,000.00 in reduction of the mortgage, leaving a payout figure of approximately $124,500.00
The second respondent itemised the advances which he allegedly made to the husband in his affidavit of 22 June 2010, as follows:
24.3.04  $13,000.00
27.4.04  $7,000.00
4.7.05  $15,000.00
12.8.05  $23,264.20
7.9.05  $4,653.52
18.3.08  $102,802.40
18.3.08  $12,500.00
1.5.08  $120,220.25
1.5.08  $11,000.00
21.5.08  $11,109.94
21.5.08  $500.00
28.4.09  $43,000.00
Total  $364,050.31
12.7.04  $3,000.00
26.8.04  $2,000.00
21.10.04  $3,000.00
28.2.05  $3,900.00
Total  $11,900.00
15.7.05  $4,250.00
25.7.05  $4,280.45
4.7.08  $7,000.00
Total  $15,530.45
With the benefit of access to banking records, the wife conceded that the second respondent made these advances to the husband. She made no concession that these payments entitled the second respondent to any beneficial interest in the Suburb E property.
The sum of $341,480.76 referred to in the Minute of Orders sought by the second respondent was said by his counsel to be the total of the above advances less the sum of $43,000.00 repaid to him by the husband in October 2009. Having checked banking records, the wife conceded that the husband repaid this sum.
In fact the advances conceded by the wife total $391,480.76 and that figure minus $43,000.00 equals $348,480.76. The difference of $7,000.00 is the amount which the second respondent alleged that he provided to the husband and wife on 4 July 2008 to meet the cost of their airfares to Egypt. The wife said that she understood that the second respondent gifted their airfares to Egypt as a reward for the husband’s advanced qualifications. In any event, the second respondent and the husband established no connection between this advance of $7,000.00 and the Suburb E property.
The husband and the second respondent relied in part on conversations which they allegedly held prior to the purchase of the home at Suburb E to ground their claim that he holds a beneficial interest in the property. It is necessary that I set out in full their accounts of these conversations.
In his affidavit sworn on 22 June 2010 the second respondent deposed as follows:
In about March 2004 and prior to [the husband] entering into a contract to purchase the Suburb E property I had a conversation with him in which I said (in Arabic): “I think the property would suit us both, you could live in the top floor and I will live in the bottom floor. I know it is more than you can afford on your own now so we will buy it together. We will have half each. You borrow as much as you can and then I will pay off half the mortgage and you can pay the rest. If we sell the property before the mortgage is paid off, then I will receive half of the net profit.
In his affidavit sworn on 1 July 2011 the second respondent deposed as follows:
15.    The [Suburb N] Unit was too small to comfortably accommodate [the husband], his two daughters and me. In late 2003 I had discussions with [the husband] about organising more suitable accommodation.
I said
‘The unit is too small for all of us to live together.’
[The husband] said:
‘Yes and I think it would be a good idea to buy a house instead of renting again, especially with the rising house prices.’
Following that conversation, [the husband] and I visited real estate agencies and inspected more than 5 properties that were listed for sale in the Newcastle suburbs neighbouring the [husband’s workplace]. The properties we had inspected were listed for sale at prices in the region of $350,000 to $500,000.
16.    In about early March 2004 [the husband] arrived home from work one day and said to me:
‘There is a property that I want you to see at [Suburb E]. It looks a bit expensive but there is an open house this weekend.’
I replied:
‘I think we should still have a look at it.’
17.    [The husband] and I then attended an ‘open house’ inspection of a 2-storey dwelling at [C Street, Suburb E (Suburb E)]. [The husband’s] two daughters were also present. During that inspection I said to [the husband]:
‘This property should suit us both. You cold live upstairs with the children and I could have the bottom part.’
He replied:
‘Yes, I think it would be good, but it is still more expensive than what I can afford.’
I then said:
‘Don’t worry, I will help you.’
18.    At the time, I was informed as to how much it was listed for but I can no longer recall exactly how much that was. However, I do recall that [the husband] proceeded to negotiate on prices through the real estate agent who was present. The following day, [the husband] and I had the following conversation:
[The husband] said:
‘The agent called and told me that the owner will accept $625,000 for the property we saw at [Suburb E]. That is probably still too much.’
I said:
‘Well why don’t you go to the bank and see how much you can borrow and then I am sure that we can manage to buy it together.’
19.    A few days later [the husband] and I had another discussion in the [Suburb N] Unit in which he said to me:
‘I have spoken with the bank and the solicitor. We will need to have about $650,000 to buy the house and to pay for the solicitor and government charges. The bank will lend me $500,000 but I am worried about whether or not I will be able to make the mortgage payments on that amount.’
I then said:
‘I think the property would suit us both, you could live in the top floor and I will live in the bottom floor. I know it is more that you can afford on your own now so we will buy it together. We will have half each. You borrow as much as you can and then I will pay off half the mortgage and you can pay the rest. If we sell the property before the mortgage is paid off, then I will receive half of the net profit.’
Following that, I also said to [the husband]:
‘What would you want me to do about paying for my share of the house and how we will pay for food and other living expenses? I have just sent money back to Egypt and I only have about $20,000 left here.’
[The husband] said:
‘That will be okay. If I can borrow the $500,000 from the bank then I won’t need you to pay all of your half-share now but only when I need it.’
[The husband] also said:
‘With food and living expenses, you have only to pay one-third because I have the children living with me. It won’t work if we have to keep our living expenses separate. Especially because of how you help me with caring for the children and doing so much of the cooking and shopping.’
I said:
‘But what about the mortgage payments, the rates, the costs of repairs and things like that?’
[The husband] said:
‘You will be responsible for working that out so that we each pay half for those.’
I said:
‘Okay, and what about the electricity and things like that?’
[The husband] said:
‘We can do one-third, two-thirds, the same was with our living expenses.’
20.    In the course of one of my subsequent discussions with [the husband] relating to the proposed purchase of [Suburb E], he said:
‘I have spoken to the solicitor and he has told me that there will be a problem for us to buy the home together. He said that it should be only in my name because you are not a permanent resident. Also, the bank won’t lend me the amount that we will need unless it is in my name only.’
I said to [the husband]:
‘You are my brother. I trust you and I am happy with that and what we have discussed about paying for my share of the home and our living expenses.’
[The husband] said:
‘Okay, we will do it then.’
In his affidavit the husband deposed as follows:
140. In approximately February 2004, [T] and [S] came to live with me and [Mr M Malik]. We lived in a small unit in [Suburb N] so we decided to purchase a property together. Prior to purchasing the property at [Suburb E], I had a conversation with my brother [Mr M Malik] and said words to the effect,
‘If you pay off half the mortgage on the property then you can take half the property.’
[Mr M Malik] relied [sic] with words to the effect,
‘Ok. I will pay half the mortgage on the property we purchase and have a half share in it.’
…
171. In approximately the beginning of March 2008 I said to [the wife] words to the effect,
