Martin and Martin & Anor

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR

[2011] FamCA 706

FAMILY LAW – PARENTING – Where the parents’ communication is particularly bad and the children have been involved in the dispute – Where one child is experiencing difficulties due to the conflict and learning difficulties – where orders minimise contact and conflict between parents

FAMILY LAW – PROPERTY – Addbacks – Assessment of contributions made by the husband’s parents – Where the husband’s parents provided significant financial and accommodation assistance to the parties before separation and the husband post separation.

Family Law Act 1975 (Cth)

Biltoft & Biltoft (1995) FLC 92-614

U v U [2002] 211 CLR 238

APPLICANT:

Ms K Martin

RESPONDENT:

Mr C Martin

2^nd RESPONDENT:

Mr H Martin

FILE NUMBER:

SYC

6997

2008

DATE DELIVERED:

5 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

11 - 12 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Aitken Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

McDonell Milne Toltz Family Lawyers

Orders

Parenting

Subject to any other order the wife and husband have equal shared parental responsibility for the children C born … October 2000 and K born … August 2002 (“the children”).
Each party have the sole parental responsibility for the day to day care and welfare of the children whilst in their respective care.
The children live with the wife.
The children spend time with the husband as follows:
4.1.During school terms from after school Thursday to before school Monday in each alternate week, the first Thursday to be consistent with the Thursday to Sunday cycle under the current interim orders made 3 February 2009;
4.2.For one half of the Term 1, Term 2 and Term 3 school holidays (which shall be defined to include any nominated pupil free days or public holidays immediately prior to the conclusion or commencement of each term), being the first half of the school holidays in even numbered years commencing after school on the last day of the school term and ending at 6pm on the middle Saturday of the holiday period and for the second half of the school holidays in odd numbered years commencing at 6pm on the middle Saturday of the holiday period and ending at the commencement of the first day of the school term;
4.3.During term 4 school holidays (Christmas holidays) as follows:
4.3.1.with the Husband in the odd years for the duration of 10 days to commence after school on the last day of term 4 and ending at 6.00pm on the tenth day thereafter;
4.3.2.with the Wife for the duration of 10 days commencing on the tenth day at 6.00pm and ending at 6.00pm on the twentieth day;
4.3.3.with the Husband for the duration of 10 days commencing on the twentieth day at 6.00pm and ending at 6.00pm on the thirtieth day;
4.3.4.with the Wife from 6.00pm on the thirtieth day until the commencement of school on the first day of the new school year.
4.4.During term 4 school holidays (Christmas holidays) as follows:
4.4.1.with the Wife in the even years for the duration of 10 days to commence after school on the last day of term 4 and ending at 6.00pm on the tenth day thereafter;
4.4.2.with the Husband for the duration of 10 days commencing on the tenth day at 6.00pm and ending at 6.00pm on the twentieth day;
4.4.3.with the Wife for a duration of 10 days commencing on the twentieth day at 6.00pm and ending at 6.00pm on the thirtieth day;
4.4.4.with the Husband from 6.00pm on the thirtieth day for the remainder of term 4 school holidays and to conclude at 6.00pm three days before commencement of school term 1.
4.5.Whenever Easter falls during term 1 school holidays:
4.5.1.each alternate year with the Husband to commence in 2013 for a duration of 7 days to include Good Friday, Saturday, Easter Sunday and Easter Monday; and
4.5.2.each alternate year to commence with the Wife in 2012 for a duration of 7 days to include Good Friday, Saturday, Easter Sunday and Easter Monday.
4.6.Whenever Easter falls during term 1 of school:
4.6.1.each alternate year with the Husband in odd years to commence from after school on Thursday and to conclude at commencement of school on Tuesday; and
4.6.2.each alternate year with the Wife in even years to commence from after school on Thursday and to conclude at commencement of school on Tuesday.
4.7.At such other times as may be agreed between the parties in writing.
The children spend time with the wife and husband on occasions of special significance as follows:
5.1.In the event that the children are not otherwise living with the Husband on Father's Day pursuant to these Orders, then the children will spend time with the Husband on the weekend which includes Father's Day from 3pm Saturday until 5pm Sunday.
5.2.In the event that the children are not otherwise living with the Wife on Mother's Day pursuant to these Orders, then the children shall live with the Wife on the weekend which includes Mother's Day from 3pm on Saturday until 5pm on Sunday.
5.3.With the Husband on the Husband's birthday as agreed or in default of agreement from after school or 3.45pm (if not a school day) until before school or 8.45am (if not a school day) the next day.
5.4.With the Wife on the Wife's birthday from after school or 3.45pm (if not a school day) until before school or 8.45am (if not a school day) the next day.
5.5.On the children's birthdays as agreed or in default of agreement with the parent with whom the child is not living on their birthday, from after school to 7pm if a school day or from 9am to 3pm if not a school day.
For the purposes of these Orders, and subject to order 9, on occasions when a changeover does not occur at school, the parent with whom the children are spending time shall return the children to the residence of the other parent at the conclusion of their time with the children.
The non-resident parent be at liberty to communicate with the children by telephone each Thursday and Sunday at 6.00pm, for a duration of not longer than 20 minutes, with the non-resident parent to initiate the call and the resident parent to ensure that the children are available to receive the call. In the event the children wish to speak to the non-resident parent additionally outside of these times, the resident parent shall allow and encourage it.
In the event that either parent is spending time with the children outside NSW during the school holiday period, then that parent shall be at liberty to cause the children to travel by plane as unaccompanied minors provided that he/she:-
8.1.notifies the other parent of their intention to do so not less than 21 days prior to such travel taking place;
8.2.provides the other parent with a copy of the children’s flight itinerary including date and time of flight and notice that the children will be travelling as unaccompanied minors;
8.3.ensures that the children arrive at Sydney Airport by the time required for changeover pursuant to these Orders.
In the event that the children are travelling outside New South Wales or returning from outside New South Wales during school holidays with a parent, then that parent with whom the children are travelling shall deliver the children in accordance with order 6 and the travelling parent will ensure the children are delivered to the other party’s residence by the time required for changeover pursuant to these Orders, save for uncontrollable disturbances such as flight delays.
In the event that either party is unable to care for the children during any period provided by these Orders by reason of travel for work or otherwise for any period exceeding 48 hours:-
10.1.The travelling party shall give not less than 14 days notice of the period during which he or she is unable to care for the children and shall give the other party first option to care for the children during such period;
10.2.The other party is to advise the travelling party within 48 hours of receipt of the notice pursuant to 10.1 whether or not he or she will take up the option to care for the children during the travelling party's absence; and
10.3.In the event that the other party declines the option to care for the children during the absence of the travelling parent, then the travelling parent shall make such other arrangements for the children to be cared for by such other persons as may be appropriate and shall notify the other party of such arrangements not less than 48 hours prior to his or her departure.
In the event that either party wishes to travel overseas with the children during school holiday periods, the other party shall not unreasonably withhold consent to such travel and shall do all acts and things necessary to facilitate such travel including the delivery up of the children's passports on the following terms and conditions:
11.1.The travelling party provide to the other party not less than two months notice of the proposed travel and within 14 days from such notice the other party shall provide any objection to such travel and the reasons therefore, and in the absence of any such objection, consent shall be deemed to have been given;
11.2.The travelling party provide to the other party not less than one month prior to departure a full itinerary including details of flights and the address and telephone numbers of all accommodation in which the children shall be staying;
11.3.The travelling party shall take out comprehensive travel insurance for any period of absence and shall provide to the other party a copy of the policy not less than 7 days before departure; and
11.4.The parties shall do all things necessary to ensure that the children's passports remain current and any required renewal shall be done where possible prior to the expiration of any current passport and the parties shall pay equally the cost of any renewal;
11.5.The wife should ordinarily hold the children’s passports but make them available within and for reasonable times, upon request by the husband, to enable him to travel overseas with the children pursuant to this order.
Each party shall be at liberty to attend all school functions and events at which the attendance of parents is permitted or required. Each party may only attend all sporting fixtures or extra-curricular activities where parental attendance is permitted, at times when the children are ordinarily with that parent, unless otherwise agreed by the other parent.
Each of the parties are hereby restrained from denigrating the other party, the other party’s spouse and/or partner or immediate family in the presence or hearing of the children, or allow or submit to any other person doing so.
The parties each do all acts and things necessary to have C assessed by Ms T in relation to issues of Dyslexia, ADHD, Asperger’s Syndrome or the like in the first instance, and thereafter to have him assessed at Clinic 1, also in relation to issues of Dyslexia, ADHD, Asperger’s Syndrome or the like, and the parties shall bear the cost of each assessment equally.
Each party shall notify the other of any treatment or medication prescribed for the children or instructions for treatment provided by any healthcare professional consulted by the children via email and each party shall keep the other informed as to treatment undertaken whilst the children are in the care of that party.
Each party shall further provide to the other all necessary medical prescriptions or medical/dental appliances required by the children during periods of time with the other.
In the event either child becomes sick whilst at school and the school phones for a parent to collect the child, if the call is made before midday, then the party who delivered the child to school in the morning shall collect the child, unless otherwise agreed. Otherwise, if the call is made after midday, the party who has the care of the child that night shall collect the child, unless otherwise agreed.
Each party shall consult with and obtain the consent of the other party to any medical procedure, treatment regime or operation proposed to be performed on the children, unless in the case of an emergency requiring immediate treatment (within 3 hours). In the event of an emergency, the party in whose care the children are at that time shall immediately notify the other party.
Each party shall provide the other with all appropriate school and sports uniforms, clothing and footwear so that the children are at all times properly attired for school and shall return to the other all items of casual and school clothing provided for the children for periods that the children spend time with either party.
Each party authorise the children's schools to provide copies of all school reports, newsletters, notices and other school communications to each of them.
Each party shall ensure that each child attends school each school day except in the case of illness and shall not permit the children to be taken out of school for the day or be collected early without the consent of the other party.
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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

An order be made pursuant to s 79 Family Law Act (Cth) in accordance with paragraphs 24 – 30 below
The parties (including the husband’s father) do all things and sign all necessary documents to transfer to the wife the balance of the proceeds of the sale of the former matrimonial home (and any accrued interest) to the wife.
The wife be declared to have sole right, title and interest in all assets in her sole name or possession, including her interests in superannuation funds.
The wife indemnify the husband in relation to any liability arising from monies borrowed by the wife from her parents.
Subject to these orders, the husband be declared to have sole interest in assets in his possession or in his name, including interests in his superannuation fund.
The husband indemnify the wife in relation to any monies outstanding by way of loan to the husband’s parents.
Subject to the next order and pursuant to s 90MT(1)(a) Family Law Act (Cth), whenever a splittable payment becomes payable in respect of the husband’s interest in Superannuation Fund 1, the wife shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount, at the date of these orders, in the sum of $16,443 and that there be a corresponding reduction to the entitlement the husband would have had in Superannuation Fund 1 but for this order.
The operative date for the preceding order will be 21 days after service of these orders upon the trustee of the husband’s Superannuation Fund 1 and in the event that the trustee raises an objection to the preceding order, then the husband within 28 days of that objection being raised, shall pay to the wife in default an amount of $16,443 and the Husband shall retain the whole of his interest in Superannuation Fund 1.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act (Cth) to execute such documents on behalf of such party.

