Mason & McGregor

FAMILY COURT OF AUSTRALIA

MASON & MCGREGOR

[2007] FamCA 119

FAMILY LAW – CHILDREN - Shared parenting - Rebuttal of presumption based on family violence and best interests of child - necessity to consider sharing of parental responsibilities

FAMILY LAW - PROPERTY - property settlement - Add-backs - Contribution of home at commencement of relationship - Section 75(2) – Capacity to work

FAMILY LAW - CHILD SUPPORT

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
H and H (2003) FLC 93-168
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT:

Ms Mason

RESPONDENT:

Mr McGregor

FILE NUMBER:

MLF

921

2005

DATE DELIVERED:

1 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29, 30, 31 January and 1, 2 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mawson

SOLICITOR FOR THE APPLICANT:

Hogg and Reid, Barristers and Solicitors

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:

Stephen Farmer & Associates, Solicitors

ORDERS

That paragraphs 1-10 of the orders made 22 August 2005 and paragraphs 1-4 of the orders made 3 September 2005 be discharged.
That the husband and the wife remain jointly responsible for all major long-term issues concerning the care, welfare and development of the child, a son, born in December 2001.
Pursuant to s 65LA, the parents attend a post-separation parenting program. To give effect to this order, each party do all things necessary to enrol in an agreed program by 1 April 2007 and in default of agreement as to the provider of the program, it be RELATIONSHIPS AUSTRALIA.
That the child live with and spend time with the husband as follows:
(a)       During school terms 1, 2 and 3 of 2007:
(i)From the conclusion of school on Friday until the commencement of school on the following Monday (or Tuesday if the Monday is a gazetted holiday) of each alternate week commencing on Friday 2 March 2007; and
(ii)From the conclusion of school on Thursday until the commencement of school on the Friday of each alternate week commencing on Thursday 8 March 2007.
(b)       During school term 4 2007 and thereafter:
(i)From the conclusion of school on Thursday until the commencement of school on the following Monday (or Tuesday if the Monday is a gazetted holiday) of each alternate week commencing Thursday 11 October 2007; and
(ii)From the conclusion of school on Thursday until the commencement of school on the Friday of each alternate week commencing 18 October 2007.
(c)       During school term holidays as follows:
(i)During holidays at the end of terms 1, 2 and 3 of 2007, from the conclusion of school on the last day of the term until 5.00pm 5 days later;
(ii)During the long summer holidays for 2007-2008 and 2008-2009 for a period of up to 5 days in each 14 by agreement and in default of agreement, the period from 5.00pm on Thursday to 5.00pm on the following Tuesday in each alternate week commencing on the first Thursday after school concludes for the year;
(iii)During holidays at the end of term 1 for 2008 and thereafter, for one half of each school term holidays by agreement and in default of agreement, the first half in every even numbered year and the second half in every odd-numbered year;
(iv)During the long summer holidays for 2009-2010 and thereafter, for one half by agreement and in default of agreement, the first half in every even-numbered year and the second half in every odd-numbered year;
(v)From 5.00pm on 24 December until 12 noon on 25 December in each year;
(vi)On the child’s birthday for the period from 3.30pm to 6.30pm;
(vii)On Fathers’ Day from 9.00am to 6.00pm;
(viii)If Easter falls outside of school holidays, from 10.00am on Good Friday to 5.00pm on Easter Monday on each alternate occasion that it falls outside of school holidays; and
(ix)At such other times as may be agreed.
That the husband and the wife be at liberty to communicate with the child by telephone whilst he is in the care of the other parent at times to be agreed and in default of agreement, once per week on the day which is in the middle of the period and the other party shall do all things necessary to facilitate such communications.
If a changeover under these orders is to occur at a time when the child is not at school, the parties are to attend for that purpose at the appointed time at the M Centre.
That the child live with the wife at all times other than those set out in paragraph 4 of these orders.
Each party respectively have the responsibility for the day to day care of the child whilst he is in their care.
For the purposes of paragraph 2 of these orders, any consultation required to be undertaken to satisfy s 65DAC of the Family Law Act 1975 (Cth) shall be in writing and in default of agreement, the parties attend the program provider referred to in paragraph 3 before commencing any further court proceedings.
Pursuant to s 65K, should either parent die whilst the child is under 18 years of age, the child shall live with the surviving parent.
All times spent by the husband pursuant to paragraphs 4(a) and (b) are suspended during:
(a)       School term holidays;
(b)       The long summer holidays;
(c)       Mothers’ Day between 9.00am and 6.00pm;
(d)From 12 noon on 25 December until 5.00pm on 26 December in each year;
(e)From 6.30pm until 8.30pm on the child’s birthday if a weekday and from 11.00am to 2.00pm if a Saturday or Sunday;
(f)During Easter in each alternate year as otherwise described in paragraph 4(c)(viii);
and shall resume upon the commencement of each school term or special occasion as if they had not been so suspended.
All school term holidays and the long summer holidays shall be deemed to commence at the time that school concludes on the last day of the term and shall end at 5.00pm on the last day before school resumes.
For the purposes of determining what is half of the long summer holidays, the period from 5.00pm on 24 December until 5.00pm on 26 December shall be excluded.
That by 4.00pm on 1 May 2007 (the due date) the husband pay to the wife, the sum of $210,000 (the sum due).
That contemporaneously with the payment of the sum due:
(a)The wife withdraw at her expense, any caveat lodged by or on her behalf over the property at S (the home); and
(b)The wife relinquish any interest in, and the husband become the absolute owner in law and in equity of;
(i)The home;
(ii)The V shares and the NAB shares in his name;
(iii)The Suncorp shares (whether held on trust for the child or otherwise);
(iv)The paintings and memorabilia in the husband’s possession;
(v)The wine collection;
(vi)The boat;
(vii)The rings; and
(viii)The husband’s Citigroup Superannuation; and
(c)The husband relinquish any interest in, and the wife become the absolute owner in law and in equity of:
(i)The real property at P;
(ii)The shares in the wife’s name;
(iii)The BMW motor vehicle driven by the wife;
(iv)Any savings in the wife’s name; and
(v)The wife’s superannuation.
In default of payment of the sum due by the due date, the husband forthwith thereafter do all things necessary to place the home on the market for sale by public auction on terms to be agreed and in default of agreement on terms to be determined by an agent as an expert witness appointed by a registrar of the Court pursuant to Rule 15.46 of the Family Law Rules and upon the sale of the home, the proceeds be applied as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to pay the costs of the said single expert;
(c)Thirdly, to discharge the mortgage to ADVANCE BANK AUSTRALIA LTD encumbering the home;
(d)Fourthly, to pay to the wife the sum due together with interest pursuant to the Family Law Rules from the due date until the payment; and
(e)Fifthly, the balance to the husband.
That each party otherwise retain and the other relinquish any interest in, all other property in the possession of such party as at this date.
That the application of the husband filed 6 September 2006 and the response of the wife filed 18 September 2006 be otherwise dismissed save as to any application for costs by either party.
Any application for costs be filed by way of a letter addressed to the Associate to Justice Cronin by 4.00pm on 16 March 2007 requesting such an order and setting out any written submission in support thereof accompanied by evidence of service of such letter of application and supporting submission upon the other party.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage a lawyer as counsel.
That 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.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 921 of 2005

Ms Mason

Applicant

And

Mr McGregor

Respondent

REASONS FOR JUDGMENT

These are proceedings between the husband and the wife for parenting orders in relation to their son born in December 2001 who is now aged 5. In addition, this judgment resolves the issue of the division of property between the husband and the wife.
When the hearing commenced, there was also an issue in dispute between the parties about which school the child would attend and who would pay. That issue resolved during the hearing and I shall return to it for historical purposes.
The wife also sought spousal maintenance but that did not take much of a profile from the perspective of either party. In final addresses, it was not mentioned.