‘We are having difficulty financially. [The wife’s first name], I am not really happy with the way our finances are going. I get paid a basic salary of $2500 per fortnight, and sometimes even more than that but it is the on call overtime which I cannot guarantee will continue. The mortgage is $1700 per fortnight, we are running 2 cars at a cost of between $550 and $650 per fortnight. This is as much as my basic salary. We still have other expenses. Do you agree [Mr M Malik] will pay over the next few weeks his share in the property?’
[The wife] said words to the effect,
‘Ok I agree no problem. At least there will be no problems with our expenses’.
172. [Mr M Malik] and I sat down with [the wife] again in May 2008 and I said words to the effect,
‘[Mr M Malik] has paid off half the mortgage and he owns half the property. He is entitled to live in this property as long as he wishes even in case of my death. He will also pay half the remaining mortgage on the property. [Mr M Malik] will also be entitled to half the profit if we sell it’.
[The wife] said words to the effect,
‘I agree with that’.
…
175. On 21 May 2008 I spoke to [the wife] and said words to the effect,
‘[Mr M Malik] and I have paid the share in the mortgage, there is about $120,000 left and the weekly mortgage amount will be much less that what I was paying. This will be my share I have to pay it’.
[The wife] said to me words to the effect,
‘That is good we will be happy now we will have lots of money and will be able to go to Egypt’.
In her affidavit sworn on 2 November 2011 the wife denied that she was a party to any such conversations. She was unshaken in her denials in cross examination. She denied further that there was ever an arrangement whereby the second respondent lived downstairs and that she, the husband and the children occupied the remainder of the property.
If it is accepted that these conversations occurred, there may well have existed an agreement between the husband and the second respondent in relation to the ownership of the Suburb E property. I accept that the husband and the second respondent discussed the acquisition, funding and ownership of the property. It does not necessarily follow that their actions and conversations resulted in the creation of any trust.
It seems that the husband and the second respondent jointly intended that both of their names would appear on the certificate of title but the migration status of the latter prevented him from owning real property in Australia. They then agreed that the husband would borrow to his maximum capacity and the second respondent would assume responsibility for half of the resulting mortgage debt. In return for payment of half of the mortgage liability, the second respondent would acquire a beneficial entitlement to a half share in the property.
These alleged conversations would suggest that the second respondent and the husband reached a simultaneous or complementary agreement in relation to sharing of household expenses, repairs and outgoings such as rates. The second respondent deposed that he and the husband agreed that he (the second respondent) would keep written records of the payments made by each of them. He deposed that he kept these records in an exercise book, a diary and on loose pages in a plastic sleeve. The wife admitted that she photocopied some of the second respondent’s documents but maintained that she handed them all to the husband. The second respondent asserted that these accounting records are currently not in his possession.
I am inclined to accept the second respondent’s evidence that these records are not in his possession but I do not necessarily infer that the wife retained the documents. The wife is in no position to assert, as she did, that these records never existed. It seems to me that the second respondent would have tendered these records if he had been in a position to do so. I thus draw no inference adverse to his case by his failure to tender these records.
It is instructive to consider the use made of the money advanced to the husband by the second respondent. According to the second respondent the sum of $15,000.00 advanced on 4 July 2005 consisted of a deposit into the husband’s account of $10,158.42, with the balance converted to New Zealand dollar travellers cheques. He maintained that he transferred the amount of $23,264.20 directly into an account in the husband’s name in New Zealand on 12 August 2005. These advances do not seem to me to fall within the parameters of the alleged agreement in relation to the Suburb E property.
As noted, the second respondent transferred a total of $258,132.59 into the husband’s account during the months of March and May 2008. Without these transferred funds, the husband could not have reduced the mortgage by $340,000.00.
There was no admissible evidence as to how the husband applied the alleged cash advances from the second respondent totalling $11,900.00 between 12 July 2004 and 28 February 2005. Accordingly, no connection whatsoever was established between these funds and the Suburb E property. The advances of $4,250.00 on 15 July 2005 and $4,280.45 on 27 July 2005 were said by the second respondent to be on account of “[the husband’s] legal fees” and must relate to the New Zealand litigation. These funds, too, have no connection whatsoever with the Suburb E property.
The second respondent thus established that he invested funds of $258,132.59 in the Suburb E property in addition to his initial contribution of $20,000.00. The remaining money advanced by the second respondent was used to pay for airfares to Egypt, legal fees in the New Zealand litigation and for unspecified purposes while the husband and wife lived in that country in 2005. As noted, there was no admissible evidence as to the fate of cash advances totalling $11,900.00 between 12 July 2005 and 28 February 2005.
Counsel for the second respondent submitted that the husband holds the property on an express trust. In Cierpiatka v Cierpiatka and Cierpiatka (1999) FLC 92-864 the Full Court held that there are three requirements for the creation of an express trust, being:
·       A manifest intention to create a trust;
·       Certainty as to the subject matter; and
·       The purpose of the trust and the extent of the benefit must be known.
In my view it is arguable that there was sufficient evidence to satisfy the first of these two requirements. It seems clear that the husband and the second respondent intended that the latter obtain a beneficial interest in the Suburb E property. I consider, however, that the purpose of the supposed trust and the extent of the benefit to the second respondent remained unclear at the end of the trial.
The second respondent maintained that he was to keep accounting records to identify and balance payments by himself and the husband for the mortgage, repairs to the property, outgoings including rates and electricity and the living expenses of the household. In some way, the suggested arrangement apparently was to be that their payments for mortgage instalments, “the rates, the costs of repairs and things like that” would be equalised. The point at which the second respondent was intended to assume an entitlement to a half share in the property was unclear. In these circumstances, it seems to me that it is impossible to identify the purpose of the trust and the extent of the benefit to the second respondent. I thus find that the evidence is insufficient to establish an express trust.
Counsel for the second respondent next submitted that the husband holds the property on a resulting trust. The difficulty with this submission is that authorities such as Calverley v Green (1984) 155 CLR 242 establish that the direct financial contributions to the purchase of a property are the sole determinant of the parties’ proportionate shares in equity under a resulting trust. Mortgage payments do not constitute a contribution to the purchase price because the beneficial interests of the parties are to be ascertained as at the acquisition of the property. The husband’s liability pursuant to the mortgage was a direct contribution to the purchase price: Calverley v Green. The payment of acquisition costs is also a direct contribution to the purchase price: Currie v Hamilton [1984] 1 NSWLR 687.