It is noted that publication of this judgment under the pseudonym Martin & Martin and Anor is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6997 of 2008

Ms K Martin

Applicant

And

Mr C Martin

Respondent

And

Mr H Martin

2nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The husband and wife were married for nearly nine years and there are two children of the relationship, C aged 10 and K aged 8.
The parties both seek final orders to be made in relation to parenting, property and child support.
The communication between the husband and wife is at a very low level. The level of dispute between the parties has impacted upon the children.
In relation to financial matters, the main issue is the use of certain sale proceeds by the parties and the likelihood of debts being enforced by their respective parents.

APPLICATIONS

The wife seeks the following:
DEPARTURE ORDER CHILD SUPPORT
1.Pursuant to section 117(1) of the Child Support (Assessment) Act 1989 there be an order departing from the administrative assessment of child support payable by the father to the mother for the children [C] born [in] October 2000 and [K] born [in] August 2002 so that child support is fixed at a weekly amount of $100.00 for each child for the period from date of order until 1 January 2020.
2.In lieu of the periodic amounts of child support ordered to be paid pursuant to order (1) hereof, the father pay the mother a lump sum of child support pursuant to the provisions of sections 123 and/or 124 of the Child Support (Assessment) Act 1989 in the amount of $100,000.
3.Pursuant to section 123A of the Child Support (Assessment) Act 1989, the annual rate of child support payable by the father under any relevant administrative assessment for that said period is to be reduced by ONE HUNDRED PER CENT (100%). The payment referred to in Order (1) be paid by the father to the mother within 7 days from the date of these orders from the moneys currently standing in the interest bearing term deposit with [Credit Union 1] in the name of [Mr H Martin] from the proceeds of sale of [… K Street, Sydney Suburb 1].
4.Pending compliance by the father with Order (1), the father be restrained from transferring, encumbering, assigning, mortgaging or otherwise adversely dealing with or disposing of his right, entitlement and interest in the proceeds of sale.
PROPERTY
5.That the nett asset pool be split 70% to the Wife and 30% to the Husband.
6.That otherwise each party shall be solely entitled to the exclusion of the other to all other chattels of whatsoever nature or kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank record thereof, insurance policies (if any) are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the condition of payment of such entitlements and the interest in any motor vehicle is deemed to be in the possession of the party whose name such motor vehicle is registered in.
7.That save and except that these Orders provide to the contrary, each party mutually releases the other from all debts in each party’s name, and all claims owing from one to the other.
8.That pursuant to Section 81 of the Act these Orders are intended to operate to end all financial relationship including spousal maintenance between the parties and are an attempt to avoid further proceedings between them.
9.That in the event that either party refuses or neglects to execute a Deed and/or Instrument in compliance with the provision of these orders, the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to Section 106A of the Family Law Act, 1975 to execute all Deeds and/or Instruments in the name of the defaulting party and do all acts or things necessary to give validity and operation to the Deed and/or Instruments.
CHILDREN
10.That the Mother and Father have equal shared parental responsibility for the children:
10.1.[C] born [in] October 2000 (aged 10 years); and
10.2.[K] born [in] August 2002 (aged 8 years)
10.3.(“the children”).
11.That the children live with the Mother.
12.That each party have the sole parental responsibility for the day to day care and welfare of the children whilst in their respective care.
13.That the children spend time with the Father as follows:
13.1.During school terms from after school Thursday to before school Monday in each alternate week;
13.2.For one half of the term 1, term 2 and term 3 school holidays being the first half of the school holidays in even numbered years commencing after school on the last day of school term and ending at 6.00pm on the eighth day of the holiday period and for the second half of the school holidays in odd numbered years commencing at 6.00pm on the eighth day of the holiday period and ending at the commencement of the first day of the new school term;
13.3.During term 4 school holidays (Christmas holidays) as follows:
13.3.1.with the Father in the odd years for the duration of 10 days to commence after school on the last day of term 4 and ending at 6.00pm on the tenth day thereafter;
13.3.2.with the Mother for the duration of 10 days commencing on the tenth day at 6.00pm and ending at 6.00pm on the twentieth day;
13.3.3.with the Father for the duration of 10 days commencing on the twentieth day at 6.00pm and ending at 6.00pm on the thirtieth day;
13.3.4.with the Mother from 6.00pm on the thirtieth day until the commencement of school on the first day of the new school year.
13.4.During term 4 school holidays (Christmas holidays) as follows:
13.4.1.with the Mother in the even years for the duration of 10 days to commence after school on the last day of term 4 and ending at 6.00pm on the tenth day thereafter;
13.4.2.with the Father for the duration of 10 days commencing on the tenth day at 6.00pm and ending at 6.00pm on the twentieth day;
13.4.3.with the Mother for a duration of 10 days commencing on the twentieth day at 6.00pm and ending at 6.00pm on the thirtieth day;
13.4.4.with the Father from 6.00pm on the thirtieth day for the remainder of term 4 school holidays and to conclude at 6.00pm three days before commencement of school term 1.
13.5.Whenever Easter falls during term 1 school holidays:
13.5.1.each alternate year with the Father to commence in 2013 for a duration of 7 days to include Good Friday, Saturday, Easter Sunday and Easter Monday; and
13.5.2.each alternate year to commence with the Mother in 2012 for a duration of 7 days to include Good Friday, Saturday, Easter Sunday and Easter Monday.
13.6.Whenever Easter falls during term 1 of school:
13.6.1.each alternate year with the Father in odd years to commence from after school on Thursday and to conclude at commencement of school on Tuesday; and
13.6.2.each alternate year with the Mother in even years to commence from after school on Thursday and to conclude at commencement of school on Tuesday.
13.6.3.Each Father’s Day weekend from 3.00pm Saturday to 5.00 pm Sunday provided always that the Father’s time with the children shall be suspended on the Mother’s Day weekend from 3.00pm Saturday to 5.00pm Sunday.
14.That for the purposes of these Orders, on occasions when the children are not at school, the parent with whom the children are living shall return the children to the residence of the other parent at the conclusion of their time with the children.
15.That in the event that either parent is spending time with the children outside NSW, requiring the children to travel by airplane for the purposes of spending time with the either parent, then the parent with whom the children are spending time with shall be at liberty to cause the children to travel by plane as unaccompanied minors provided that the parent responsible for organising such travel:-
15.1.notifies the other parent of their intention to do so not less than 21 days prior to such travel taking place;
15.2.provides the other parent with a copy of the children’s flight itinerary including date and time of flight; and
15.3.ensures that the children arrive at Sydney Airport.
16.That within 48 hours of receiving the notice provided for in the preceding Order, the parent who is due to collect the children from Sydney Airport must provide all relevant documents and information to the other parent and/or the airline, as may be required, to confirm the name and identity of the person/s responsible for collecting the children, so as to allow the flights to be booked and confirmed.
17.That the Father be at liberty to communicate with the children by telephone each Thursday and Sunday at 6.00pm, for a duration of not longer than 10 minutes, with the Father to initiate the call and the Mother to ensure that the children are available to receive the call. In the event that the Father is unable to speak with the children in accordance with this Order, the Father shall leave a message for the Mother advising her of his attempt to speak with the children and the Mother is to ensure that the children return the Father’s call within 24 hours.
18.That the Mother be at liberty to communicate with the children by telephone each Saturday at 6.00pm, for a duration of not longer than 10 minutes, with the Mother to initiate the call and the Father to ensure that the children are available to receive the call. In the event that the Mother is unable to speak with the children in accordance with this Order, the Mother shall leave a message for the Father advising him of her attempt to speak with the children and the Father is to ensure that the children return the Mother’s call within 24 hours.
19.That in the event that either parent is required to travel for work interstate or overseas, or is otherwise unavailable to care for the children during any period the children are scheduled to be in their care pursuant to these Orders:-
19.1.In relation to the Mother, the Mother is at liberty to have the children cared by the following:
19.1.1.Her parents – [Ms S] and [Mr S];
19.1.2.Mother’s friend – [Ms V] and/or [Ms R];
19.1.3.Mother’s aunt – [Ms L].
19.2.In relation to the Father, the Father is at liberty to have the children cared by the following:
19.2.1.His parents – [Mr H Martin] and [Ms J Martin].
20.That each of the parties are hereby restrained from denigrating the other party, the other parties spouse and/or partner or immediate family in the presence or hearing of the children, or allow or submit to any other person doing so.
21.That the Mother and Father be permitted to travel outside of the Commonwealth of Australia with the children conditional upon giving two months written notice to the other parent of the intention to leave Australia and provide an itinerary including the destination, period and contact details with a copy of the travel insurance policy document(s).
22.That the children’s passports be kept by the Mother unless otherwise agreed. That the Father shall return to the Mother within 48 hours the children’s passport.
23.That [C] be assessed by [Ms T] in relation to ADHD, Aspergers Syndrome and Dyslexia in the first instance and thereafter he is to be assessed at [Clinic 1], also in relation to ADHD, Aspergers Syndrome and Dyslexia and the parties shall bear the cost of each assessment equally.
NOTATIONS:
A.School holidays means term 1, term 2, term 3 and term 4 which includes any nominated pupil free days or public holidays immediately prior to the conclusion of a school term or immediately prior to the commencement of a school term as per the NSW Government gazetted school holiday calendar.
B.The time the children spend with the Father pursuant to Order 14.1 above is to resume on the first Thursday of school term in even numbered years and on the second Thursday of school term in odd numbered years.