Background

The husband is 56 years of age and employed as a financial consultant. He appears to enjoy good health. He has for a number of years participated in triathalons including overseas. That was a mutual interest that he had with the wife.
The husband has not repartnered.
The wife is 39 years of age and is currently engaged in home duties primarily caring for the child. She has tertiary qualifications. She holds a degree in Commerce but has not had significant employment within her profession for a number of years. Like the husband, the wife is a triathelete. The difference between them in respect of that sport is that the wife has competed at an international level to the extent that she has been acclaimed as a world champion at her age level. Throughout the relationship and subsequent to its cessation, both husband and wife trained in their sport and appeared to treat it very seriously. The wife receives sponsorship benefits from a bicycle retailer.
One significant bone of contention throughout the proceedings was the wife’s relationship with the proprietor of the bicycle retail outlet. The extent of that relationship is a matter to which I shall turn in these Reasons for Judgment.
When their relationship commenced in the middle of 1997, there was a stark contrast between their respective financial positions. The husband had a much stronger property contribution to bring to the relationship. That included the matrimonial home.
The parties married in October 1999 and when the child was born in December 2001, the wife went out of the workforce.
In early 2002, the parties separated under the one roof and continued (to all intents and purposes) to portray that they were a family until late January 2005 when the wife left the matrimonial home with the child. Proceedings began shortly thereafter.
The litigation has been bitter requiring court intervention in respect of parenting matters and sadly, the parties attended the State Magistrates Court in relation to personal behaviour with a court making an intervention order against the husband in favour of both the wife and the child as “aggrieved family members”. That order affects my judgment.
Notwithstanding the period of time when the parties lived under the one roof ostensibly as a family, it would seem clear that they were unhappy but somehow managed to parent the child reasonably well. However, subsequent to separation, their relationship has turned sour and as I shall point out in my reasons hereafter, I have a very pessimistic view about the prospects of any improvement in the foreseeable future. That assessment affects my determination of the parenting issues concerning the child.

The parties’ applications

The husband’s Amended Application filed 6 September 2006 sought:
(a)That the child live with the parties on a week-about basis, with changeovers to be effected each Sunday at 6.00pm;
(b)That the wife be restrained from taking the child to live interstate or overseas;
(c)That the husband be solely, legally and beneficially entitled to the former matrimonial home situated at and known as S (“the Home”);
(d)That the husband indemnify the wife against any liability for all past, present and future taxes, rates, mortgage payments and other outgoings relating to the Home;
(e)That the wife be solely, legally and beneficially entitled to the real property situated and known as P (“the P property”);
(f)That the wife indemnify the husband against any liability for all past, present and future rates, taxes, mortgage payments and other outgoings relating to the P property;
(g)That the husband transfer to the wife the motor vehicle presently in her possession;
(h)That save as otherwise provided, the parties each retain any assets and resources currently in their respective possession or control;
(i)That the wife pay the husband’s costs of these proceedings.
The husband’s Outline of Case Document was filed on 23 January 2007. The husband stood by the orders that he sought above save that he wanted the following orders as well:
IA That the parties have equal shared parental responsibilities for the child of the marriage, N born in December 2001 (N).
IBThat the child live with the husband as follows:
(a)During school holidays, for one half of each school term and Christmas holiday and in default of agreement for the second half in 2007 and each alternate year thereafter and for the first half in 2008 and each alternate year thereafter.
(b)From 5.00pm Christmas eve until noon Christmas day in each year (agreed).
(c)On the child’s birthday for a period of 3 hours over a meal time (agreed).
(d) In the event that Fathers Day falls on a weekend when the child is not otherwise living with the husband from 9.OOam until 6.OOpm on Fathers Day.
(e) In the event that Mother’s Day falls on a weekend when the child is living with the husband, the husband’s time with the child on the Mother’s Day weekend will be suspended from 9.OOam to 6.OOpm.
(f) That at Easter the child shall live with the husband from 10.OOam Good Friday until 5.OOpm Easter Monday in 2007 and each alternate year thereafter and with the wife at those times in 2008 and each alternate year thereafter (agreed).
(g) That the husband’s time with the child be suspended as follows:
(i)From 10.OOam Good Friday until 5.OOpm Easter Monday in 2008 and each alternate year thereafter (agreed);
(ii) From noon Christmas Day until 6.OOpm Boxing Day in each year (agreed);
(iii) On the child’s birthday for a period of 3 hours over a meal time (agreed);
(iv) On any Mothers Day weekend as provided herein (agreed).
2BThat all changeovers occur from and to the child’s school where appropriate and otherwise at the M Centre (agreed).
2CThat the child be enrolled forthwith to attend at a local Primary School.
Alternatively
2A In the event that the court does not find that the child should live with his parents on a week about basis, then the child live with the parties as follows:
(a) During school term, with the husband on each alternate weekend from after school on the Thursday until the following Monday morning before school; and
(b)During school term from after school each alternate Thursday (being the Thursday immediately preceding the weekend when the child lives with the wife) until the following Friday morning.
(c) The same as provided at I B (a) to (g) & 2B.
The wife filed an Amended Response to the husband’s application on 18 September 2006. In that document she sought:
Children
7. That the parties share parental responsibility for major long term issues in relation to the child of the marriage N born in December 2001 (“the child”).
8. That the child live with the wife and she have parental responsibility for the day to day care, welfare and development of the child.

9. That the Husband spend time with the child as follows:

(a)Each alternate weekend from 10am Saturday to the commencement of school on Monday morning during school Term.
(b)In the intervening week from the conclusion of school on Thursday to the commencement of school on Friday morning during school Term.
(c)In 2007, during school term holidays for a period of five (5) days in Term 2 and Term 3 conditional upon the Husband having leave from his employment.
(d) From 10am Good Friday until 5pm Easter Monday in 2007 and each alternate year thereafter.
(e)In 2007/200 8 long summer vacation for a period of one week and a further period of three (3) consecutive days on dates to be agreed between the parties conditional upon the Husband having leave from his employment.

(f) From 5pm Christmas Eve until Noon Christmas Day each year.
(g) On the child’sbirthday for a period of 3 hours over a meal time.
(h)In the event that Father’s Day falls on a weekend when the Husband is not spending time with the child, the Husband’s time on the weekend preceding Father’s Day will be suspended and the Husband will spend time with the child from 10am Saturday to commencement of school on Monday on the Father’s Day weekend.

10. That the Husband’s time with the child be suspended as follows:

(a) From 10am Good Friday until 5pm Easter Monday in 2008 and each alternate year thereafter.
(b) From Noon Christmas Day until 6pm Boxing Day in each year.
(c) On the child’s birthday for a period of 3 hours over a meal time.
(d) On Mother’s Day weekend from 10am Saturday until the commencement of school on Monday morning.

11.That all changeovers occur at the school where appropriate and otherwise at the M Centre.

12.That the child be enrolled forthwith to attend at M College and the Husband be responsible for all school fees and all associated costs including but not limited to subject levies, uniforms and books.

13.That the Husband be responsible for half of all medical, orthodontic and like associated costs for the child.

Property
14.That the Husband retain the real property situate at and known as S in the State of Victoria.

15.That the Wife retain the real property situate at and known as P in the State of Victoria.

16.That the Husband pay to the Wife such sum as deemed appropriate by this Honourable Court by way of property settlement and spousal maintenance.

17.That the Husband return to the Wife all her personal possessions and jewellery including but not limited to her wedding and engagement ring.

18.That the Husband sign all such documents necessary and do all acts and things to transfer to the Wife the motor vehicle presently in her possession.

19.That otherwise each party retain all other assets and liabilities in their names alone.

20.Such further and other Order as deemed appropriate by this Honourable Court.

The wife did not seek alternative orders other than in respect of the division of property.
Mr Mawson for the wife in opening the case on behalf of the wife said that in respect of property, his client wanted something “in the order of 40 per cent” of the total pool being 30% for contribution and 10% adjustment for factors under section 75(2) of the Family Law Act 1975 (Cth) (“the Act”). He said that that meant that the wife retained the assets in her possession and a payment of about $300,000. In his closing address, Mr Mawson said that on a contribution basis, I should find in favour of the wife as to 30-35 per cent and a further adjustment of not less than 10 per cent making a payment of about $300,000.
Mr O’Shannessy on behalf of the husband set out his client’s position in the Outline of Case saying that:
Overall the wife’s direct financial contribution and homemaking parenting contribution should be regarded as about 20 to 25 per cent.
He then went on to say:
If the Court accepts that the wife has an undisclosed income from F Company (sic) and/or an interest in F Company there should be no section 75(2) adjustment.
If the husband is wrong about that matter then there should be an adjustment in the wife’s favour of between 2-1/2% and 5 per cent.
A 2-1/2% adjustment would be $38,581.00 and a 5% adjustment $77,163.00, which would equate to $154,327 disparity on section 75(2) factors.
Under the heading of “Conclusion”, Mr O’Shannessy said:
The Court should conclude that the wife should receive about 25% of the property pool. The wife already has about 21% of the property pool without adjustment.
I propose to deal with the parenting issues in relation to the child before dealing with property matters.