Accordingly, the only payment by the second respondent which could ground a resulting trust in his favour is his initial contribution of $20,000.00. The mortgage repayments could, however, assist him to establish a constructive trust or an equitable charge in his favour. I am satisfied, and I find, that the husband holds the property on a resulting trust for himself and the second respondent in the proportions of their initial contributions to the purchase money. The husband contributed approximately $125,500.00 plus the mortgage liability of $500,000.00 and the second respondent $20,000.00, which suggests a total cost of about $645,000.00. The husband thus contributed some 97 per cent and the second respondent three per cent of the purchase price. I thus find that the husband holds the property on trust for himself and the second respondent in the proportions of 97 per cent and three per cent respectively.
The Full Court in Cierpiatka considered the circumstances in which a constructive trust can be reasonably be imputed in respect of real property. Their Honours said:
47. After considering Dillwyn v. Llewelyn (1862) 45 ER 1285 and Riches v. Hogben [1985] 2 Qd R 292 , the majority of the High Court said (at 475):
“[6]   In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of very active steps by the defendant.”
48.    Their Honours went on to say (at 476):
“[10] The present case fell within the category identified by the Privy Council in Plimmer v Mayor, Councillors and Citizens of the City of Wellington [(1884) 9 App Cas 699 at 714] where “the court must look at the circumstances in each case to decide in what way the equity can be satisfied”. Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust.”
49.    The Court then returned to Riches v. Hogben and cited with approval the following statements of McPherson J.:
“A consequence of applying the principle may be to complete an otherwise imperfect gift, as in Dillwyn v Llewelyn, or to give effect to an agreement that, for want of certainty or consideration or of some other essential element, falls short of constituting an enforceable contract. Many of the reported cases are concerned with imperfect gifts; but there is of course a sense in which all agreements made or promises given without consideration are imperfect gifts of the benefits they purport to confer. What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise. If there is such a promise, then the plaintiff must resort to the law of contract in order to enforce it, it being the function of equity to supplement the law not to replace it. The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates. In that respect it represents the precise converse of what was said by Jessel MR in Ungley v Ungley to be the basis for enforcing the contract in that case. Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff’s part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise. That is why in Dillwyn v Llewelyn, where the son built on land promised but not effectively conveyed to him by a memorandum signed by his father, Lord Westbury LC said that the only inquiry was “whether the son’s expenditure, on the faith of the memorandum, supplied a valuable consideration, and created a binding obligation”.”
In Cierpiatka the brief facts were that a husband and wife expended their own funds to construct a home on a suburban plot of land owned by his parents and upon which their residence was located. The lot was subdivided but not transferred to the husband in accordance with an alleged oral agreement. Upon the husband’s father’s death, his mother inherited both subdivided lots by survivorship.
The Full Court considered that the appropriate remedy fell short of the imposition of a constructive trust. Their Honours took the view that the imposition of an equitable charge was sufficient to achieve equity between the parties.
I take the same view in the present circumstances. It is possible to calculate precisely the amount paid by the second respondent in reduction of the mortgage. His counsel conceded that he should receive no interest because he has had the benefit of occupation of the property. I thus find that the Suburb E property is subject to an equitable charge in favour of the second respondent in an amount of $258,131.59.