In terms of the parenting orders, the husband agrees to order 11, 12, 13 and 21 of the wife’s orders and I will make those orders by consent.
The husband agrees in substance to other proposed orders of the wife but in a different form. The wife’s proposed order number and the husband’s proposed wording are as follows:
7.1.[14.2] For one half of the Term 1, Term 2 and Term 3 school holidays (which shall be defined to include any nominated pupil free days or public holidays immediately prior to the conclusion or commencement of each term), being the first half of the school holidays in even numbered years commencing after school on the last day of the school term and ending at 6pm on the middle Saturday of the holiday period and for the second half of the school holidays in odd numbered years commencing at 6pm on the middle Saturday of the holiday period and ending at the commencement of the first day of the school term.
7.2.[15] That for the purposes of these Orders and subject to order 16, on occasions when changeover does not occur at school, the parent with whom the children are living shall return the children to the residence of the other parent at the conclusion of their time with the children.
7.3.[16 and 17] That in the event that either parent is spending time with the children outside NSW during the Christmas school holiday period and requires the children to travel by airplane for the purposes of spending time with the other parent, then that parent shall be at liberty to cause the children to travel by plane as unaccompanied minors provided that he/she:-
7.3.1.notifies the other parent of their intention to do so not less than 21 days prior to such travel taking place;
7.3.2.provides the other parent with a copy of the children’s flight itinerary including date and time of flight; and
7.3.3.ensures that the children arrive at Sydney Airport by the time required for changeover pursuant to these Orders.
7.4.[20] That in the event that either party is unable to care for the children during any period provided by these Orders by reason of travel for work or otherwise for any period exceeding 48 hours:-
7.4.1.The travelling party shall give not less than 14 days notice of the period during which he or she is unable to care for the children and shall give the other party first option to care for the children during such period;
7.4.2.The other party is to advise the travelling party within 48 hours of receipt of the notice pursuant to subparagraph (a) whether or not he or she will take up the option to care for the children during the travelling party's absence;
7.4.3.In the event that the other party declines the option to care for the children during the absence of the travelling parent, then the travelling parent shall make such other arrangements for the children to be cared for by such other persons as may be appropriate and shall notify the other party of such arrangements not less than 48 hours prior to his or her departure.
7.5.[22] That in the event that either party wishes to travel overseas with the children, the other party shall not unreasonably withhold consent to such travel and shall do all acts and things necessary to facilitate such travel including the delivery up of the children's passports on the following terms and conditions:‑
7.5.1.The travelling party provide to the other party not less than two months notice of the proposed travel and within 14 days from such notice the other party shall provide any objection to such travel and the reasons therefore, and in the absence of any such objection, consent shall be deemed to have been given;
7.5.2.The travelling party provide to the other party not less than one month prior to departure a full itinerary including details of flights and the address and telephone numbers of all accommodation in which the children shall be staying;
7.5.3.The travelling party shall take out comprehensive travel insurance for any period of absence and shall provide to the other party a copy of the policy not less than 7 days before departure;
7.5.4.The parties shall do all things necessary to ensure that the children's passports remain current and any required renewal shall be done where possible prior to the expiration of any current passport and the parties shall pay equally the cost of any renewal.
7.6.[23] That the father retain possession of [C’s] passport and the mother retain possession of [K’s] passport, provided however that if either party given notice of proposed overseas travel pursuant to order 22, the other party shall deliver up to the travelling party the passport of the child in his or her possession not later than one month prior to the proposed date of departure.
7.7.[24] That the parties each do all acts and things necessary to have [C] assessed by [Ms T] in relation to issues of ADD, ADHD, Aspergers Syndrome, Dyslexia or the like in the first instance and thereafter to have him assessed at [Clinic 1] also in relation to ADD, ADHD, Aspergers Syndrome, Dyslexia or the like and the parties shall bear the cost of each assessment equally.
The other parenting orders the husband seeks are in accordance with his Response filed 28 February 2011, and orders sought in Exhibit C and are as follows:
3.That the children spend time with the father as follows:
3.1In alternate weeks during the school term, from after school on Friday to before school the following Friday and commencing on the first Friday immediately following the commencement of the school term.
3.3For one half of the Christmas school holiday period (which shall be defined to include any nominated pupil free days or public holidays immediately prior to the conclusion of Term 4 or immediately prior to the commencement of Term 1 AND FURTHER to exclude the week from 22 to 28 December) being:‑
3.3.1The first half of the school holiday period in even numbered years commencing after school on the last day of the school term and ending at 6pm on the middle day of the holiday period; and
3.3.2The second half of the school holiday period in odd numbered years commencing at 6pm on the middle day of the holiday period and ending at 6pm on the day prior to the commencement of Term 1.
3.4At such other times as may be agreed between the parties in writing.
4.That the children spend time with the Mother and Father on occasions of special significance as follows:-
4.1Over the Christmas festive season from 22 to 28 December in even numbered years, with the Father from 9am on 22 December until 3pm on Christmas Day and with the Mother from 3pm on Christmas Day until 28 December.
4.2Over the Christmas festive season from 22 to 28 December in odd numbered years, with the Mother from 22 December until 3pm on Christmas Day and with the Father from 3pm on Christmas Day until 6pm on 28 December.
4.3In the event that the children are not otherwise living with the Father on Father's Day pursuant to these Orders, then the children will spend time with the Father on the weekend which includes Father's Day from 3pm Saturday until 5pm Sunday.
4.4In the event that the children are not otherwise living with the Mother on Mother's Day pursuant to these Orders, then the children shall live with the Mother on the weekend which includes Mother's Day from 3pm on Saturday until 5pm on Sunday.
4.5With the Father on the Father's birthday as agreed or in default of agreement from after school or 3.45pm (if not a school day) until before school or 8.45am (if not a school day) the next day.
4.6With the Mother on the Mother's birthday from after school or 3.45pm (if not a school day) until before school or 8.45am (if not a school day) the next day.
4.7On the children's birthdays as agreed or in default of agreement with the non-resident parent from after school to 7pm if a school day or from 9am to 3pm if not a school day.
7.That when the children are spending time with the Father pursuant to these Orders, the Father shall facilitate telephone communication between the children and the Mother at all reasonable times.
8.That when the children are spending time with the Mother pursuant to these Orders, the Mother shall facilitate telephone communication between the children and the Father at all reasonable times.
The following uses the numbering in Exhibit C:
12.Each party shall notify the other of any treatment or medication prescribed for the children or instructions for treatment provided by any healthcare professional consulted by the children via email and each party shall keep the other informed as to treatment undertaken whilst the children are in the care of that party.
13.Each party shall further provide to the other all necessary medical prescriptions or medical/dental appliances required by the children during periods of time with the other.
14.If either child becomes sick whilst at school and the school phones for a parent to collect the child, if the call is made before midday, then the party who delivered the child to school in the morning shall collect the child, unless otherwise agreed. Otherwise, if the call is made after midday, the party who has the care of the child that night shall collect the child, unless otherwise agreed.
15.That each party shall consult with and obtain the consent of the other party to any medical procedure, treatment regime or operation proposed to be performed on the children, unless in the case of an emergency requiring immediate treatment (within 3 hours). In the event of an emergency, the party in whose care the children are at that time shall immediately notify the other party.
16.That each party shall provide the other with all appropriate school and sports uniforms, clothing and footwear so that the children are at all times properly attired for school and shall return to the other all items of casual and school clothing provided for the children for periods that the children spend time with either party.
17.That each party authorise the children's schools to provide copies of all school reports, newsletters, notices and other school communications to each of them.
18.That each party shall be at liberty to attend all school functions and events at which the attendance of parents is permitted or required, and all sporting fixtures or extra-curricular activities involving the children where parental attendance is permitted.
19.That each party shall ensure that each child attends school each school day except in the case of illness and shall not permit the children to be taken out of school for the day or collected early without the consent of the other party.
20.That the parties maintain a communication book in which each of them shall provide information relevant to any aspect of the care and welfare of the children and shall provide such communication book to the other party at changeovers pursuant to these Orders.
Counsel for the husband mentioned during submissions that in the event I was against him on week about arrangements, then he would need at least 5 or 6 days with the children each fortnight to maintain a meaningful relationship with the children. He relied upon the well known statements in U v U [2002] 211 CLR 238. I raised the issue of procedural fairness given that the husband had not raised any alternate proposal during the course of the evidence. Counsel for the husband argued that:
10.1.The husband had put this proposal in his 2010 parenting questionnaire, giving the wife notice of his intention of an alternate proposal;
10.2.Based on her evidence, the wife would obviously reject the alternate proposal of the husband; and
10.3.That this proposal was the difference of 1 or 2 nights and was not ‘out of left field’ like previous cases which ruled against the judicial officer or parties putting forward an alternative proposal without the chance for the other party to be heard. I accept I can consider options within the range proposed by the husband.
The property orders the husband seeks are that the net assets of the parties be divided as to 55% to the husband and 45% to the wife and that the distribution of property be as follows:
11.1.The wife be entitled to retain the ownership of the following items of property presently in her name, possession or control being:
11.1.1.VW Golf motor vehicle;
11.1.2.Furniture;
11.1.3.Shares in Company 1;
11.1.4.Savings in bank accounts with Bank of Queensland
11.1.5.Savings in accounts with Credit Union 2;
11.1.6.Proceedings of sale of the Town 1 land;
11.1.7.Entitlements to superannuation benefits in Superannuation Fund 2 and Superannuation Fund 3.
11.2.The husband be entitled to retain the ownership of the following items of property presently in his name, possession or control being:
11.2.1.Proceeds of sale of the former matrimonial home at K Street, Sydney Suburb 1;
11.2.2.Saab motor vehicle;
11.2.3.Savings in bank accounts;
11.2.4.Entitlements to Superannuation Fund 1.
11.3.The Husband shall be solely responsible for and indemnify the Wife against any debt or liability in his name.
11.4.The Wife pay to the Husband within 28 days of these orders the sum of Fifty six thousand six hundred and seventeen dollars ($56,617)
The sale proceeds from the matrimonial home are under the control of the husband’s father in an interest bearing account. It therefore became necessary to join the husband’s father to the proceedings so that an order can be made for his release of the proceeds. The husband’s father was joined as a party to the proceedings at the conclusion of the hearing for this purpose.

DOCUMENTS RELIED UPON

Applicant Wife

Applicant Wife’s case summary;
Additional Further Amended Application for Final Orders filed 19 October 2010;
Affidavit 01 April 2011;
Affidavit 20 October 2010;
Affidavit 23 July 2010;
Affidavit 27 January 2009;
Financial Statement 05 May 2011;
Financial Questionnaire 30 August 2010; and
Parenting Questionnaire 02 September 2010.