Credit

In many cases, where factual issues between parties are starkly contrasted, courts are able to make findings on uncorroborated evidence based upon a general finding of credit. That is, the court finds, on the balance of probabilities, that one person’s evidence is generally more credit-worthy than the other and therefore, generally, to be believed.
I have found that principle unworkable in this case. There are issues where I believe the husband’s evidence but not that of the wife. There are others where I have the opposite view. Still again, there are some matters where I can make no finding mainly because of the serious nature of the allegation. There are also matters about which I have declined to make any specific finding because they do not impact significantly on my determination but also because, at best, I am prepared to say I am not convinced that the evidence is at all clear. In some of those instances, I have expressed a reservation about the truthfulness of the material but could go no further.
Having said that, it is generally true to say that in respect of the parenting matters, I found the wife more focussed and clear about what happened to the child and about his current and future needs than the husband. In respect of financial matters, the reverse is generally true. These latter statements are not to be read as specific findings.
Generally, I found both the husband and the wife difficult witnesses to assess. The husband was precise in his answers and direct but not willing to concede an issue where, in my view, it should have been.
I found the wife generally evasive about financial matters and in respect of some, willing to pass off inconsistency on the basis that someone else such as her other witnesses or her advisors had got the story wrong. As I have said, in respect of financial matters, I have lingering doubts about whether I was being told the full story.
I shall turn specifically to all witnesses but I found the wife’s witnesses S and Mr H at times evasive and unhelpful. I found the husband’s witness Ms W objective and honest but when she was faced with an agreed position between the husband and wife, she stood her ground in circumstances where an admission that she could have been mistaken would have been more logical.

The husband’s behaviour

The wife’s evidence of significance on this issue was that:
(a)In or about 2001, the husband became angry about and intrusive in relation to, her private life appearing to have little trust in her;
(b)On the wife’s birthday when the child was about one year old, an altercation occurred in which the husband bit the wife on the hand while she was holding the child. The wife’s mother was present during this incident;
(c)After October 2004, (bearing in mind that the parties had separated under the one roof in early 2002) physical violence “escalated” and that there were “numerous” occasions when the husband endeavoured to strangle the wife including with the child screaming;
(d)After physical and final separation in early 2005, the husband jammed the wife’s arm in the car door as he tried to take the keys from the ignition and again, the child was present in the back seat of the car. During this time, the husband was “yelling” abuse in the driveway of the parties’ home;
(e)In more recent months and after Court orders were made but prior to the intervention order being pronounced and consented to, the husband abused the wife at changeovers calling her a “slut, a whore, a prostitute” and that he threatened her telling her that she had “better watch” herself;
(f)At a changeover on 6 May 2006, the husband yelled at her saying “You are nothing but a slut” and asking “How are Mr H’s knees?”, again, all in the presence of the child;
(g)On 18 May 2006, at a changeover of the child, a dispute occurred about the child being carried in the front seat of the car rather than the back and the husband threatened her, grabbing her jacket and poking her in the chest again saying that she was being followed and watched, adding, “One day you are going to go out on your bike and you are not going to come home”. She alleged that the husband got into his car with the child, drove directly at her, swerving towards her and forcing her to jump out of the way. She said that she then flagged down a police car whose officers pursued the husband but who then reported that they were unsuccessful in catching the husband.
(h)On 20 May 2006, with her “partner” Mr H present, the husband spoke to Mr H and said “Don’t talk to me you slime bucket”.
It was the last incident that gave rise to the wife issuing a complaint and summons at the Melbourne Magistrates’ Court for an intervention order.
The husband’s affidavit of evidence-in-chief was silent about all of the issues above but in evidence in the hearing in a broad-sweeping statement, he said that he had not threatened the wife or her partner, Mr H, nor had he assaulted the wife. However, when it was drawn to his attention by his counsel that his wife complained about his behaviour that gave rise to the intervention order, he said that he acknowledged his behaviour was inappropriate because of the exchange of abuse. He may have been better to have left the evidence at that but he then added: “I asked whether she was happy about a former friend saying that she was a prostitute.” He then stated that the wife at this stage was calling him “gay” and that she threatened to tell the child that he did not love him and that he had wanted the child aborted. He then said that he did not think the incident should have happened but that he did not believe that the child had heard it because the child was sitting in the car. These last mentioned conversations did not appear in the various affidavits.
The wife’s counsel cross-examined the husband about each of the incidents and in respect of the incident relating to the ignition keys and the car, he conceded that something “akin” to that actually happened and that he tried to “placate” the child. When asked what it was all about, he said that he tried to take the keys because he wanted to take possession of the car. He said he had not discussed the concept of “swapping over” the car with the car that he was driving. He was asked whether he intended to take the car by force or discussion and he candidly admitted that it was a bit of both. He went on to add that he regretted what had happened.
Two issues immediately arise out of that. The first is that the incident occurred in front of the child and the second was the unilateral nature of the action of the husband who had conceded that he had not raised the problem of swapping cars in any correspondence between solicitors at that time.
When cross-examined about the questions of changeovers and the use of the words referred to above, the husband again candidly admitted that he had made those comments on more than one occasion. This has to be contrasted against his earlier statement that he was only reporting to the wife what her former friend was saying about her.
Whilst he denied using phrases like “How are Mr H’s knees?” and the threat in relation to it being dark and the wife having to watch herself, he did agree the incident on Wednesday 17 May 2006 in relation to calling the wife a prostitute and a slut occurred as she described.
During the cross-examination, the wife’s counsel put to him that the child was not only present but that he cried. The husband’s only response was that he did not remember the child’s reaction but he thought that the son may not have heard what was being said.
The husband maintained that there was verbal abuse on both sides and went on to add that there would “presumably” be finger pointing. He said that this was the usual way that “one made a point” but then added that he was not quite sure what the point was. He was trying to explain that he believed that the wife was “behaving badly” and that this had something to do with her using Mr H for financial gain because it suited her and that it provided a “cover up” for the fraudulent activities of Mr H and the wife to which I shall soon turn.
When it came to the issue of the November 2006 incident involving Mr H who was caring for the child on that day, the husband conceded that he did use the phrase “slime bucket” but that before Mr H brought the child out to him he told Mr H to “fuck off’. He thought that the child heard that exchange. To put this behaviour in some sort of context but not accepting it as acceptable, the husband and Mr H were apparently not only acquainted but also friends. I shall return to Mr H in much more detail in the financial issue.
The significance of these issues is also that, as Mr Mawson put to the husband, it demonstrates a high level of animosity between the parties. The husband however maintained that rather than it being a personal relationship issue, his concern was the fraudulent activities of the wife which could possibly affect him because of his professional licensing arrangements. Whilst this did not become a mantra, it was mentioned a number of times. I do not accept it as an explanation of concern on the part of the husband.
The husband felt that all of these problems would go away when the litigation finished. I reject that. Ironically, the Family Consultant said that relationships do improve but in this case, the inability of the parties to be civil towards one another including in the presence of their son has continued right up until the hearing. The one odd exception showing that they could be civil (I am not prepared to say co-operative) was on the first day of school for the child which occurred during the hearing. Whether that was an aberration in part as a result of my exhortation, I am not sure.
The wife’s mother gave evidence:
I recall a particularly frightening experience when I was present in their home when [the child] was approximately one year old. It was [the wife’s] birthday. I had given her some flowers and she was putting them in a vase. The husband had not even acknowledged her birthday. She made the comment to me that “At least someone has remembered my birthday”. At this, the husband flew into a blind rage, shouting abuse at [the wife] and calling her degrading names. She went upstairs with [the child] in her arms and the husband chasing her. He was trying to take [the child] from her. She was screaming at him to leave her alone. The husband bit her hand in rage.
The wife’s mother was challenged that that incident did not occur but she maintained that it did.
In relation to the episode concerning the swerving of the car and the wife calling the police, although it was suggested to the wife that the incident did not occur and that had they wished to speak to the husband, the police would have easily found him and taken the matter further, having regard to the husband’s concessions about his behaviour generally, I find that the incident did occur in the way described by the wife.
The wife also alleged that in 2004, physical violence “escalated” and that there were “numerous” occasions when the husband endeavoured to strangle her. There were no particulars of these events and they were not the subject of any particular questioning or comment. Because of their seriousness but the vague nature of them, I am not in a position to find that any such specific event occurred.
In respect of the other issues, having regard to the general concessions of the husband about his behaviour and, in particular, his stated focus of concern, I accept the evidence of the wife that the incidents I have otherwise referred to in paragraph 28 did occur and more importantly, in the presence of the child wherever the wife stated.
These issues occurred as late as the end of 2006. That gives rise to my pessimism about any prospect of the parties dealing with each other in a civilised way.
The husband’s response in cross-examination about the behaviour of the wife was not put to her when she was cross-examined. It was not in the husband’s affidavit as to his views about the wife’s parenting capacity.
Accordingly, I find that the aggressive behaviour of the husband is as described by the wife and whilst I have some reservation about the wife’s role in these conflicts and her approach to having the husband in the life of the child, on the evidence, I am not able to say that the wife has contributed to the husband’s behaviour.
In January 2007, the husband sent an email to the triathelete club to which both husband and wife still belong. It made assertions about dishonesty arising out of a barbecue that was apparently a fundraising event. It was put to the husband that this was just another example of his attitude towards the wife. The husband maintained that his concern was about the financial activities of the club and the people in it rather than the wife. I am not prepared to make a finding that this criticism (if that is what it was) was specifically directed to the wife. I have taken the view that this is not an incident about which I should make any specific comment other than the fact that the club can presumably work out its own politics and control its own members.