A Malik Pty Ltd

This company was valued by a single expert, Ms Z, who prepared a report dated 5 October 2011. She addressed two scenarios: firstly, with the second respondent being an employee and secondly, if he were not engaged as the practice manager. She assessed the value of the company at $67,484.00 and $146,718.00 in each of these scenarios respectively.
Ms Z adopted a net asset backing basis for her valuation of the company, as calculated at page 15 of her report. This amount simplicitor constituted her valuation of the company on the basis that the second respondent is not an employee. In the alternate scenario, Ms Z added back as an asset of the company the salary and superannuation paid to the second respondent and deducted 30 per cent for tax which would be payable on the increased profit.
In cross examination Ms Z emphasised that she is not a remuneration expert. Nonetheless, she opined in her report that the second respondent should properly receive a total salary package of $80,000 per annum. To achieve this figure she applied information from a pay scale website to a job description which the husband provided for the second respondent. The website indicated a pay range of $40,000.00 to $80,000.00 per annum for administration managers and Ms Z concluded that the commercial remuneration for the second respondent should be the highest figure.
In cross examination Ms Z said that she was unaware that the second respondent holds professional qualifications. She said that she was of the view that his job description could be fulfilled by a person without the relevant professional qualifications, hence this fact did not change her opinion.
The appropriateness of the second respondent’s level of remuneration in fact did not feature in Ms Z’s valuation of the company. The alternate scenarios simply omitted or included his actual salary and superannuation, in their entirety, and made an allowance for increased tax. Accordingly, my only option is to accept one of these alternatives as the value of this asset.
It seems to me, however, that I can take into account for the purposes of s 75(2)(o) the husband’s own job description for the second respondent and the reasons why he elected to pay to him a package of $113,192.00 in the 2011 tax year. Inter alia, the husband wrote in his job description: “during this very stressful time in my life [Mr M Malik] has been an invaluable support to me. This matter has had an impact on my stress level at work. I did not want this to affect my […] performance and did not want to put my [clients] at risk, especially as I […]. [Mr M Malik’s] presence in my practice is priceless and has enabled me to keep working.”
This assistance provided by the second respondent to the husband seems to me to be of a personal nature and well beyond what might reasonably be expected of a practice manager. It thus appears that the husband chooses to remunerate the second respondent for personal assistance as well as commercial input into his practice. It might reasonably be considered that the husband chooses to engage in a form of income-splitting with the second respondent, especially in light of their history of financial intermingling.
The reality is the second respondent is employed as the husband’s practice manager and, obviously, is entitled to remuneration for his work. As there was no evidence as to an appropriate salary package from a suitably qualified expert, I can find only that the value of the shares in the company A Malik Pty Ltd is $67,484.00.

The Husband’s Toyota Motor Vehicle

The wife contended that the husband’s car is valued at $18,000.00 and the husband chose a figure of $16,000.00 but neither party adduced any independent evidence. Accordingly, I can only adopt the husband’s admission against interest in his Financial Statement and find that the value of the Toyota motor vehicle is $16,000.00.