Respondent Husband

Respondent Husband’s case summary;
Response to Additional Further Amended Application for Final Orders 18 February 2011;
Husband’s Affidavit 04 April 2011;
Husband’s Affidavit 02 November 2010;
Financial Statement 29 April 2010;
Financial Questionnaire 02 September 2010;
Parenting Questionnaire 02 September 2010;
Affidavit of Mr H Martin 02 November 2010; and
Affidavit of Ms J Martin 02 November 2010.

Other documents

Family Consultant Report 16 March 2011; and
Family Consultant Report 23 October 2010.

SHORT HISTORY

The husband was born in 1965 and is now 45 years of age.
The wife was born in 1970 and is now 41 years of age.
The parties commenced cohabitation in September 1997 and married in June 1999.
In October 2000 C was born. He is now 10 years old.
In August 2002 K was born. She is now 9 years old.
On 2 March 2008 the parties separated.

CREDIT

Wife

The husband sought to cast doubt over the wife’s credibility by identifying the areas in the wife’s financial statement where she failed to give adequate details despite her responsibility to make full and frank disclosure. At question 12 the wife listed her government benefits as $37 per week for Newstart Allowance. She failed to mention that she also received $126 per fortnight for rent assistance and additional assistance from ‘Australian Government Families’. The wife said she did not omit these details on purpose, but overlooked them. She offered as an explanation a comment that she had not seen a statement for a long time and does not check her bank account weekly. Whilst that explanation is poor, and the preparation of the document sloppy, I do not find that the wife deliberately set out to mislead the court about the receipt of this government assistance.
The wife also seemed to give inconsistent evidence when she said she did not deliberately keep the children home from school on an occasion when she otherwise gave evidence that the husband had threatened to take the children.
However, overall I found the wife to be a credible witness.

Husband

The husband at times appeared to make concessions which were not in his favour. He admitted to recording the children saying what division of time they would like between the parents. He admitted removing C’s glasses from his possession. However, as I note below, his reasons behind these two actions as explained in the proceedings, did not match his answers in previous proceedings or the interview with the family consultant.
The husband gave some very unlikely pieces of evidence:
43.1.On one occasion the wife was forced to cancel a dentist appointment. The husband said that he refused to take the children to a dentist appointment because he did not know how much the treatment would cost or what it was for. I find that his real motivation was simply that he felt that the wife was interfering with his time with the children.
43.2.Another example of the husband not being frank, centred around the husband video taping the children. Although in his oral evidence he was prepared to concede that he had done so, he was not so candid with the family consultant.
I did have some reservations about relying upon everything the husband said. In any contest between the evidence of the husband and wife, I prefer the evidence of the wife unless indicated otherwise.

Husband’s father

The husband’s father appeared to give evidence in a forthright manner. I do not however, fully accept his evidence about the appropriateness of the distribution of the proceeds of the sale of the matrimonial home. This is discussed further below.

CHRONOLOGY

The husband was born in 1965 and is now 45 years of age.
The wife was born in 1970 and is now 41 years of age.
The parties disagree about when the cohabitation began. The wife said it was on 26 September 1997. The husband thought it was later. I accept the wife’s version.
Both parties worked full time when they met.
The parties became engaged in September 1998 and lived together at the matrimonial home in Sydney Suburb 1, owned by the husband’s parents.
The parties married in June 1999.
In October 2000, the parties’ first child C was born. The wife took maternity leave from mid September 2000 until October 2001.
In August 2002 the parties’ second child K was born. The wife took maternity leave from July 2002 until approximately January 2003. She resumed work for four months before ceasing her employment to care for the children full time.
On 12 March 2003 the husband says he obtained a valuation for the Sydney Suburb 1 property in the amount of $525,000. On 1 August 2003 the parties bought a block of land in Town 1 for $67,000. The husband contributed $37,000 which he says was a gift from his parents and carried a condition that this amount be preserved to then be applied to the children’s education. The wife maintains the monies were an inheritance owed from the husband’s grandmother to the husband. The balance of the purchase price was contributed from savings. This property was sold in August/September 2003 for $108,000.
On 18 September 2003 the husband’s parents transferred the Sydney Suburb 1 property into the husband’s name at a value of $465,000. It seemed to be accepted by the parties that this was $60,000 under value ($525,000 - $465,000). The husband’s parents received no payment but entered into a mortgage, for the sum of $465,000., signed by the husband on 30 September 2003. The parents paid the $19,115 stamp duty on the husband’s behalf.
On 23 September 2003 the parties applied for a first home owner’s grant of $10,000 for the Sydney Suburb 1 property.
On 29 June 2005 the parties bought the Town 2 block of land for $72,000. The husband said a loan of $6,000 was obtained from the husband’s father, while the wife said the loan was $9,000. The husband said the loan was repaid in August 2005. The wife was unsure of the date of repayment. There was some confusion in the husband’s mind when he was referred to Exhibit K in his oral examination.

In April 2007 the husband resigned from his job to start his own company which he did in May 2007.
From April 2007 to June/July 2007 the wife and children moved to Town 1 to house-sit the wife’s parent’s house. The wife says the husband only lived there for one month and later another week.
The wife commenced part time employment in a retail business in August 2007.
On 13 February 2008 the Town 2 property was sold for $141,500. The wife retained the proceeds.
On 2 March 2008 the parties separated and the husband left the matrimonial home. He moved back into the home on 7 May 2008, and thereafter the wife left the home with the children.
The husband’s parents issued a notice of mortgage default to the husband on 5 May 2008. The parties had not been paying the mortgage since 2004. The weekly payments formally due under the mortgage were $290 per week.
Two mediations were attempted in September 2008.
On 1 October 2008, the husband transferred the matrimonial property back to his parents. Interest and Stamp duty were included in the payments that came out of the gross amount. The husband received the sum of $40,000. The balance of the net proceeds of $116,817 were placed in an account in the husband’s father’s name until the outcome of the hearing. The husband continued to reside in the property, signing a rental agreement to pay $590 a week. This transaction is discussed below.
On 7 October 2008 the parties’ Holden Commodore was transferred to the wife by agreement. It was sold by the wife for $2,000 in June 2009.
The wife’s inheritance from her late uncle was determined in the Supreme Court of Queensland on 19 December 2008 to be $64,760 which she received on 16 February 2009.
Interim Consent Parenting Orders were signed by the parties on 3 February 2009. They provided that the parties have equal shared parental responsibility. The children were to spend four nights a fortnight with the husband during school term, half school holidays and other times.
The parties were divorced in July 2009.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII Family Law Act 1975 (“Cth”) (“FLA”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

PARENTING – MAJOR ISSUES

Involvement of Children in the Dispute

The husband has involved the children in the proceedings to a degree. The children told the family consultant, that the husband has video taped C expressing a desire to spend more time with his father. C was reportedly crying when he described this event to the consultant. K also said she was taped but said she didn’t say what her father asked her to say.
In his oral evidence the husband did not deny recording the children. He did acknowledge that it was inappropriate. He said it was a spur of the moment idea when he was filling out the Parenting Questionnaire and he asked them non-leading questions. The family consultant says that the husband admitted asking the children what they wanted but that he denied videotaping the children, saying that he was probably playing with his camera. He said the allegation had been “massively embellished” and that such behaviour would be a “big no-no”. These statements to the family consultant do the husband no credit.
The husband explained that he has asked the children what they wanted in the past, telling them he wanted to present that preference to the court as his position. He explained that he felt it was appropriate to involve the children partially in the decision, considering it was their lives that were being determined. He maintained that position even when reminded of what he already knew, namely that the children’s views were ordinarily presented to the Court by the family consultant reporting on interviews with the children. He later made a comment that he didn’t talk to the children about the family report as it was inappropriate to talk to them too much about court matters.
The wife allegedly said to C that he would catch headlice more often if he spent more time with the husband. The wife denies this and I am unable to find she did so.
The family consultant notes, and I agree, that “the father’s focus and preoccupation with the court dispute is also getting in the way of him prioritising his children’s needs”. I feel the same could be said for the wife, but to a lesser degree.

Wife and Husband’s level of conflict and Level of Communication

Communication between the parents has been by email and text message for quite some time. The husband was unable to recall the last time the parties spoke on the telephone.
The wife said the husband’s communication was intimidating and aggressive. The husband says the wife’s communication is non-responsive and unconstructive. The family consultant noted that the husband’s emails do appear intimidating at times, but that the wife’s ‘composed’ communication could be (unwittingly or otherwise) aggravating.
There was an incident between the parents where the wife kept the children home from school on their last day of school term, when the husband said they had an arrangement that the husband’s time with the children was to commence that afternoon. The wife said there was no such arrangement and denies she kept the children home to avoid them spending time with their father. On the other hand the wife said that at this time the husband had threatened not to return the children. The two statements seemed to me to be contradictory.
An ongoing issue exists regarding the children’s clothing, where the parties do not seem to adequately prepare the children for time with the other party by providing a full set of clothes. The husband has bought a second uniform for each child but complains it is never returned in full. This is followed by disagreements about who should retrieve or deliver the necessary items. Such lack of communication and planning is important when considering an equal time arrangement.
The level of disagreement about the children returning from Town 1 in the past is another indicator of lack of flexibility. At one stage, the husband was insistent about not having to pick the children up from the airport and demanded the wife fly with the children so that she may deliver them to him. What seem to be a practical arrangement was rejected by the Husband because of some notion the husband had as to what was ‘fair’.
The wife and husband’s level of conflict appears irrational and deeply entrenched. This has lead to unnecessary stress and pressure on the children. At times it is apparent the level of conflict has resulted in lack of awareness about the effect of decisions on the children. A stark example that arose during the hearing was when the husband proposed an arrangement whereby the children spend half of Christmas day with the wife and her maternal family and half of Christmas day with the husband. Given that the wife spends Christmas Day in Town 1, this necessitates the children spending approximately four and a half hours in transit on Christmas Day. When the husband was asked to reflect upon his proposal, he conceded another arrangement could be contemplated.
In a similar vein, I note the husband’s reaction to a dentist appointment being in his visitation time and the incident mentioned in the family consultant’s report regarding C’s school camp. The camp occurred in the husband’s visitation time and he refused his consent for C’s attendance. The husband said this was because he only had $20 in his bank account.
A communication book was attempted in the past but was unsuccessful.