The post separation period under the one roof

The wife’s version was that although the parties stayed together in the period when they lived under one roof, the relationship was not good. That included when they stayed in the same room together in Hawaii in October 2003. The wife asserted that in the first 12 months of the child’s life, the husband had a very limited role. She said that from mid-2003 until April 2004, her sporting activities including cycling classes at home enabled her to care for the child on a full time basis. She alleged that when the husband was not busy with his own training, he cared for the child for a limited period of time during the cycling classes. She did however concede that he looked after the child on Sundays when she went for a bike ride.
When the wife was cross-examined about all of these issues, she described the husband’s involvement as “disinterested”. She maintained that the situation continued until January 2005 when it became intolerable. I found it interesting however that she conceded that she “stuck it out” because it was the best arrangement for the child at that time. However, the wife was not prepared to make any concession about the development of the relationship between the husband and the child during that time and she, in hindsight, simply saw the relationship as limited to the time that the husband physically looked after the child. There was nothing enthusiastic about the wife’s view of the husband’s involvement in the child’s life.
That view has to be contrasted with the view of Ms D who was the parties’ agreed psychologist in 2005. She saw the parties pursuant to an order of the Court made on 22 August 2005. In her report, Ms D described the child as a well-loved and special little boy. Ms D was at pains to point out that she was reporting the observations of both parents as well as her own observations and that there was nothing to indicate any concerns.
These observations were made at a time when the child was having a significant involvement in the lives of each parent. It must be remembered that the observations of Ms D as well as her reports of the observations of the parents, were made only eight months or so after the physical separation in 2005. Ms D made two important observations:
(a)[The mother] reported that the relationship between [the child] and his father was “reasonably good” but there was otherwise little goodwill by the mother towards the father;
(b)“[The child] has presented as a happy, confident, emotionally secure and socially well-adjusted little boy”.
There was a clear criticism by Ms D of the wife about her willingness to promote the relationship between father and son yet the child was happy and content. Mr O’Shannessy for the husband valiantly endeavoured during the hearing to point to this as an indication that the happiness of the child must have arisen from the period of time that the parties resided together under one roof successfully and that it was a good indicator of the potential for a shared arrangement in the future. For reasons which I shall elaborate more fully, I cannot see that being the case in the future even if it is true of the past.

Post separation parenting

Little, if any, complaint was made by either party about the parenting of the other subsequent to 2005 save for the behavioural matters in front of the child to which I have referred. The one exception was that the wife complained that the child returned from a period of time with his father with a badly burnt lip. The explanation from the child was that he had used a barbecue lighter and touched his lip to it. The wife’s complaint was that the husband did not mention it to her. In response, the husband said that when he examined the lip, there was no blister. It seems to me conceivable that what the husband says is right and that there was probably no reason for him to mention it to the wife when the child returned. However, because of the state of the communication between the parties, neither was able to talk to the other and that includes the wife telephoning the husband to ask what it was about. The wife’s response in her affidavit of evidence-in-chief was to say that she instructed her solicitor to send a letter to the husband’s solicitor indicating that “such laxity would not be tolerated and that communication between us in relation to such issues is critical”. The complaint was that there was no response to the letter but I was more concerned about the fact that she did not (and possibly could not) telephone the husband immediately that the incident occurred. The fact that the parties have to communicate through solicitors does not bode well for the future.

The homemaker and parent role from 2001 onwards

Even on the subject of who fulfilled what homemaker and parent role was in dispute. The wife said that she undertook the majority of parenting tasks including bathing and changing and that the husband spent Friday evenings after work having drinks with his colleagues and riding his bike on mornings of weekends. She asserted that the husband went to the races on Saturday afternoons. The husband’s explanation was that he did that to gain a membership advantage and that he did not spend any real time at the races. The wife said that on Sundays, the husband would either go for a run or laze around the house. All of this she said, meant that she was the primary carer of the child.
The husband, for his part, said that he did most of the cooking for the family.
The husband was cross-examined about how much involvement he had in the care of the child and he was not prepared to concede that the wife had a far greater role than he did primarily because he was at work and the wife was not.
In respect of the homemaker and parenting role, whilst I accept that the husband did do some of the household chores to which he refers and that at times he did participate in the child’s life, I find that the major role of caring for the child and the management of the household was undertaken by the wife.
In respect of issues of who played what role in the child’s care and in particular, the assertion of one parent being a “primary carer”, whilst it is important to look at the individual roles as indicative of capacity and the specific factors to be examined in s 60CC(4)(a), since 1 July 2006, the legislature has also placed emphasis on what has happened since separation by putting into the Act, s 60CC(4A). In determining what is in the best interests of a child, the focus must be whether the proposals of the parties can be successfully implemented. The past history has therefore some limited relevance.

The husband’s drinking on Friday nights

Although this may not sound significant, the Friday night issue took on some importance because the wife had maintained that she did not want the husband to care for the child on Friday nights because that was a time when the husband habitually stayed back at work to drink with colleagues. She gave this as the reason for maintaining the desire to reduce the time that the child was to spend with his father but she also added that it was a time when the child was returning to her particularly clingy and having a low threshold of anger and frustration. I am not convinced that the two issues were connected. The husband however said that even when he was not collecting the child, he rarely partook in the after-work drinks and that he specifically recalled a period of four occasions over 12 months when he had stayed on for a drink. Although I also have the evidence of Mr H to refer to the background of earlier days when the husband was apparently consuming a lot of alcohol, I have contrasted that with the evidence of the observations of Ms D in 2005 and concluded that the husband may have been a heavy drinker as described but I am not prepared to say that he would prejudice the interests of the child in any way by consuming alcohol to excess whilst the child was in his care. I say this notwithstanding that it was obviously a subject of some concern to the parties in 2005. On 22 August 2005, an order was made restraining the husband from consuming alcohol to excess whilst in the presence of the child or within eight hours of his contact periods commencing. That was a consent order but it was made without admitting the necessity for it. Throughout the hearing, this issue did not appear to be something of great concern to either party and as such, it will not be a determining factor in what days and times I make orders for the child spending time with his father.

The wife’s actions in reducing time subsequent to separation

The husband complained in his affidavit that it was the wife who unilaterally determined the time that he would spend with the child despite his objections. Notwithstanding his objections, he agreed to the times. He pointed to his co-operation as good parenting because he maintained the relationship with the child notwithstanding the way the wife changed things around.
The husband said that the wife allowed him overnight on each Tuesday and Thursday and then the alternate weekends from 5 o’clock on Friday until 5 o’clock on Sunday until the Case Assessment Conference took place in April 2005. Changes to the time that the husband spent with the child occurred on two occasions and it was quite clear that the parties were floundering in trying to resolve that issue. In her affidavit at paragraph 66, the wife sets out what happened and then observes that the husband consented. I find that the husband did consent but reluctantly. The wife unilaterally chose the times that she thought were appropriate for the child to spend with his father. This is an indication of the wife’s view about the husband’s role in the child’s life but more importantly, it again indicates future communication problems. I have already made strong findings about the misbehaviour of the husband as a basis for saying that the prospects for a good parenting relationship in the future are unlikely but in respect of the wife’s unilateral control of what time she thought appropriate for the child to spend with his father, I have strong reservations about her willingness to promote the development of the relationship between father and son.