Bank Accounts

In his Financial Statement sworn on 18 October 2011, the husband disclosed that he had two ANZ Bank accounts with balances of $924.00 and $7,250.00. The wife sought to ascribe values of $7,059.00 and $171,872.00 to these accounts. Apparently, she extracted the figure of $7,059.00 from bank statements produced on subpoena and selected the balance on the last date of 17 May 2011. In her balance sheet she commented “to note $60,064 was additional cash withdrawals at supermarkets between 17 September 2010 and 17 May 2011.” I am puzzled as to what significance I am to attach to withdrawals which amount to about $650.00 per month, in circumstances where the husband was supporting himself and his daughters, paying spouse maintenance and child support and meeting the outgoings in respect of the Suburb E property occupied by the wife.
The wife relied on the balance of the husband’s second ANZ Bank account as at the date of separation. Bank statements in respect of this account (Exhibit 9) show balances of $171,872.00 on 18 January 2010 and $171,807.00 on 25 January 2010, the separation date being 22 January 2010. On 1 February 2010 the husband transferred a sum of $120,000.00 to account number … . Bank statements show transfers from this account to the husband’s account of $30,000.00 and $50,000.00 on 27 November 2009 and $80,000.00 on 24 December 2009.
In an affidavit which the husband swore on 25 March 2010 (Exhibit 9) he explained that he transferred these funds from the company bank account to his account in order to offset interest on his mortgage debt. In oral evidence the husband said “it went back into the business account because it was not my wages.” I assume that the husband realised or was informed that funds belonging to the company could not properly be utilised to offset interest on his personal mortgage. In these circumstances there is no possible justification for ascribing a value of $171,000.00 to the husband’s ANZ Bank account.
In her balance sheet the wife also sought to attach significance to cash withdrawals at supermarkets totalling $37,203.00 between 22 March 2010 and 29 December 2010. I make the same observation as to these withdrawals, which amount to about $330 per month, as was the case with similar debits to the husband’s other ANZ Bank account.
The wife sought to include as an asset the bank account of A Malik Pty Ltd, to which she ascribed a value of $51,655.00. Her balance sheet asserted that this figure was the credit in the account of the date of separation. As noted, Ms Z valued the company on a net asset backing basis and included its bank account in this calculation. It would thus be a clear case of double counting to include the company bank account as a separate asset.
The wife included in her balance sheet as assets of the husband “unclaimed property overseas” and “unclaimed income from rent.” She did not purport to ascribe a value to these supposed assets. There was clearly no evidence to establish the existence, let alone the value, of any such asset.
The wife relied on the husband’s affidavit evidence that he contributed the equivalent of approximately $7,000.00 to a property in Egypt owned by his mother in 1992. The husband said in oral evidence that this property is owed solely by his mother and that he has only a right of occupation from time to time. There was no evidence that the husband holds any beneficial interest in this property, nor of its value.
The wife asserted in her balance sheet that the husband represented in a bank loan application in 2004 that he received rent of $1,660 per month. No such document was in evidence and this allegation was not put to the husband. The wife thus failed to establish the existence of any such asset.
The wife next purported to include in the list of assets amounts of $2,063.00 and $1,587.00, being balances of bank accounts allegedly held by the husband in Egypt. She relied on a document in the Arabic language dated 4 December 2009 (Annexure L to the wife’s affidavit sworn 29 June 2011) and a translation thereof. This translation referred to “[The husband’s] accounts” and listed balances of 13,000 and 10,000 Egyptian Pounds.
The second respondent said that he wrote this document after a conversation with his sister “to check on my accounts and my mother’s accounts in Egypt,” during or after which he made notes of certain calculations. He said that the format of the translation was different to that of his notes, which made no reference to “Bank of Egypt” or “[the husband’s] accounts”. He maintained that his notes meant that he has 23,000 pounds in a term deposit in Egypt, which is to be reviewed every three months. The second respondent gave this evidence in a convincing manner.
The husband firmly denied that he has any accounts with the Bank of Egypt or the National Bank, as listed in the wife’s translation of the Arabic document. The wife bore the onus to prove that the husband held Egyptian bank accounts and, in my view, she failed to do so.
The wife purported to include in her balance sheet as an asset of the husband “unclaimed bank accounts overseas, Saudi Arabia, Egypt”. She indicated no balance of these supposed accounts and suggested no basis upon which she made this assertion.
The wife included in her balance sheet the husband’s paid legal fees in an estimated amount of $50,000.00. There was no evidence of the amount which he has actually paid or to the effect that this money came from any source other than his post separation income. I will not include in the list of assets any amount on account of the husband’s paid legal costs.
I will also omit from the list of assets the wife’s paid legal fees, on the husband’s invitation to do so through his counsel. The evidence provided no justification for the wife’s contention that the paid legal costs of the second respondent should be included in the list of matrimonial assets. There was absolutely no suggestion that any matrimonial funds were applied to the second respondent’s legal costs.
The wife also sought to include a number of add backs as assets, which I now list as set out in her document:
·       “Monies paid to H’s brother as “income” from March 2010 to 30.06.11 - $122,308
·       Monies paid to H’s brother as “income from 01.07/11 to date – NK
·       Superannuation contributions made from [Mr M Malik’s] benefit: March 2010 to June 2010 - $11,007
·       Superannuation contributions made for [Mr M Malik’s] benefit July 2010 to date
·       Rent and accommodation expenses for [Mr M Malik’s] from April 2004 (except Dec 2009 – April 2010). To be substracted [sic] from any “loan” from [Mr M Malik] & the intermingling of their accounts - $0
·       Wages paid to [A Malik Pty Ltd] to husband but never banked by husband - $10,000
·       Income from [Mr FG] not banked in [A Malik Pty Ltd] account or husband’s personal accounts - $9,100
·       Term deposits husband gave to [Mr M Malik] in about November 2004 allegedly for repayments of old debts! – E$76,000
·       Money to support his mother [Ms AE] – NK
·       Compensation value of missing items [Ms L] - $800
·       Replacement cost of reverse cycle air conditioner - $684
·       Total - $229,899”
There was no evidence to support any of these contentions. The salary package paid to the second respondent by A Malik Pty Ltd has already been considered and will be the subject of further comment below in these reasons.
The husband sought to add back to the list of assets amounts of $55,262.00 and $2,295.00 allegedly withdrawn by the wife from her account and a joint account at separation. The evidence in relation to transactions on the wife’s bank account around the separation remained unclear at the end of the trial.
The wife’s affidavit evidence was that she withdrew $55,000.00 from her National Australia Bank account after separation and gave $32,500.00 to her mother. She alleged that $18,000.00 constituted the return of money which her mother paid as rental in advance in November 2009. She alleged that a further sum of $14,500.00 constituted repayment of money provided to her by her mother between February 2007 and September 2009.
In oral evidence the wife said that she gave to her mother about $55,000.00 and she (the mother) then returned to her approximately $25,000.00. The wife said she used about $25,000.00 for legal fees and spent some of these funds on living expenses.
As noted, the husband’s counsel invited the omission of the paid legal fees of both parties in the list of assets. If that approach is adopted, an amount of $30,000.00 from the funds withdrawn by the wife from her National Australia Bank account remains for consideration. I accept that the wife properly returned her mother’s own funds of $18,000.00. I am thus of the view that a sum of $12,000 should be added back to the list of assets.
I was taken to no evidence that the wife withdrew any amount from a joint account on the parties’ separation. If she did withdraw the sum of $2,295.00, it seems to me she was entitled to the use of some joint funds to support herself and Y. There was a short interlude between the separation and the interim orders for spouse maintenance and payment by the husband of outgoings on the Suburb E property on 31 March 2010.
According to the wife’s Financial Statement sworn on 17 October 2011, she has Commonwealth Bank and Credit Union SA accounts with a total balance of $9.00. I will include these accounts in the balance sheet as assets with those values.
The only other assets of the parties are furniture and household contents, about which there has been a disproportionate amount of solicitors’ correspondence. There was no evidence as to the value of the furniture and contents, hence these items cannot be included in the balance sheet. Another complicating factor in respect of the furniture and contents is that there is dispute as to which party has possession of some of this property.