The husband’s attitude to the children’s possible learning difficulties

C reported that the husband does not allow him to wear his glasses that were prescribed to deal with C’s dyslexia. The husband said at a previous hearing that he took C’s glasses when he was playing video games because they created glare, despite the glasses having a non-glare coating. In the final hearing the husband said he took them away when C was playing outside because he didn’t want them damaged or lost. The husband claims the glasses are always available to C when he needs them.
There was a significant disagreement about the husband refusing to have C assessed by a psychologist. This was recommended by the family consultant to assess whether C had dyslexia, and possibly other difficulties such as ADHD or Aspergers Syndrome.
The wife had booked an appointment with a psychologist and the husband refused to agree to the appointment. The wife said the psychologist she chose came well recommended by a number of people. The husband had himself booked a later appointment with a paediatrician. The husband said the assessment of such difficulties could only be done by a doctor and the wife’s insistence of a psychologist was inappropriate.
I note that the family consultant had specified a psychologist in her recommendations. When questioned about this, the family consultant did not maintain her preference, explaining that both a psychologist and a paediatrician could be appropriate, provided they had the required expertise or specialities to diagnose all the disorders and difficulties identified, and had experience in developmental psychology.
During the hearing the husband agreed that C could see a psychologist, and compromised his position so that he agreed C could see the psychologist and then see the paediatrician for a second opinion.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

The children currently have a good relationship with both parents.
The husband submits that in order for the children to have a meaningful relationship with him, they need to be spending half their time with him on a week about basis. As an alternative the husband would like to see the children spending at least 5 to 6 days per fortnight with him, but says that 4 nights is insufficient time for them to maintain the benefit of having a meaningful relationship with him. He says his relationship with the children has deteriorated after separation due to the time he spends apart from them. The wife denies this is the case.
The wife maintains that her proposal of four nights a fortnight is sufficient to ensure the children and the husband continue a meaningful relationship.
The wife does not believe additional time with the husband would benefit the children, but would rather be detrimental. She cites the different parenting methods the husband uses and her contention that the husband leaves the children with babysitters. She later mentioned the husband’s lack of appreciation for the children’s potential disorders. The wife later acknowledged that the children mentioned babysitters a couple of times but she has no way of knowing how much the husband uses that service, and the husband maintained that the children rarely reside with a person other than him.
I conclude that on either parent’s proposal the children will be able to maintain the benefit of having a meaningful relationship with both parents.

The need to protect Children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

Abuse, neglect or family violence are not issues in the proceedings.

The additional considerations

Children’s views (s60CC(3)(a))

The husband places weight upon the children’s past comments that they wanted to spend more time with him, and C’s comment to the family consultant that he wanted to spend time with his parents on a 50/50 basis.
The wife also says the children have mentioned their wishes to her, but not for half time with each parent. She said in 2009 the children asked for more time with the husband and she responded by agreeing that they spend time with their father for another two days. The wife said the children have not asked her for any more time since. She added that K had actually asked her to reduce the time she spends with the husband.
The wife conceded that in the 2009 Child Responsive Memo, it was mentioned that C wanted to spend more time with his father but their time together did not increase. It was claimed by the husband that his time with the children otherwise never increased at the wife’s volition but only when she was forced to do so through interim court proceedings.
The family consultant advised the C’s comment regarding 50/50 time should be viewed with caution. There is evidence, and the husband admits the fact, that the husband created a circumstance where C said to a camera being held by his father that he wanted more time with the husband. The family consultant concluded that the children are aware of the conflict between their parents, and had been for some time, and felt the pressure of trying to appease both parties. I discussed above how the husband has been shown to involve the children in the family law dispute. I find that he has attempted to influence the children’s views about spending time with their mother. I find this behaviour inappropriate.
I place little weight on the children’s expressed views.

Relationships of the children with the parents and other persons (s60CC(3)(b))

The children have a good relationship with each of the parents, and an appropriate attachment with each, though the consultant said perhaps they identify more with the wife.
The husband has had a long term relationship with Ms A, which he says is currently at the level of “friends that date” and says they are not living together. C said he gets on well with her as if she is one of the husband’s friends and K says she is ‘friendly’. The wife acknowledged that K and Ms A’s girls are “like little sisters”.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

This is a significant issue in relation to both parents. I have already discussed the level of conflict and the lack of communication that exists between the parties.
The husband says the wife has taken a proprietorial stance about the children and will determine the time they spend with him. He submits that the wife consistently fails to encourage a close and continuing relationship between him and the children. He said the wife does not encourage the children to contact the husband, and actively seeks to limit their time with him.
I note the wife originally challenged the husband’s proposal that he have the first right of refusal should the wife be unable to care for the children. The wife said that it would be the paternal grandmother looking after the children in any case. She later consented to that order sought by the husband.
The wife has demonstrated reluctance to keep the husband informed about the children, despite the existence of an order for shared parental responsibility. The wife said this is reasonable considering the husband’s attitude to any decisions she has wanted to make about the children in the past and the obstacles the husband has put in her way. The husband said the wife only told him about an ear operation for C the day before the procedure was to occur in 2009. The wife says the husband was aware when C went to specialist appointments about the need for the operation, which the wife notified the husband about by telephone. The wife admitted she did not inform the husband of specialist appointments relating to C’s possible dyslexia, but said this was in response to the husband’s lack of support in relation to C’s difficulties. The wife also acknowledged not telling the husband about eczema cream and dentist appointments saying that she was the sole person concerned with such things during the marriage. She was also fearful that the husband would flatly refuse to allow the children to go to such appointment if he knew about them.
On one occasion the wife told the husband about a dental appointment that was scheduled during his time with the children. The husband demanded it be cancelled and the wife complied. The husband was asked to explain his behaviour and said that he didn’t know how much he would have to pay and didn’t know what the appointment was for. He acknowledged that he did not call the dentist to find out, or follow up later. As I have already commented, I have not accepted that explanation as being a candid statement by the husband about his motivation. The husband acted unreasonably on that occasion.
Council for the wife attempted to demonstrate that the husband also takes the children to doctors without consulting the wife, referring to one event where C was sent home from school with a bad infection. I accept that the husband acted appropriately on this occasion. The husband took C straight to the doctor and then gave the prescription for antibiotics to the wife upon C’s return to her.
The husband complains the wife’s behaviour has meant the children could not holiday with the husband and the paternal family in celebration of the paternal grandmother’s 70^th birthday in December 2008 and, on another occasion, could not holiday with the paternal family in December 2009. I make no finding that the wife set out to do these things.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

The children are currently spending four nights per fortnight with the husband, including time on alternate weekends and midweek time.
The husband maintains that a change in the division of the children’s time in his direction would strengthen their relationship with him and therefore benefit the children. The downside is the increased impact on the children of the parent’s inability to agree on most things.
I acknowledge that the husband’s proposal seeks to minimise changeovers, which have been problematic between the wife and the husband in the past.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

The children have traditionally spent part of their summer holidays with the extended maternal family in Town 1. Facilitating the changeovers before and after this time could pose difficulties and specific orders will be made about this time.
The parties live in close proximity to each other and the husband’s residence is convenient, it being the former family home and located close to the children’s schools and paternal grandparents who could assist the husband where need be.

Despite the close proximity of the parties however, there was a contentious issue regarding who was to facilitate the driving at changeovers. The wife conceded she probably has facilitated less than half of the driving and seeks to reduce further her involvement in transportation. The wife’s explanation lacked logic as to why this would be appropriate. Eventually the wife conceded that she and the husband could share the driving equally, and said that it was not a “big deal”.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))

The husband contends that he is better able to assist the children in their studies than the wife but I am unable to say that is so.
I note my comments above in relation to the husband’s lack of understanding of the children’s emotional wellbeing in the context of him involving the children in the proceedings.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

This is not an issue.

If the children are Aboriginal or Torres Straight Islander (s60CC(3)(h))

This is not an issue.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

The wife maintains that she has always been the one to make sacrifices for the children and was unable to recall any sacrifices the husband had made.
The wife claims that the husband does not treat the children’s head lice. She said the children have denied that the husband treated them, and have come home on Sundays with lice when they began their time with the husband free of lice. The family consultant says there is nothing to indicate the husband had not treated the head lice appropriately, despite her report mentioning K’s comment that the husband said “make Mummy clean it up”. The wife conceded that head lice were easy to catch, and could be caught close to the time when children were returned to her. I ignore head lice as an indicator of inattentive parenting by the husband.
The husband challenges the wife’s attitude to parenting given the way he believes she has restricted his time with the children.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

This is not an issue.

Likelihood of order leading to further proceedings (s60CC(3)(l))

Although both parents have demonstrated a highly litigious approach, perhaps final orders and a conclusion of the current litigation will settle the tensions somewhat. The particularity of what both parents seek by way of final orders is a testament to their mutually inflexible attitudes. I will make detailed defined orders. Time will tell as to whether they are effective to reduce further proceedings.

EQUAL SHARED PARENTAL RESPONSIBILITY

Both parents seek shared parental responsibility. Section 65DAC(3) FLA requires the persons who are subject to an equal shared parental responsibility order to consult about and make a genuine effort to come to a joint decision about an issue.
Unfortunately the parents have not been able to communicate in a healthy or constructive manner and the tensions between them have impacted upon the children. In such a case it would normally be inappropriate to order equal shared parental responsibility and have the children exposed to unhealthy interactions. Undoubtedly if one parent feels left out of the decision making, this could heighten tensions. However in this case since both parents seek that I make an equal shared parental responsibility order, I will do so, subject to making some specific orders to cover areas which are problematic.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Given an order will be made for equal shared parental responsibility, the provisions of s 65DAA FLA apply. The family consultant said, that an equal time arrangement is not appropriate with the extreme level of conflict, the lack of cooperation and the lack of helpful communication between the parties. She said that these considerations make a shared parenting program likely to expose the children to more conflict. The family consultant opined in oral examination that any increase in the children’s time with the husband would have the potential to create more conflict and should be avoided for that reason. I agree and conclude that equal time is not reasonably practicable (see s 65DAA(5)(c) FLA in particular) nor in the children’s best interests.
The family consultant did say that substantial and significant time is an option, and acknowledged that the parental conflict could abate once the court proceedings were concluded. She said in her report that it was important for the husband to maintain a relationship with the children through spending significant time with them, including being involved in normal daily activities.
This has to be balanced against the difficulties facing C, and the stress placed on the children by the parties’ conflict. It would be in the children’s best interests to have a secure home base.
The evidence presented to me in these proceedings leads me to conclude that it is not in the children’s best interests to have equal time with both parents. In order to maintain a sense of security and continuity, they should spend what I find in this case constitutes substantial and significant time with the non-resident parent. The parent’s homes are close enough for this to be a viable option, as are their proximities to the children’s schools, support networks and attitude to parenting (see s 65DAA(5)(a) FLA).