The allegation of sexually inappropriate behaviour of the husband

My concerns about the wife’s promotion of the relationship extend to an issue about which I am uncertain in terms of making any findings. I preface my remarks by saying that I make no finding as to any sexually inappropriate behaviour of the husband. Leaving aside any question of the standard of proof, this case was not run along the lines that the husband had specifically acted inappropriately.
The wife in her affidavit material said that she wanted to put facts in context so she raised the subject of an incident between the husband and the child reported to her by the child.
According to the wife, in June 2005, without prompting, the child said “Daddy plays with my doodle”. After the ensuing contact visit, the child reported to the wife that he had told his father “Don’t play with my doodle”.
The wife said that the issue had not been raised again.
No report was made to any State or professional authority in relation to child abuse.
Ms D in her report dated 23 September 2005 (three months after the incident occurred) only reported it on the basis that the wife told her that she would be “remiss” not to mention it. Ms D gave evidence that her recollection was that the wife was not “dwelling” on the subject and talked about it as a past event. The subject was raised by counsel for the husband with the family consultant Mr U. Mr U’s response was that he did remember “something about it” but that he did not think it was raised in a major way. My concern about this issue was that Ms D was not troubled three months after the event and Mr U completed his report a year later in October 2006 and it was not raised as an issue.
However, it was the subject of considerable cross-examination of the wife. Initially, she said that she did not recall reporting it to welfare authorities but then added that she had not. She said that she only had the child’s word for what had occurred and had no “proof”. However, she said that she spoke to her brother and sister who both worked in child protection work and that she reported it to a Ms B who was not a witness in the proceedings. She conceded that the only time that she put anything in writing was when she put the allegation in the affidavit. She said that she was comforted that the child had not been sexually abused. She then added that she was still concerned that the child slept in the same bed as his father. This was a concern about inappropriate sexual behaviour between the husband and the child. It was pointed out that there was no application to seek any orders of any nature in relation to this issue and the wife’s response was that that was an “oversight”.
I have serious concerns about why the issue was raised and do not accept that it was put into the affidavit just as a matter of context. The wife clearly harbours ill feeling towards the husband and that increases my concern that she may not foster the relationship between father and son in the future. Added to that problem is the fact that the communication between the parties is so poor that statements made quite innocently by a child may in future be misinterpreted or interpreted in a sinister way by the wife. For that reason, I propose to order, as suggested by the Family Consultant, that the parties participate in the parenting program.

The husband’s accusations of dishonesty

Amongst the matters that I am required to consider are the factors in relation to the willingness and ability of each parent to encourage a relationship between the child and the other parent. In addition, I am required to consider the attitude not only to the child, but to the responsibilities of parenthood as demonstrated by each parent.
The husband made his position very obvious. He said:
I am very worried that the wife’s propensity for fraud and stealing will be a bad influence on [the child] as he grows older. I think it is important that [the child] spend as much time as possible with me so I can be a more positive influence on him in this regard.
In his affidavit, the husband alleged:
(a)The wife stole items from duty free shops, a major retail outlet and an overseas store;
(b)The wife took “frequent sipper club” cards from a coffee shop and used her own hole-punch to punch holes in the card so she could claim a free coffee;
(c)That the wife told the husband how she had taught her mother to survive in Europe by stealing things;
(d)That the husband believed that the wife had made fraudulent representations to Centrelink.
In evidence-in-chief, the wife responded by saying that each of the accusations was “complete rubbish”.
In respect of the Centrelink accusation, the wife said that she did not make an application for a sole parent pension but did apply for a family tax benefit.
The husband was cross-examined about each of the issues and maintained his position. He asserted that he found the Coffee Club cards in his wife’s handbag and he took them but he could not say when. He said it was prior to the 2005 separation and he took a photograph of them and put them back. He believed that the hole-punching device was something that the wife had “borrowed” as well. When asked why he photographed them, he said that he thought at that time that he might be able to, or have to, use the information in the proceedings.
In relation to the wife’s mother, he simply reiterated that that was what the wife told him.
On the fraudulent Centrelink allegations, he acknowledged that they were serious. He said that he believed that an application for a sole parent benefit existed but he had never seen the document.
Although he acknowledged that the allegations were serious in respect of the wife’s suitability as a parent, he also maintained that the wife had no regard for his professional livelihood in the finance industry a subject that I have earlier mentioned.
I shall return to a number of other issues relating to accusations of dishonesty and in relation to the credit of both parties when I deal with the financial matters below. However, insofar as the accusations above relate to parenting, I say that I am certainly not prepared to find that there was any basis for them. I do so because the husband conceded that he relied on his belief in some cases, had no documents in others and in relation to the stealing from shops, I only have the evidence of such from the husband. The wife denied making any such statement and denied the stealing.
To find that dishonesty has occurred can only happen by strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336 and also s 140 of the Evidence Act 1995 (Cth). In children’s matters under Part VII of the Family Law Act 1975 (Cth), where the issue is what relationship the child is potentially going to have in future with the wife, the authorities make clear that the grave consequences of such adverse findings cannot be overstated. Trial judges must apply the strictest of standards of proof before making a positive finding. Accordingly, I am not prepared on this evidence, to make such findings.

THE EVIDENCE OF MS D

Ms D is a clinic psychologist with 19 years experience in the preparation of family reports and assessments. Neither party challenged her qualifications.
Ms D was called by the husband to give evidence but her report was prepared as a result of an order of the Court in 2005. Her report, attached to an affidavit, was dated 23 September 2005. She saw the parties and the child in September 2005.
Ms D said that she had read the updated report of Family Consultant Mr U and the various affidavits of the parties. She thought that when she saw the parties, the child was going “pretty well” and was a credit to both parties. She thought that in 2005, the relationship she witnessed between each parent and the child indicated an involvement of both of the parents in his life. There were then no signs of separation anxiety in the child.
I have already mentioned the discussion between the parties and Ms D about sexually inappropriate behaviour.
When asked to focus on the “level of disputation” between the parties, Ms D confessed that it troubled her. She concluded that she could not support a week-about arrangement for the child.
As for what was appropriate for the child, Ms D said that the husband’s proposed routine was supportable and in relation to the dilemma of lengthy school holidays, she thought that they could be phased in over time. Notwithstanding she thought that a week-about arrangement was not supportable during school terms, she had little difficulty with the summer holidays being rotated on such a basis.
Ms D said that for a week-about arrangement during school term to work, there had to be mutual respect and trust between parents. She agreed with what the Family Consultant had to say about that.

FAMILY CONSULTANT : MR U

Mr U is a Family Consultant attached to the Court with many years of experience. Neither party challenged his expertise.
Mr U saw the parties and the child a year after Ms D.
He had little difficulty recognising the communication problem that I have mentioned.
In relation to the violence issues, Mr U reported the wife’s citation of abuse and the husband’s controlling attitude continuing to the present time. He said that the husband played those matters down as being exaggerated or point-scoring. Each party had a different view about whether the child was exposed to those disputes. He commented upon the lack of trust of each other which highlighted their respective motivation for the orders they sought. He said it was not a “good dynamic”.
When Mr U observed the child with the husband, it was entirely positive and unremarkable and there were no signs of separation anxiety.
All indications to Mr U were that the child had a warm and loving relationship with both and each acted vigilantly and appropriately.
Mr U felt that having regard to the age of the child, there was no point in attempting to establish his views.
Like Ms D, Mr U was convinced that the inappropriate sexual behaviour allegation had not been raised by the wife in any major way.
A conservative approach to the future needs of the child was adopted by Mr U saying that at 6 years of age, it was too hard to tell how much time he would cope with, away from his mother. He disagreed with Ms D on her view that the husband’s proposal was workable and used the phrase “less time between drinks” as being the important consideration for determining what was in the best interests of the child. He would not be drawn on whether that could be increased at a specific time later this year.
Like Ms D, Mr U would not support a week-about arrangement.
A conundrum arises when Parliament’s intention for courts to seriously consider parents sharing responsibility for children and consequently if it is found appropriate, to share time, is set out in the form of a presumption. The presumption which in due course leads the court to address the issue of shared time may be rebutted in the case of violence or where it is found to be contrary to the best interests of a child for it to be applied. The evidence of these two very experienced social scientists was clear that the physical shared caring arrangements in a case like this were not appropriate, by which I understood them to mean that it is contrary to a child’s best interests. If the evidence of the social scientists is accepted, and in this case it is, that must give rise to a court turning to s 61DA(4) to rebut the presumption.
Mr U, supported by Ms D, summed up the position as follows:
47.[The husband] is seeking orders for a week about shared care arrangement. It is this consultant’s experience that regimes of this nature work best when the following factors are present: a mutual commitment to such an arrangement, good communication, trust and geographical proximity to name but a few. Of these factors, the only one present in this case is geographical proximity. Otherwise there is a total lack of communication between the parents. If these parents cannot even discuss and resolve an issue as vital as that of their child's schooling, then one can only wonder how they will negotiate the myriad matters that require attending to with a week about arrangement in place.
48.If what [the wife] claims is true there are a number of additional elements present in this case which militate against the "workability" of a shared care arrangement. These include: the possibility of violence on the part of [the husband], the expressed fear that [the wife] has of her ex-partner and his alleged propensity to become abusive and violent towards her.
49.In addition, the presence of intervention orders (active/current till the middle of next year) entails an additional barrier to effective communication and its presence is an additional contraindication to this kind of proposal working. Trust is also gone replaced now by mutual suspicion and there is no joint commitment to such an arrangement. Unless two people can cooperate and parent together, then it seems desirable for one parent only to assume the bulk of the responsibility for the day to day care of their child.
50.Furthermore, to go to Court and litigate for orders to put in place what is effectively a highly cooperative parenting arrangement seems a contradiction/paradox.
51.In light of the very poor communication which exists between the parties coupled with some of the other factors alluded to above, this consultant cannot support the week about/shared care orders sought by [the husband].
This Court has historically taken that view as well.
In H and H (2003) FLC 93-168 Ryan FM (as her Honour then was) set out at page 78,702 a checklist of factors that are useful to examine where a shared regime is pursued. They included:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?;
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?;
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern;
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise;
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities;
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?;
·Whether or not the parties respect the other as a parent.