Superannuation Assets

The parties agreed that the husband has benefits with First State Super and Super SA to the values of $71,155.00 and $9,957.00 respectively. The wife disclosed in her Financial Statement that she has a REST Superannuation fund with a value of $8,415.00.

The Liabilities

The husband and wife agreed as to the following liabilities:
1. Mortgage on the title to the property A Street, Town G $885,000.00.
2. Mortgage on the title to the property C Street, Suburb E $113,865.00
There was a dispute to the inclusion of the husband’s debt of $11,298 to A Malik Pty Ltd and various credit card debts of the parties. I will not include the credit card debts in the balance sheet, in the absence of evidence as to the times when and purposes for which these liabilities were incurred. I will exclude the husband’s debt to his company because he has sole control of that entity and may never determine to call in this liability.

I thus find that the husband and wife have non-superannuation assets as now set out and with the following values:
1.     A Street, Town G   $885,000.00
2.     Husband’s interest in

C Street
, Suburb E   $635,350.00
3.     Toyota motor vehicle  $16,000.00
4.     A Malik Pty Ltd  $67,484.00
5.     ANZ Bank account (H)  $924.00
6.     ANZ Bank account (H)  $7,250.00
7.     Commonwealth Bank account (W)  $2.00
8.     Credit Union SA account (W)  $7.00
9.     Addback from wife’s NAB account (W)             $12,000.00
Total  $1,624,017.00
I find that the husband and wife have the following superannuation assets:
1.     First State Super fund (H)   $71,155.00
2.     Super SA fund (H)   $9,957.00
3.     REST Superannuation fund (w)  $8,415.00
Total  $89,527.00
I find that the parties have the following liabilities:
1.     Mortgage on A Street, Town G   $885,000.00
2.     Mortgage on C Street, Suburb E   $113,865.00
3.     Equitable charge on property at

C Street
, Suburb E

in favour of the second respondent                   $258,132.00
Total  $1,256,997.00