CONCLUSION ABOUT BEST INTERESTS

I have found that the children should not have a shared care arrangement, but should have a consistent home base, with substantial and significant time with the other parent. I find that the children should live primarily with their mother, who has always been their primary caregiver and is the parent with whom they identity with the most. This will maintain a sense of security and continuity with the children.
Given that the husband’s equal time order has been rejected, I now consider what is in the children’s best interests for how much time they spend with the parents. As mentioned early in the judgment, the husband said that if I did not consider equal time to be appropriate, he would like at least 5 to 6 days per fortnight with the children. The husband said that 4 days per fortnight was insufficient to maintain a relationship with the children, saying that his relationship with them has declined since separation. The children have been seeing their father four nights a fortnight since February 2009. The family consultant says the children have an appropriate attachment to the husband and that any increase in their time with him would have a destabilising effect. I will be making orders that mean that the husband will have time with the children which meets the necessary requirements under the FLA and on the facts of this case, constitutes substantial and significant time. I find that 4 nights a fortnight is sufficient for the children to maintain their relationship with their father. I consider the children’s stability in their home environment to be a priority given their exposure to destabilising factors in the past.
The family consultant noted that C was coming into adolescence “from a disadvantage” in relation to his difficulties at school. She noted that for a child with special needs, a stable, secure, and conflict free environment is an important requirement. This requires conflict laden changeovers to be kept to a minimum, preferably centred around school to remove parental interaction in the children’s presence. The family consultant thought it was preferable for the children to have one block of time per fortnight to reduce changeovers and because C finds them difficult to manage.
I agree with the family consultant and find it is in the children’s best interests to minimise conflict-laden changeovers by reducing their frequency and having them centred around school. I will order that the husband have four nights with the children a fortnight in one block. This should occur over school days to involve the husband in the children’s day to day lives, and over the weekend to maximise his face-to-face time with the children. I will order that the husband spend time with the children from after school on Thursday to before school on Monday during term time. During school holidays, the children will spend time with the parents in extended blocks. This is discussed in more detail below.

PROPOSED PARENTING ORDERS

I have just discussed my decision to have the children spend time with the husband from Thursday afterschool to Monday morning each alternate week during school term.
In respect of the term 1, 2, and 3 holidays, the children will spend half the time with each parent in one block. The parties’ proposed orders in this respect are almost identical. The difference is whether the public holidays and pupil free days are considered in the orders or notations and whether the changeovers are on the ‘eighth day’ or the ‘middle Saturday’. The effect is the same, unless the children have a free day on the last Friday of school, in which case, one parent will have more weekend time with the children than the other. The effect is minimal, but I will made orders in accordance with the husband’s proposed orders.
Both parties seek orders for Christmas holidays which will necessitate multiple changeovers. The wife normally spends Christmas in Town 1 with the maternal family. The husband’s proposal risks that the children have to travel interstate on Christmas Day. I prefer the orders proposed by the wife. The wife has no proposed orders in regards to special days including Father’s Day, Mother’s Day, and the birthdays of the parties and the children. I will make orders in accordance with those of the husband. The husband makes no special orders for Easter.
Changeovers during school term occur by dropping the children at school or picking them up. I will make the more specific orders proposed by the wife. In the term 1, 2, and 3 school holidays, there is no reason why the driving for changeovers cannot be shared and the parties agree to such an order. I note that the children are now of an age where they can travel as unaccompanied minors. Either party will be at liberty to nominate that the children do so on the basis that that parent will pay the costs of that travel. If the children travel as unaccompanied minors, then the children will be either delivered to or collected from Sydney airport. I acknowledge that having the non-holidaying parent collect the children from the airport could increase agitation in regards to parking costs, waiting for delayed flights and baggage collection, and possibly dealing with tired children in an unfamiliar environment to them, but that is a parental responsibility which I find is reasonable to impose in the children’s best interests. It would fuel tension to a higher degree and be unreasonable to expect a holidaying party to have to interrupt their holiday with a return flight to return the children. However, it will be the responsibility of the travelling parent to return the children to the other parent’s home by the required time if they too are returning from their holiday.
In relation to the parties travelling with the children outside NSW, the difference in the parties’ proposed orders is that the husband wishes this only occur in the Christmas holidays and the wife has not specified when it could occur. I do not see any particular reason to limit the arrangement to only one holiday period in the year.
The family consultant reported that specified telephone contact will assist the parties, and emphasised that the parents should encourage the children if they wish to speak to the other parent at other non-ordered times too. It is in the interests of the children that the orders be specific, to decrease conflict arising from miscommunication. I will make orders in accordance with the wife’s proposals however will increase the time allocated to 20 minutes as 10 minutes is far too little if two children have a lot they want to tell the other parent. If the children do not want to speak for that long they do not have to.
In terms of the non-resident parent having the first option to look after the children if the scheduled parent cannot, I agree with the husband’s submissions that the wife made a concession in her oral evidence about this, and I will order as the Husband proposes.
For overseas travel with the children, I will make the orders that the husband proposes, which are more comprehensive and will allow maximum planning, cooperation and safeguards where long trips are involved.
The parties’ competing orders for who holds the children’s passports seems finicky and unnecessary. If the husband’s overseas orders are made, no party can unreasonably withhold consent for the children to travel. If one party each had a passport I fear this could be a source of future difficulties.
The parties’ competing proposals for the order in relation to C being assessed differ in what he may be assessed for. The wife specifies ADHD, Asperger’s and Dyslexia. The husband specifies ADHD, ADD, Asperger’s, Dyslexia and ‘the like’. I note the old term ‘ADD’ has been superseded by the term ‘ADHD’. However I do think it is prudent not to limit the diagnoses of C’s difficulties by specifying exactly what should be assessed, when an accurate and thorough diagnosis is in C’s best interests. The husband proposes a number of orders that the wife does not deal with which I will particularise to avoid disagreement. I will make orders in accordance with the husband’s proposal that he be able to attend school functions such as performances, but I will not order that the parties be able to attend sporting fixtures unless they occur in the time the parent would ordinary spend with the child, or by agreement. This reduces the potential for conflict on a weekly basis.
The husband suggested a communication book could be implemented. He acknowledged that it was problematic in the past when there were multiple changeovers each week but says it may work in the future. The husband said the last communication book was not used because the wife feared it could be used in hearings, and when he was made to acknowledge the wife used it more than him, he said this was because she had the kids more often. I note the wife’s affidavit of 1 April 2011 extracts a number of emails regarding the past communication book, and that demonstrates the potential of the book becoming a further source of conflict. I will not make the order sought. The parties have communicated by email until now. They can continue to do so.
I will not make the husband’s order that the children attend the prescribed private schools. There is no evidence before me that the parties have the funds to do so, since I find below that there was insufficient evidence that the money contributed to the Queensland property was for that purpose. I will not impose such an onerous order. As will be clear when I discuss the parties’ financial affairs, there currently would be grave doubts as to whether or not either parent has the ability to fund the children’s attendance at private schools.
The family consultant recommended something more than post-separation courses for the parents to improve their communication, which had been attempted previously. She preferred for the parties to undertake counselling together to attempt to resolve some issues. The parties have heard what the family consultant said. The parties are so conflicted however that there would be little utility in making an order that they undertake further counselling unless they both accepted that the process might lead to them acquiring a better level of skill to equip them to deal with the one another as the parents of the children. If the parties both reach that belief, they can voluntarily enter into these arrangements. I do not intend to order them to do so.

APPROACH IN PROPERTY PROCEEDINGS

In this matter my task is to:
150.1.Identify and value the property, assets, financial resources and liabilities of the parties;
150.2.Identify relevant contributions and assess them;
150.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;
150.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

The final agreed version of the balance sheet in this matter is at exhibit L and is transcribed below. I have added a column which sets out my determination in relation to disputed items:

Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	W	VM Golf motor vehicle	$8,000.00	$8,000.00	Agreed	$8,000.00
2	W	Shares – [Company 1] (1,600)	$5,000.00	$5,000.00	Agreed	$5,000.00
3	W	Bank accounts (BOQ) – […33] & […11]	$9,538.00	$9,538.00	Agreed	$9,538.00
4	W	[Credit Union 2] […52], […53] & […94]	$1,547.00	$1,547.00	Agreed	$1,547.00
5	J	proceeds of sale of former matrimonial home	$129,536.00	$129,536.00	Agreed	$129,536.00
6	H	Saab motor vehicle	$5,050.00	$5,050.00	Agreed	$5,050.00
7	H	[Credit Union 2] [17] & […25]	$86.00	$86.00	Agreed	$86.00
8	H	Household contents	$5,900.00	$2,800.00	Determined	$2,800.00
9	H	Jewellery	$1,000.00	$300.00	Determined	$300.00
10	W	Proceeds of sale of [Town 1] land	$137,267.00	$110,773.00	Determined	$110,773.00
11	H	Proceeds of sale of former matrimonial home	$87,627.00	$154,930.00	Determined	$154,930.00
12	H	Paid legal fees	$107,319.00	$107,319.00	Agreed	$107,319.00
13	W	Paid legal fees	$32,000.00	$32,000.00	Agreed	$32,000.00
14	W	[Superannuation Fund 2]	$21,541.00	$21,541.00	Agreed	$21,541.00
15	W	[Superannuation Fund 3]	$6,559.00	$6,559.00	Agreed	$6,559.00
16	H	[Superannuation Fund 1]	$87,478.00	$87,478.00	Agreed	$87,478.00
17	H	[Superannuation Fund 4]	$18,565.00	$18,565.00	Agreed	$18,565.00
Total assets			$701,022.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
18	H	Loan from husband's father	$122,548.00	NK	Determined	$107,319.00
19	H	Unpaid rent due to husband's parents	NK	NK	Determined	$0.00
20	W	Loan from parents for legal fees	$53,460.00	$32,000.00	Determined	$32,000.00
Total liabilities			$139,319.00
Total net assets			$561,703.00

Household Contents and Jewellery (Items 8 and 9)

The husband’s original value of his household contents was $5,900 which he said was based on the cost to replace them. The revised value of $2,800 is based on the price they would be sold at currently. There is no evidence for either value.
The wife’s household contents were bought new since separation and their costs are itemised in the wife’s affidavit. The wife purchased them from the proceeds of sale from the Town 1 property, as outlined above.
The husband altered the value of his jewellery in a similar way as in relation to the household contents. Again, there is no evidence for either value.
I will accept the husband should not be bound by statements he has made against his interests based upon a misunderstanding of the appropriate method of valuation. I accept his estimates about the current resale value of these items, as an admission against interest. There is no other evidence about these matters.