The checklist is not exhaustive but in this case, on the findings I have made, the balance favours the view that the parties cannot work together. The disagreement about schooling, the abusive behaviour of the husband, the wife’s harbouring of distrust of the husband’s behaviour with the child and her unilateral behaviour since separation all make it clear that an equal shared arrangement would not be in the best interests of the child.
That does not mean that there should not still be a sharing of the responsibility by each party for the making of major-long term decisions about the future of the child. For the reasons I have set out, I do not believe that it would be appropriate to simply give the wife that responsibility. Using the schooling as an example again, it was only after the hearing began that the parties were able to resolve which school the child was to attend as his first day the very next day. That dispute was in my view, mostly a philosophical one and when the agreement was eventually reached with the spectre of my making a decision, the parties both attended on the first day and behaved well.
Before turning to what parenting orders should be made however, the path to be followed requires an examination of the presumption.

Legal Issues

Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)      the time a child is to spend with another person or other persons;
(c)      the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)       maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
that a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
I have set out below how the Act defines major long-term issues.
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(1) The objects of this Part 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
Fundamental to my decision in this case is the provision of s 60CA which says:
In 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.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)      the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I do intend to make parenting orders and as such, s 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The rebuttal of the presumption arises from a finding of family violence. Family violence is defined in section 4 of the Act as follows:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The Legislature has added the following note:
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
I am satisfied that the incidents occurred as I have found them. The definition requires a person to reasonably fear for or be apprehensive about, their personal wellbeing or safety. It is a simple definition yet unlimited in time or severity. The inclusion of the word “reasonably” imports an objective element. Was the wife fearful of her well-being? I find that she was and refer to paragraphs 50, 59, 60, 63, 69, 88 and 91 of her affidavit. The cross-examination of the wife was limited to an assertion that the various incidents did not happen and her response was that they most certainly did.
On that basis, the presumption is rebutted.
Even if that were not so, s 61DA(4) goes on to provide a second limb for the rebuttal of that presumption where it would not be in the best interests of a child to have the parents equally responsible. It says:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In this case, I have made findings about parenting responsibility based on the evidence and I find that for the purposes of the presumption, it would not be in the best interests of the child for the presumption to be applied. To achieve that position however, I have examined all of the s 60CC factors and I shall set those out below.
That does not mean that I should simply ignore the issue of the responsibilities each parent has to parent the child. Each parent seeks a sharing of the responsibility albeit in slightly different terms.
To all intents and purposes otherwise, the husband has a significant interest in all matters that are defined in the legislation in section 4 which in part reads:
major long-term issues in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)      the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)      the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
I am therefore concerned to ensure that the husband continues to have a significant involvement in the planning of the child’s future jointly with the wife. I propose to ensure the continuation of that involvement by the orders that I make.

ORDERS FOR TIME TO BE SPENT

Notwithstanding the rejection of equal shared parental responsibility for the purposes of the presumption, there is still a need to consider the husband’s request for a week-about regime.
Having decided to reject equal time, it is also important to contemplate a shared regime otherwise which enables the husband to participate in his son’s life so that the child benefits in a meaningful way.
I have a conflict in the evidence between the experts about how much time the child should spend with his father and it is difficult for me to distinguish between the experts in this case.
Although relating to the presumption, Parliament has seen fit to give some guidance about what it sees as substantial and significant time between parents and children by setting out s 65DAA(3). It reads:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
I have borne in mind that the primary consideration is still the best interests of the child but I think it is necessary to make orders which do give some finality to the parties and allow the child to settle into an established routine. I have taken into account the “less time between drinks” concept of Mr U whilst giving weight to what Ms D said about the capacity of the child to cope with what the husband seeks. I therefore propose to make orders which will enable the child to build up to what the husband has suggested during this year.
I turn then to the provisions of s 60CC. The considerations are divided into two parts as I have set them out above. The first of these is said to be primary considerations namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
It is important to recognise that the Court is obliged to consider the benefit to the child of having a meaningful relationship with both parents. The child appears to have a meaningful relationship with both parents and all of the evidence that I have seen and heard suggests that he benefits from that.
Whilst there is no legislative guidance about what all of that means, I think that to be meaningful, the relationship must be one in which the child has an opportunity to do both educational and leisure activities. The orders I propose to make will enable the husband to do things in the everyday part of the life of the child other than just leisure things. He will for example, have to organise and get him to school.
The second primary consideration is the need to protect the child from physical or psychological harm by being subjected to or exposed to, family violence. There is no doubt that he has been exposed inappropriately to his father’s views about the wife and her partner Mr H. My orders should reduce the need for that to continue.
I now turn to the additional considerations and point out that I find them as important in my determination as the primary considerations.
Neither party articulated that the child had any views about parenting orders and that is appropriate having regard to his age.
In respect of his relationship with each of his parents, notwithstanding all of the negative things that I have expressed above, I am quite satisfied on what each party has said and also on the views of the two experts that the child enjoys a very close, warm, loving and supportive relationship with each parent.
Although each party expressed the view that they were supportive of the relationship of the other, I refer back to what I have said earlier about my reservations about the wife’s attitude in respect of facilitating and encouraging a relationship between the child and the husband. I have taken into account that factor in making the orders enabling the husband to spend a dedicated period of time with the child so that he will be a significant parent in the child’s life in the future. The husband has expressed the view that he believes that the wife is a good parent and my only concern is whether his behaviour as I have set out above is indicative of what he really thinks about her and if that is the case, I also have a reservation about his willingness to continue the positive relationship between the child and his mother. Because of the reservations in respect of both parents, I reiterate that I intend to make an order that the parties undertake a form of counselling or therapy.
I do not think that the orders I am proposing to make will have any effect upon the child in respect of the time that he has with his father. It is clear on the evidence that the father has managed the periods of time well. The wife and her mother have both expressed the view that the child exhibits signs of separation anxiety. However none of those symptoms was seen by either Ms D or Mr U. This has a particular impact on the question of what time the child spends with his father during school holidays. Mr U was reluctant to commit himself to a period of time at which the child will be capable of managing a lengthy holiday period and for that reason, I have decided to fix the holiday periods conservatively.
There is no practical difficulty or expense associated with the child spending time with and communicating with each parent because each is living within a reasonable proximity of the other at the moment.
Subject to my reservations about each party, each parent has the capacity to provide for the needs of the child both at an emotional and intellectual level. Each must, however, put the past behind them and concentrate on what is best for the child.
There are no lifestyle, culture or tradition issues associated with either parent, nor are there any Aboriginal cultural issues that I need to take into account.
I have already expressed my reservations about the attitude that each parent demonstrates in relation to the responsibilities of parenthood and it is my intention by making parenting orders to ensure that not only the child enjoys the benefit of a meaningful relationship with each parent, but that each parent knows that they have a responsibility to ensure that the other parent is involved in a significant way in the child’s life. Leaving aside all of the negative things about domestic violence in all its forms and the unilateral nature of the actions of the wife to which I have referred, each party otherwise demonstrates a responsible attitude to parenting.