THE CONTRIBUTIONS OF THE PARTIES

The husband and the wife disagreed as to the length of their cohabitation. The wife contended that they commenced cohabitation in May 2004, whereas the husband maintained that they began to live together on 3 July 2005.
The wife contended that she spent time at the Suburb E home from Thursday night until Monday evening each week between about June 2004 and June 2005. The parties became engaged in June or September 2004, according to the wife and the husband respectively. The wife moved all of her belongings into the home shortly before the family departed for New Zealand in July 2005.
It is instructive to consider the contents of the wife’s affidavit sworn on 28 February 2005, which the husband used to support his case in the New Zealand proceedings (Exhibit 3). The husband was content at that time for her to swear that she lived with him, his mother, T, S and the second respondent for four to five days per week. In this affidavit the wife deposed that she began to stay overnight at the Suburb E property in May 2004.
I accept that the wife began to stay overnight in the home at Suburb E with the husband in May 2004. She contended, and I accept, that she soon began to carry out household tasks and to care for T and S. I accept that she attended to T and S’s educational, extracurricular, medical and health requirements as the husband’s time was devoted to his work and advanced qualifications. The husband effectively conceded that the wife played a major homemaking and parenting role during the relationship.
On behalf of the husband it was submitted that the wife received assistance in her homemaking and parenting role from the second respondent and other people. The tax returns of the second respondent (Exhibit 6) indicate that he earned an income ranging from $146,000.00 in 2004 to $126,000.00 in 2010. This level of income would suggest that he devoted substantial time to employment during the relationship of the husband and the wife. His evidence was that he had a contract for employment as a professional at the husband’s workplace. He lived in Western Australia between November 2009 and March 2010 and could not then have played a role in childcare or homemaking.
I am satisfied, and I find, that the wife made a substantial contribution as homemaker and parent for five and a half years between May 2004 and January 2010. It is significant that T and S are not her biological children, yet she willingly assumed responsibility for their care.
There was a substantial imbalance, in favour of the husband, in terms of his and the wife’s initial contributions. She brought into the relationship savings of approximately $31,285.00, superannuation with a value of about $7,000.00 and a small parcel of shares. She also owned furniture and household contents. The husband introduced into the relationship the Suburb E property, which had been purchased for $625,000.00 in March 2004 and was subject to a mortgage in the sum of $500,000.00. In his Outline of Case document the husband’s counsel wrote that his initial contribution consisted “primarily of his interest in the [Suburb E] property and accumulated superannuation”. The husband provided no evidence as to the value of his superannuation benefits at the commencement of cohabitation.
The husband and the second respondent reduced the mortgage on the Suburb E property by $340,000 in May 2008. In my view this contribution was very substantial in the context of a relatively short relationship. If not for this payment, the net equity in the property would now be approximately $200,000.00 rather than $540,000.00.
The husband earned a reasonable level of income during the parties’ cohabitation. Copies of returns annexed to his affidavit showed a taxable income which ranged from $99,556.00 to $150,910.00 between 2004 and 2008. There was no plausible suggestion that he used his earnings for any purpose other than the support of the family and the acquisition of assets.
The wife alleged that the husband failed to provide sufficient funds to enable her to meet the expenses of the family and that she had to resort to use of her own credit card. She conceded in her affidavit of 29 June 2011 that the husband reimbursed her for these credit card charges between 2004 and 2006 and then provided an allowance of $300.00 to $400.00 per week.
It was common ground that the wife contributed $10,000.00 to the purchase price of the Town G property. She alleged that she also paid $10,000.00 for the purchase of new furniture and to meet the cost of a housewarming party. In oral evidence the wife said that she expended approximately $25,000.00 from her savings during the relationship. This figure would include the $10,000.00 which she contributed to the purchase price of the Town G property. I accept her evidence that she applied about $15,000.00 from her pre-existing savings for the benefit of the family unit during the relationship.
I accept the wife’s contention that she provided substantial support to the husband in gaining his advanced qualifications and establishing a practice. I also accept her evidence that she assisted in the day to day operations of his practice as necessary, for example, in situations of illness of employees. Overall, I find that the wife did all that she could to support the husband in his career during the relationship.
There can be no doubt that the husband made substantial post separation contributions. He paid spouse maintenance of $200.00 per week and met the mortgage and outgoings in respect of the Suburb E property, which has been occupied by the wife. He has also paid the mortgage and outgoings in respect of the Town G property. He has paid child support for Y as assessed from time to time by the Agency. On the other hand, the wife has had the primary responsibility for the care of Y.
It is clear that the husband’s direct financial contributions far exceeded those of the wife. On the other hand, she carried out the homemaker/parent role with little assistance from the husband. This role included caring for and nurturing the husband’s children, T and S, who had experienced conflict and litigation between their parents. The wife supported the husband in his career path and thus made an indirect contribution to his present income-earning capacity.
In all of these circumstances, I find the contributions of the parties to the non-superannuation assets to be 80 per cent to the husband and 20 per cent to the wife. In the absence of any evidence as to the growth pattern of the husband’s superannuation, I make the same finding in relation to those benefits.