Proceeds of sale from Town 1 property (Item 10)

The wife retained the proceeds of sale of $137,267.08. The proceeds from the sale have been spent by the wife, along with her income, inheritance and child support, primarily on living expenses for herself and the children, but also legal fees. The allocations of that money are outlined at paragraph 4 of the wife’s affidavit of 19 October 2010 and amount to $240,688. Those allocations are particularised in detail later in that affidavit, and include costs associated with setting up her new home for the children, payment of tax and acquisition of a motor vehicle.

The husband is critical of the wife having used this money, despite his own use of sale proceeds from the matrimonial home. He seeks the whole amount be added back.
The wife concedes some amount should be added back from the Town 1 proceeds but not the full amount. She proposes an add-back in the sum of $110,773. The wife has not particularised what items in her expenditure at paragraph 4 of her October 2010 affidavit are included in that amount. I find it would be inappropriate to add back the entire amount received by the wife. It would inevitably involve some double counting. I accept the figure suggested by the wife.

Sale Proceeds of the Matrimonial Home (Item 11)

As set out in the chronology, in September 2003 the husband’s parents transferred the Sydney Suburb 1 property into the husband’s name at a value of $465,000. The husband borrowed the whole amount from his parents who provided an interest free loan secured by a mortgage in the sum of $465,000. The mortgage provided for regular payments of principle.
Despite no mortgage repayments being made since 2004, the husband’s parents (as mortgagees) only issued a default notice to the parties (the mortgagors) in May 2008, two months after the parties separated.
The default notice says the “Repayments of Principle due as at 30 April 2008” were $68,250.06 which equates to 54 unpaid monthly amounts of $12,263.89. I note in passing, if the husband paid four mortgage repayments (on his own evidence; first due 30 October 2003) then there should only be 51 unpaid amounts, totalling $64,458.39.
In October 2008 the husband sold the Sydney Suburb 1 property back to his parents. The wife does not seek to set that disposition aside.
The wife denied ever receiving the default notice. The wife said she was never consulted about this decision. The husband claims there were 6 prior notifications. Those prior notifications were not particularised and are not in evidence. The wife was not consulted about the price or how the net proceeds would be directed. The wife said she only became aware that a transfer had taken place when she sought to lodge a caveat over the property and I accept that is so. A copy of the contract of sale was obtained by the wife only upon the demand from the wife’s lawyers. The husband says he did not consult the wife because he was under substantial financial duress, having nowhere to live as a result of the mortgage default notice. I do not find that the husband was under any particular duress given that the husband’s parents had not demanded mortgage repayments for 4 years, had earlier allowed the couple to live rent free in the property for 4 years, and after separation the husband’s parents allowed their son to continue to live in the property without actually paying any rent (though they say it is due). I have no doubt the husband’s parents would not have taken any serious legal action to evict the husband from the home.
The Sydney Suburb 1 property was sold to the husband’s parents for a sum of $730,000. The wife does not seek to challenge the fairness of that price. From that, the following payments were made:
164.1.Discharge of the mortgage  $453,736
164.2.Interest on the mortgage  $19,283
164.3.Stamp Duty  $28,344
164.4.Legal Fees   $4,424
164.5.Discharge Fees  $92
164.6.Loans paid back to husbands’ parents which had been advanced to the husband for living and legal costs  $107,303
$613,182
The settlement statement shows the balance net proceeds after these payments was $116,817.35 which was put into an interest bearing account in the name of the husband’s father. The balance sheet shows the sum is now $129,536.
The wife argued, and I agree, that a number of these payments should be added back to the net proceeds.
The interest on the mortgage should be added back because the mortgage agreement was interest free on the mortgage documents and it has not been demonstrated to me that interest should have been paid. In the end, this was conceded by the husband.
The husband paid the stamp duty even though he was the vendor. The husband points out that even though this reverses normal conveyancing practice, his parents paid the stamp duty upon the original transfer of the property to them, as purchasers. The husband said that given his parents paid the stamp duty for the parties in the first transfer, so it was appropriate in return they would pay the transfer in the second transfer. I note in passing the stamp duty was not the same amount. The original stamp duty paid by the husband’s parents (which should have been paid by the parties) was $19,115, while the stamp duty paid by the parties (which should have been paid by the husband’s parents) was $28,344 (a difference of $9,229). Eventually the husband conceded during the hearing that the whole of the stamp duty amount should be added back. I will take into account the stamp duty originally paid by the husband’s parents as a contribution made by them on behalf of the husband. The legal costs for the transfer seem to be $4,424.05. It is not explained why the figure was that high. The same lawyer acted upon both sides of the transaction.
Loans for living and legal costs of $107,303.43 include:
169.1.$43,254 for living expenses since 30 July 2007 and prior to separation;
169.2.$24,049.43 for living and legal expenses since separation; and
169.3.$40,000 for future expenses. This $40,000 was deposited directly into the husband’s account without the wife being informed and the husband says it has been applied the following way:
169.3.1.Legal fees of $5,000; and
169.3.2.Living expenses of $35,000.
The husband conceded the $40,000 advance should be added back. The wife wants the whole loan amount of $107,303 to be added back.
The husband says these loans, which partly existed prior to separation, were within the knowledge of the wife. The monies the husband received prior to separation have been evidenced by cheque butts, as have those between separation and 2009. Only three of the loans from 2009 onwards have been evidenced. Besides a post separation loan of $1,049.43 for a hot water system, and a $280.49 cheque for child support, no other loans have been particularised as to how they were applied.
The amount agreed upon to be paid back by the husband to his parents from the monies the husband received from his parents for the transfer of Sydney Suburb 1, was a figure arrived at without any consultation with the wife. Given the overall circumstances of the transaction and the unsatisfactory nature of some of the evidence surrounding it, I accept that the whole of the monies paid by the husband to his parents ($107,303) should be added back and when added to the total value of other amounts that the husband has conceded, the overall figure to be added back against the husband is that asserted by the wife; namely, $154,930.

Loans from the Husband’s Father (Item 18)

The husband’s pre and post separation loans up until the end of 2008 were paid to his father from the proceeds of sale of the matrimonial home (see Item 11 above). Since 2009 and until the husband’s affidavit of 2 November 2010 was filed, the husband has accumulated another $70,124.12 of debt to his father. Without particularising the loans with any detail (as the wife has done), the husband said this debt includes:
173.1.$6,678.46 in child support payments;
173.2.$35,253.26 in legal fees; and
173.3.living expenses.
A loan agreement was written up in August 2010 regarding a payment of $20,000 in August 2010. This was written up after the husband realised these proceedings were imminent. In his Financial Statement of 29 April 2011, the husband puts his debt to his father at $92,547 – an increase of $22,000 in just under 6 months.
In oral evidence the husband said he has borrowed a further $30,000 since his financial statement (approximately 2 weeks) for legal fees.
Some legal fees came from the Sydney Suburb 1 property transfer (part of the $24,849 and $5,000 out of the $40,000) but I have already added all of that back against the husband.
I am unable to do any precise accounting in relation to item 18. I am comfortable that most of the sum claimed at item 18 by the husband has gone into legal fees. The husband’s legal fees were added back at item 12 and I will allow an opposite amount at item 18, thereby eliminating any possible double counting.

Money Owing on Rental Payments (Item 19)

The husband claims he owes his parents $53,460 on account of unpaid rents. He claims that since the matrimonial home was transferred back to his parents upon the mortgage default notice, he has been required by them to pay rent of $590 per week. The husband said he has paid some rental payments, sourced from money borrowed from his parents, and the $40,000 which was taken from the sale proceeds to live on. I find it unlikely the husband’s parents would lend him money so that he may pay rent straight back to them. The husband asks me to accept that the husband’s parents, having issued him with a default notice because he had not made payments of $290 per week since 2004 (having only made four payments), imposed a rental amount of $590 per week, $300 in excess of the mortgage repayments previously due. When considering contributions I will note the generosity of the husband’s parents in allowing the parties to reside in the matrimonial home rent-free from 1998 to 2003, and to live in the home without a default notice despite paying no mortgage instalments between 2004 and 2008, although as a result of the October 2008 deal, they received all of those monies back.
The husband has not been called upon to pay rent now that he has a job paying a very reasonable income. The husband says this is because he has been paying child support, legal fees and general living expenses. I find it very unlikely, with such generosity and previous arrangements, that the husband’s parents would impose such an oppressive rental agreement knowing the circumstances of the husband’s financial difficulties, and allowing him to build up such a substantial debt.
In Biltoft & Biltoft (1995) FLC 92-614 the Full Court recognised that generally unsecured liabilities would be deducted from the value of assets when ascertaining the value of a property pursuant to the provisions of Section 79 FLA. That general practice is subject to certain exceptions available in the Judge’s discretion, including whether or not the debt is likely to be enforced, if it was vague or uncertain, or if it was unreasonably incurred.
The husband said he hopes his parents will afford him some latitude in the payment of the rental debt, though says it would be their decision whether or not to sue him for the money. The husband’s father said he would like the debt to be repaid though will not sue the husband for it as this will send him bankrupt and he will be unable to own his business. He said if need be, he will deduct the debt from the money he allocates to his son in his will. I doubt very much that the “rental agreement” is something that will be enforced. I will not include it as a liability on the balance sheet.

Wife’s loan from parents for legal fees (item 20)

I accept the wife borrowed $32,000 from her parents to pay legal fees. Given that a similar amount for legal fees is added back against the wife at item 13, it is appropriate to include this debt on the balance sheet.