I have taken into account the family violence and the family violence order as I have set out in my findings above. Sadly, in this case, those matters have made a significant difference to the question of the capacity of each parent to work together harmoniously. With the orders I have in mind, I would not expect that there would be any situation in the future where there is a need for the parties to confront one another.
I have been very conscious of the fact that the parties have been through traumatic litigation over the past two years. They need it brought to an end for the sake of the child as well as themselves. Mr U was reluctant to say what the child could manage in terms of separation from each parent. Mr U felt that that was something that would evolve and the parents would have to work towards it. I am more optimistic than that. I accept the evidence of Ms D that the child would cope with a phasing in of longer periods of time, particularly as he grows older. He will understand what holidays are all about as distinct from attending the daily chores of school. On that basis, I think it would be preferable to make orders of a final nature with a view to ensuring that further proceedings are unnecessary.
Part VII of the Act also requires a Court to take into account and to consider the extent to which each parent has fulfilled or failed to fulfil their responsibilities as parents particularly in relation to the participation in decision-making of major long-term issues and also the daily activities of the child. I have made findings that are critical of both parents. I repeat that that is the basis upon which I have decided to make the precise orders that I have.
Section 60CC(4)(c) also requires that the Court consider the extent to which a parent has fulfilled or failed to fulfil an obligation to maintain the child. In this case, the husband has paid child support as assessed. When cross-examined about that issue, he indicated that he would do whatever it was that he was legally obliged to do. He was vague about that issue. The legislation is not talking about obligations created by a formula. Section 60CC is referring to the obligation to maintain a child. That, in my view, means looking really to the needs of the child and ensuring that wherever possible, those needs are met. The artificiality of the formula oftentimes does not meet those needs. The husband’s attitude is that he will pay whatever he is required to do and that means that he can use the orders that I am making as a basis to determine what his child support obligations will be. It would be much better for he and the wife to sit down and work out what the needs of the child are. This is going to be a significant issue in the future having regard to the commitment that the wife has made which is endorsed on the orders I made during the hearing about private schooling. I expressed the concern that with her limited income, it would appear that the payment of private school fees will be coming out of capital or some other unknown source. The husband has made his attitude very clear about the payment of private school fees but along with school fees in the private school system come other expenses and responsibilities which will be expensive. I would hope that the husband sees his obligations beyond those newly determined by a formula so that he can assist the child.
Section 60CC(4A) also requires a Court to consider the events that have occurred subsequent to separation. I have expressed my views about each parent’s role subsequent to separation in the findings I have made.
The orders I propose will enable the child to benefit from what I expect will be a meaningful relationship with his father and his mother. The orders are in line with the view of the two experts but I have made some changes. Now that the child has commenced school, the changeovers will mainly occur at the school to alleviate some of the difficulties between the parties. That in turn will hopefully protect the child from the psychological harm of being exposed to his parents’ fighting and unpleasant behaviour. I do not believe that the child is likely to be harmed physically by either parent.

PROPERTY

I have already set out the background in the initial contributions.
Before turning to the approach to the division of property, I set out various aspects of the evidence. These matters relate to financial issues.
The husband argues strongly that the wife is in a relationship with Mr H, receiving benefits from him and his business, has a capacity to work in her qualified profession as an accountant, earns an income in cash from her sporting ability without declaring it and is generally untrustworthy and dishonest.

The 2003 “Coaching Log”

The husband produced an unsigned letter addressed “To Whom It May Concern” purporting as set out that the wife’s coaching log in February and March of 2003 totalled 37 hours. The letterhead purported to be from a business called P.
The husband produced this letter, which he said he found, to show that the wife was working far more than what she claimed. The wife’s response was that she could not see how the document was correct and gave as an example that on 1 March 2003 she was in fact in New Zealand. She alleged that the husband “fabricated” the letter. No document such as a passport or any other evidence was produced to show that on 1 March 2003, the wife was actually in New Zealand. More importantly, counsel for the husband asked the wife whether she had discussed the matter with Mr S who purported to be the author of the letter. She said that she had asked Mr S who responded that it was something just like what the husband would do. When asked when she spoke to Mr S, she said that she did that as soon as she saw the affidavit of the husband.
Mr S gave evidence and said that he was shown the document on the morning before coming into the witness box for the first time. It was shown to him by counsel for the wife. He said that he could not recall creating it but it looked very inaccurate and he certainly did not recall being asked by the wife to produce any such document. When he was cross-examined, he reiterated that he had not discussed the document with the wife.
I found Mr S unconvincing on this issue. He was asked whether it was possible that someone else within his business could have produced it and he conceded that it was possible but that whoever had produced it must have had a good knowledge of the way his business worked. He said that he did have the website and that the only things that were on the website were the sessional training programs. I presume that the inference that I was to draw was that someone could have downloaded his letterhead and put the details into the letterhead from the website. Having regard to the inconsistency between the evidence of Mr S and the wife on the question of the knowledge of the document, I do not accept his evidence.

The wife’s relationship with Mr H

In or about February 2006, the wife commenced a relationship with Mr H. Mr H was a former friend of the husband. In her affidavit, she said that she did not live with Mr H who had his own home and that she was uncertain whether the relationship would be a long term one.
The husband, however, asserted that there was a de facto relationship from February 2006. More importantly, he asserted that the wife derived income from employment with F Company which was owned by Mr H as well as enjoying his financial support. He pointed to the fact that the wife had travelled on separate trips overseas and interstate with Mr H.
In his report, family consultant Mr U said that the wife “lives with” her employer and sponsor. When the wife was cross-examined about that, she said that she thought that the husband may have told Mr U about that but in any event he got it wrong. Mr U said that he wrote “lives with” in his notes when he was discussing matters with the wife. He was confident that that was what she had said but he may have used the words loosely.
This subject was canvassed at length including the question of how much rent the wife paid for her accommodation. The property in which she resides is owned by the company of Mr H. He bought it as an investment and the wife was his first tenant. He conceded that the $303.00 per week that the wife pays is well below market rent. Notwithstanding that, the wife in her affidavit said that Mr H had his own home. He said that he was living with a friend and at times had been “house sitting” and that when he sold his home, the furniture mostly went into the unit in which the wife is now living and she was using it.
Mr H was cross-examined about the depth of the relationship and he said that he stayed with the wife one or two nights per week but only when the child was staying with his father. He said that he had no problem with being there when the child was there. He also said that he went there quite often for dinner and there were meals one or two nights per week. When he was questioned about why he was being so generous to the wife, he replied that they were very, very good friends and he guarded that with “a lot of honour”.
I am quite satisfied that the wife does not live with Mr H within the meaning of the word “cohabitation” in s 75(2) of the Act but that their relationship is strong and close and certainly more than a general employer/employee. I am unable to say what the future holds and as I pointed out in an interim ruling in this hearing, whilst I am entitled to take into account the potential benefits that the wife may gain in the future from the relationship, I am not convinced that the financial connection between the wife and Mr H is such that it could be seen as a commitment of strength.
In determining the entitlement of each party to a division of their property, the court follows a four-step process. It is important to note that s 79(2) of the Act says that a court shall not make an order unless it is satisfied that in the circumstances, it is just and equitable to make that order.
In the process of a determination of the parties’ respective entitlements, a court is obliged by s 79(4) to take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) (of the Family Law Act) so far as they are relevant; and
(f)any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The four-step process taking those matters into account is, in my view, best set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia[1] where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
[1] (2003) FLC 93-143 at pa 78,386

The pool

The first step in the four step process is to look at the pool of assets. Each party provided a schedule. Whilst there was no major disagreement about the various items, there was significant dispute about what items should be included in the pool, what should be left out and what values (if any) should be attributed to the various assets.
The parties agreed on the value of the matrimonial home, the paintings and memorabilia, the wine collection, the rings, the husband’s superannuation, the P property and the wife’s CBA savings account. The rest of the assets were nominally disputed. The dispute was more about whether the current value should be used or the date of separation. Whilst it is normally the practice to use the value at the date of hearing, I have varied that having regard to the fact that monies were used by both parties for various purposes, including living and legal expenses subsequent to separation. In some cases to which I shall refer, it is more convenient to look at what each had at separation rather than trying to discern what they did with things and add them back.