SECTION 75(2) FACTORS

The husband conceded that there should be an adjustment in favour of the wife pursuant to s 75(2) and suggested a figure of 10 per cent, presumably of the net non-superannuation assets. The wife sought an adjustment of 20 per cent in her favour.
The wife is a qualified allied health worker but her uncontradicted evidence was that she needs to undertake further study to resume her career. She maintained that the husband prevented her from working as an allied health worker during the relationship. The husband denied that he prevented her from engaging in employment but the fact is that she has been out of the paid workforce for almost seven years. I accept that this absence has impacted adversely on her ability to practice as an allied health worker.
Another impediment to the wife’s resumption of her career is that she suffers from carpal tunnel syndrome, which prevents her from engaging in the full range of treatments normally undertaken by such an allied health worker. She also requires a hip replacement in the near future.
Obviously the husband is in a far superior financial position than the wife, in terms of both available income and ability to re-establish a capital base. In the 2011 taxation year he drew a gross salary of $434,639.00. According to his Financial Statement sworn on 18 October 2011 he draws a gross weekly salary of $8,358.00 and pays tax of $3,386.00, leaving a net income of $4,972.00 per week. He is 49 years old and, subject to any health issues, can expect to earn a commensurate salary for a considerable period into the future.
The husband will have the opportunity to amass substantial superannuation benefits during the remainder of his professional career. The wife has a benefit of only about $8,400.00 and very limited opportunity to make further contributions.
The parenting orders which I propose to make will result in the wife having responsibility to care for Y for the majority of her time. Y is only six years old and this responsibility will thus be of many years duration.
I have referred above to the financial arrangements between the husband and the second respondent in the context of the practice. As noted, the husband chooses to remunerate the second respondent in part for providing personal support to him. Of course, I make no criticism of this arrangement. The reality is, however, that the husband effectively splits some of his income with the second respondent and they have a long-standing pattern of intermingling their finances.
It is obvious that there should be an adjustment in favour of the wife, as was properly conceded on behalf of the husband. I find that the wife should receive an additional 15 per cent of the net non-superannuation assets.
The husband sought that the wife take part of her entitlement by way of a superannuation splitting order in an amount of $35,000.00. I am of the view that she made an indirect contribution to the husband’s superannuation benefits, which I have assessed at 20 per cent. This finding would entitle the wife to an amount of $16,222.00 on account of the husband’s superannuation.
The wife is 47 years old and thus unable to access her superannuation benefits for many years. A splitting order would do nothing to alleviate her immediate need for liquid funds. It seems to me that justice and equity between the parties would better be served by an order that the husband make a cash payment of $16,222.00 to the wife.
Both the husband and the wife sought orders that he pay a lump sum to her and that she simultaneously transfer to him the whole of her right title to and interest in the Town G property. I have found that the wife should receive 35 per cent of the net non-superannuation assets, together with a sum of $16,222.00. The wife’s entitlement is thus to a sum of $144,679.00. She holds real or notional assets to the value of $12,009.00 and thus requires a payment of $132,670.00. I will order that the husband pay this sum to the wife within two calendar months of the date of these orders. I regard this result as just and equitable in all of the circumstances.
Until the wife receives these funds, she would have difficulty in securing alternative accommodation. I will thus order that she vacate the Suburb E property within three calendar months of the date of these orders.
The second respondent was a party to the dispute concerning household contents but made no proposal as to the distribution of these chattels. The husband sought a declaration that each party is solely entitled to all items of personal property presently in his and her respective possession. Accordingly, the only order sought in respect of specific household contents was that of the wife. She appeared to seek the return of property owned by her prior to the relationship; chattels belonging to her mother and items which she wishes to use to establish a new home for herself and Y. I will make orders substantially as sought by the wife in respect of chattels.

SPOUSE MAINTENANCE

I regard as unrealistic the wife’s application that the husband pay to her spouse maintenance of $800.00 per week for seven years. It is impossible to predict what her financial position may be at a time so long into the future.
I am satisfied that the wife is unable to support herself adequately for the purposes of s 72 of the Family Law Act. The husband’s proposal to continue payments of $200.00 per week is effectively a concession that the wife has a need and he has the capacity to pay spouse maintenance.
In her affidavit of 2 November 2011 the wife deposed that she intends to take on employment after she recovers from her hip replacement surgery. It thus seems to me that the husband’s proposal that he continue to pay spouse maintenance for 12 months will address the wife’s needs. Accordingly, I will make the order sought by the husband.

CHILD SUPPORT DEPARTURE APPLICATION

There was no evidence the wife has applied to the Child Support Agency for an administrative review of the husband’s assessment. Nothing in the evidence persuades me that she has established a ground for departure within the parameters of s 117(2) of the Child Support (Assessment) Act1989 (Cth), which provides:
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
This application accordingly must fail at the outset.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 March 2012.

Associate:

Date: 23 March 2012

[2012] FamCA 165

23 March 2012

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