CONTRIBUTIONS

Notation 14 of my orders of 21 September 2010 recognises that apart from the specific items listed below, marital contributions by the parties are equal:
183.1.Gift from the inheritance of the husband’s mother of $37,000;
183.2.Rent free accommodation from 1998 to 2003;
183.3.The purchase of the marital home under value (by about $60,000) in repayment for the husband’s work on the property; and
183.4.A gift from the husband’s parents of $19,115 in relation to stamp duty.
I will deal with each of these matters in turn:
184.1.The husband also claims his parents contributed $37,000 towards the purchase of the land in Queensland. In 2003 the wife’s parents subdivided their land in Town 1, offering the sale of one part of it to the parties for $67,000. To pay that sum $37,000 was provided from the husband’s parents. The husband says in his affidavit that this was money belonging to his mother from inheritance received from the husband’s grandmother, and she contributed on the basis that the investment and any profit was to be used to educate the children at a private school. The husband’s mother’s affidavit also seems to say the full $37,000 was from her inheritance. The wife points to the loan agreement at Exhibit K which states that $27,000 of the money provided by the husband’s parents was the husband’s own inheritance held on trust for him, as well as $1,500 being owed by the husband’s father to the husband on account of uncashed cheques, and an $8,500 loan. The husband acknowledged the written agreement, but said the reference to his inheritance was a mistake that he noticed soon after, but since he had already paid back the $8,500 he saw no reason to correct any mistake. Whilst all of this attracted some attention at the hearing, little turns upon it. It is generally accepted that $37,000 came in from the husband’s side in about August 2003.
184.2.The husband’s parents provided the matrimonial home rent-free for five years. The parties only paid council rates, telephone, electricity and water rates.
184.3.The husband’s parents also financially contributed by transferring the matrimonial home to the parties at a discounted price due to the husband’s manual contribution to the property . The property was valued at $525,000 and was transferred to the parties for $465,000 – a saving of $60,000. This has not been disputed by the wife. However this discount was in recognition of contributions made to the property as discussed below.
184.4.The husband’s parents covered the parties’ stamp duty for the transfer of the matrimonial home of $19,115 (usually the responsibility of the purchaser) and also the stamp duty for the mortgage of $1,761.
I note in passing the husband’s parents also assisted in financing the purchase of the original Town 1 property. Their loan was repaid at the time. The original Town 1 property was sold for a $41,000 profit a few months after purchasing it. The Town 2 block of land was purchased for $72,000 in June 2005. A loan which the husband says in his affidavit was $9,000 and in oral evidence said was $8,000 was obtained from the husband’s parents and repaid within months. This property was then later sold in 2008 for $141,500. I note that the loan agreement at exhibit K allocated the $8,500 loan to the purchase of the first block of land in 2003, not the second purchase in 2005 as the husband claims in his affidavit and oral evidence. When this was raised with the husband he said he hadn’t looked at his account details accurately when he prepared his affidavit.
The husband supervised and performed renovations to the family home. More than $50,000 was expended and the following works were undertaken:
186.1.Removing wallpaper;
186.2.Painting;
186.3.Refitting doors;
186.4.Renovating the fire place;
186.5.Removing carpet and polishing floorboards;
186.6.Demolishing two bathrooms and organising new bathroom installation by tradespeople;
186.7.Demolishing old kitchen and organising new kitchen installation by tradespeople;
186.8.Redesigning the back garden, which included demolition, excavation, construction, repositioning the drainage, planting
186.9.Landscaping front garden; and
186.10.Roofing.
All of this work was done during the marriage. I note that the children were born shortly after the marriage and the wife was primarily responsible for them.
Otherwise, I accept that the parties both made a myriad of contributions over a period of in excess of ten years (September 1997 to March 2008).

Post Separation Contributions

Since March 2008 the wife had continued to be the primary carer for the children. The wife has paid rent for herself and the children since 12 May 2008. Up until 20 January 2010 the amount of $38,958.68 had been paid by the wife towards rent. From 22 February 2010 the wife has been living in Sydney Suburb 2, paying $2,700 a month. The payments made by the wife towards the children’s needs and in setting up a new home for the children are outlined in detail in her affidavit of 19 October 2010, as mentioned above. The wife has conceded that the sum of $110,773 should be added back against her from the sale of the proceeds of the Town 1 property (see item 10 on the balance sheet). These monies funded much of the expenses referred to in this paragraph.
The husband has been paying child support for the children since separation. He had a small overdue debt arising from a reassessment, from which the wife’s child support payments to the husband (based on the most recent assessment) have been deducted. The husband has also purchased uniforms for the children and has paid for their day-to-day expenses when in his care.

CONCLUSION IN RELATION TO CONTRIBUTIONS

The husband can point to an initial contribution of $37,000; stamp duty paid by his parents of $19,000; free accommodation provided by his parents between 1998 and 2003 and an interest free loan between September 2003 to 2008. The deal done between the husband and his parents in October 2008 compensated the husband’s parents for other assistance given to the parties.
The wife has had to use a good deal of the monies she has received since separation (and counted against her on the balance sheet; item 10 - $110,773) to bear the majority of the costs to accommodate and support the children since the separation of the parties in March 2008.
Based upon considering all the matters relating to contribution, I assess that the net assets should be divided 55/45 in favour of the husband.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

At the time of the hearing, the husband was working under an employment contract with his father’s company (about three months into a six month contract).
He hoped to renew his contract. The husband’s father insists he was not involved in the hiring of his son, and I assume it follows, cannot ensure his ongoing employment. The husband is currently earning $1,529 per week after tax.
The husband also started a business (P Pty Ltd) which was not profitable from 2007 until 2010. Since July 2010 until his affidavit filed October 2010 the husband drew a wage of $230 a week from this company. The husband said in that affidavit that future profitability will depend upon a considerable financial outlay which could come from these proceedings. In the husband’s affidavit of 4 April 2011 the husband confirmed that in addition to his employment with his father’s company he still retained his interest as a director and shareholder of P Pty Ltd. He does not mention what wage, if any he currently receives from the company, and nothing is recorded in his financial statement. No value has been ascribed in the balance sheet to the husband’s interest in P Pty Ltd and the husband’s future ability to generate any income from the company is speculative.
The husband’s weekly expenditure of $1,973 exceeds his income, however, as I have mentioned, there is little likelihood the husband’s parents will require their son to actually pay rental of $590 per week.
Currently, the husband is paying $136 per week in child support payments.
Based upon the assessment of contributions, the husband has slightly more net assets than the wife. I take into account however that a significant portion of those assets is held by the husband in superannuation entitlements.
Given the parenting orders which I have made, it is clear that the wife’s earning capacity is far more constrained than that of the husband’s as a result of the time she will need to expend caring for the children.

The wife is employed in a retail business earning $687 after tax each week. This wage is supplemented by government benefits. The husband earns a salary and has an earning capacity which exceeds that of the wife. The wife acknowledges she will have to attempt to work more hours or find a job with a higher salary to assist her support the children.
The wife’s weekly expenditure of $1,823 far outweighs her income. It includes $600 weekly rent for herself and the children as well as general living expenses for herself and the children. The husband doubts the necessity of the level of living expenses, but I consider them appropriate. The husband has also suggested the wife find cheaper accommodation which is curious considering he claims to pay a similar amount for just himself. The husband suggested at one point that the wife’s mother could refund rental payments made to her from the wife.
Based upon the chronology set out earlier, the husband could expect the continuing support of his parents. This is a significant financial resource that he has available to him. The husband asserts that the wife has the benefit of $63,730 of inheritance. As the wife’s affidavit points out, this money, along with the Town 1 proceeds and her income, have been allocated to living costs of herself and the children, legal fees and rent.

Conclusions in respect of s 79(4)(d) – (g) FLA matters

Considering all the matters referred to above, I find that a 10 percent adjustment, in the wife’s favour, is warranted in respect of s 79(4)(d) – (g) FLA matters.

JUST AND EQUITABLE

Based upon the conclusions I have reached in respect of contributions and s 79(4)(d) – (g) FLA matters, an adjustment of net assets of 55/45 percent in the wife’s favour would be the result.
That could be achieved in the following way:

Husband gets 45.0%
Assets
Item No.	Description	Percentage	Value
6	Saab motor vehicle	100%	$5,050
7	[Credit Union 2] […17] & […25]	100%	$86
8	Household contents	100%	$2,800
9	Jewellery	100%	$300
11	Proceeds of sale of former matrimonial home	100%	$154,930
12	Paid legal fees	100%	$107,319
16	[Superannuation Fund 1]	$71,035
17	[Superannuation Fund 4]	100%	$18,565
Liabilities
Item No.	Description	Percentage	Value
18	Loan from husband's father	100%	$107,319
Net Assets to Husband			$252,766
Wife gets 55.0%
Assets
Item No.	Description	Percentage	Value
1	VM Golf motor vehicle	100%	$8,000
2	Shares – [Company 1] (1,600)	100%	$5,000
3	Bank accounts (BOQ) – […33] & […11]	100%	$9,538
4	[Credit Union 2] […52], […53] & […94]	100%	$1,547
5	proceeds of sale of former matrimonial home	100%	$129,536
10	Proceeds of sale of [Town 1] land	100%	$110,773
13	Paid legal fees	100%	$32,000
14	[Superannuation Fund 2]	100%	$21,541
15	[Superannuation Fund 3]	100%	$6,559
16	[Superannuation Fund 1]	$16,443
Liabilities
Item No.	Description	Percentage	Value
20	Loan from parents for legal fees	100%	$32,000
Net Assets to Wife			$308,937

The effect of the above distribution is for the wife to receive the whole of the funds currently held in trust by the husband’s father as a result of the sale by the husband to his parents of the Sydney Suburb 1 property. The wife will also need to receive an amount from the husband’s superannuation of $16,443.
I have no evidence that procedural fairness has been provided to the trustee of the fund and accordingly the splitting order I will make is provisional upon the trustee not raising any objection within 21 days of service of these orders upon the trustee. If the trustee raises an objection, then the husband in default will pay the wife the amount of $16,443.
Standing back, I consider, particularly having regard to the amounts that have been added back against the parties, that this distribution of assets achieves an overall alteration of property interests between the parties which is just and equitable.

CHILD SUPPORT

As noted above, the evidence indicates that the husband is currently paying approximately $136 per week for the two children by way of child support. The wife in her formal application seeks that that be increased to $200 per week. The wife’s formal application contained an application for a departure order and an application for a lump sum child support award. That application was not seriously pressed before me and I will not make any departure order. This however should not be seen as any bar to the wife in the future, should she believe the circumstances justify it, to apply for a departure from the administrative assessment she receives from the Child Support Agency by the normal method.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 5 September 2011.

Associate:

Date: 5.9.2011

[2011] FamCA 706

5 September 2011

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