The home refinancing

In April 2003, the husband borrowed $58,600 by extending the mortgage on the S home. The mortgage then went out to $180,000. He said that he used the funds to pay off a credit debt and an overdraft as well as paying out a car loan but otherwise the balance went towards ongoing general living expenses. In respect of these living expenses, he conceded that he had used a similar amount to that which the wife had used when she sold her interest in the Cbusiness.
The C business was a business of the wife and her sister for which she paid $22,000 and later sold her interest to her mother for $17,000. I accept the reasons of the wife for selling it at arms length to her mother and see nothing sinister about the sale at a lower figure. In any event, the wife used the funds for various purposes including legal fees and living expenses.
Because these various sums had been used for living expenses, including legal fees, notwithstanding the urging of the husband to add them back as the “neatest” way of dealing with them, I propose to exclude the C business money but also to take the mortgage on the S home as at the time of separation. That has to be contrasted against the fact that the husband sold a Nissan motor vehicle and received $22,000 which sum was not used towards the acquisition of the current motor vehicle. I propose to include the $22,000 in the pool to be credited against the husband’s entitlement. Similarly, the husband sold shares after separation out of which he paid the professional account of Ms D. I accept the suggestion of the husband’s counsel that the appropriate figure to include in the pool is the net sum, namely $9,136.
Each party has shares and to ensure that they are appropriately dealt with, I have used the valuations as at January 2007 for inclusion in the pool.
There was a dispute about the value of the husband’s boat. Neither party had a sworn valuation. The wife used a figure of $14,500. However, the husband swore in his statement of financial circumstances that it was worth $7,000 and I propose to take that as an admission against interest and put it into the pool at that sum.
Where the parties otherwise were apart related to values of shares and I have taken counsel’s assurance that the figures used were up to date.

The rings

The two rings are valued at $8,450. The value is not in dispute. What is in dispute is that each party wants to retain the items. The husband says that these are the rings created from the stones that he owned for many years prior to the relationship. I am not entirely sure what the sentimental value is for either party and whether or not the rings became part of this internecine war. The wife’s evidence was that prior to separation, she would take off her wedding and engagement rings when exercising and place them in a drawer in the bathroom. Six months prior to leaving the home in 2005, she returned to find them gone. She said that the husband told her that he had taken them and was not giving them back. The wife went on to say that the rings had “emotional significance” for her.
The husband unashamedly said that he had retained the rings because they were “flung” at him one night and he was told what he could do with them in graphic terms. He agreed that this incident occurred in around the middle of 2004 which is certainly consistent with the period of time that the wife says that they disappeared.
Whilst this issue did not take up an inordinate amount of time in the hearing, it is indicative of the state of the relationship between the parties. I accept that the husband did own the stones prior to the relationship and I am not at all sure what the emotional attachment is that the wife is referring to. I propose to allow the husband to retain the rings but they form part of the pool and will be credited against his share.

The BMW 5 series

During the pregnancy of the child, the wife sold a BMW motor car and received approximately $21,000. She said that this sum was applied to the purchase of the next BMW and she withdrew money from an ANZ bank account which had a balance of $10,500 and a further $12,000 was drawn down from her mortgage over the P property. The remaining balance was financed by way of a loan from RACV which was for approximately $28,500.
The husband’s version was that in September 2001, he purchased the BMW and obtained a loan from the RACV. On 13 December 2001, months after the loan was taken out, the wife produced $20,000 in cash which he put towards the RACV loan. When he asked where the money came from, he said the wife replied that it was “hot from the safe at [F Company]”.
In cross-examination, the wife said that she could not verify the details, but that she knew that $12,000 came from the drawdown on her mortgage account in December 2001. When it was put to her that that was not possible because the BMW was not sold until the following February, her only response was that it was not obvious. She alleged that the purchaser of the first BMW car wrote the cheque out to husband and that the husband put that sum into the RACV loan.
I am not able to make any specific finding in relation to this issue but I accept that it is more probable that the husband’s recollection of events is correct. What is disturbing, however, is that this evidence was really intended to show a much closer relationship between the wife and the proprietor of F Company, including to the extent that the wife was earning money rather than just being sponsored by that company. It seems implausible that that amount of money would be held in a safe as some form of accrued wages and even more implausible that the husband who was aware that the wife was working at the F Company shop would not have, at some stage, questioned why no wages were being brought in to the home. The husband said that during the marriage, the wife regularly brought home cash in envelopes from her employment with F Company. Having regard to the fact that the husband was at pains during the hearing to say that he was worried about his integrity for his finance licensing purposes, I find it hard to accept that he would have simply accepted that his wife brought home money in cash on a regular basis. In the end therefore, in respect of this issue, I am unable to make any finding one way or the other. In addition, I do not see this matter as affecting my determination or assessment of the contributions of the parties in any significant way.

Accordingly, I find the pool of assets to be as follows:
1.    Home   $1,200,000
Less mortgage  171,500          $1,028,500
2.    Husband’s shares  10,715
3.    Suncorp Shares  18,328
4.    Paintings  38,030
5.    Wine Collection  10,000
6.    Boat  7,000
7.    Rings  8,450
8.    Husband’s superannuation  38,800
9.    P property  305,000
less mortgage  42,000               263,000
10. Wife’s shares  25,340
11. Wife’s cash account  7,775
12. Wife’s car  26,550
13. Addbacks – Husband
NAB shares sold  9,136
Nissan proceeds  22,000                 31,136
TOTAL  $1,513,624

CONTRIBUTION

Turning to the question of contribution.
At the commencement of the relationship in the middle of 1998, the wife owned the property at P. She had bought it in 1995 for $115,000 but with a mortgage loan encumbering it for $92,000. I am satisfied that at the commencement of the relationship, her equity in the property was limited.
The husband owned the property at S. Single expert Mr W, who is a certified practising valuer, said that in June 1998, the S property was valued at $615,000. Mr W was not called to give evidence and his valuation of the property of June 1998 was not challenged. According to the husband, when cohabitation commenced his mortgage was approximately $112,000. In addition to the home, the husband was also the owner of furniture, paintings and other chattels. He also owned a boat, a motor car and a sapphire and a diamond which subsequently became the wedding and engagement rings for the wife. In addition, he had a small amount of superannuation.
What can be seen from that snapshot of the parties’ financial lives as at the commencement of cohabitation was that there was a significant financial disparity favouring the husband.
Part of the husband’s case was that prior to the commencement of the relationship, he had paid an interior designer to assist in the selection and placement of some furniture, prints and paintings. In other words, the house was fully furnished and decorated. He said the wife was present at meetings with the interior designer. For her part however, the wife said that when she moved into the property, it was just a shell and that it had not been decorated. She said there was very little furniture in the house. She was cross-examined about all of this and said that not all of the windows had furnishings and she remembered that the downstairs sitting room and study were not curtained. She recalled quite a substantial amount of window furnishing was completed after she moved in although she acknowledged that the husband paid for those. She was involved in assisting to choose the colour and the style and she recalled obtaining furniture.
Having regard to the disparity of contribution to which I have earlier referred, this evidence became largely irrelevant. However, the husband called the interior designer with whom he had worked to establish the state of the home at the time of cohabitation. Ms W is a self-employed interior designer and she said that she met the husband in August 1998. She gave evidence about appointments with the husband in September 1998 and as late as October 1998 to monitor the hanging of prints and mirrors. She said she was able to say that the home had been painted throughout and all floor coverings and window furnishings were in place. In other words, it was fully furnished.
This evidence has little weight in my determination because of the general discretion I have to assess the respective contributions of the parties. I am quite satisfied that Ms W had appointments with the husband and did not meet the wife until after her work was completed. However, it is clear from the evidence of the husband and the wife that there is a conflict between them generally and Ms W. If the diary entries of Ms W are correct, her involvement with the husband was subsequent to the commencement of the relationship. However, not much seems to turn on that. Most importantly, Ms W conceded that she was not able to say what condition the house was in June or July of 1998 when the parties commenced cohabitation. Insofar as the wife alleges that she contributed to the decoration of the house, after hearing the evidence, I find that in August 1998 the house was modestly furnished.
All of that evidence simply reinforces in my mind that there was a significant disparity between the parties’ initial contributions.

Financial contribution during the relationship

At cohabitation, the wife moved into the S home and thereafter, the P property was rented to tenants. That rent paid the interest payments and principal reduction on her mortgage and I am satisfied that at the time of separation, that mortgage was down to $42,000 or thereabouts. Whilst the husband made no direct financial contribution towards the P property, by the provision of the home at S and the general support for the wife financially, I find that he has made an indirect contribution to the P property, culminating in the equity that the parties have today.
Equally importantly, although the husband stressed that the wife made no financial contribution towards the S home, her role as a homemaker and parent must been seen as a contribution towards the conservation and improvement of the S home.
There would seem to be little change in the other assets that the husband owned at the time of cohabitation including the wine collection, boat and furnishings.
To highlight her contribution during the marriage, the wife pointed to the fact that the parties shared in a lifestyle, particularly around their love of triathalon competition. At paragraph 38 of the wife’s affidavit, she referred to the fact that she and the husband travelled to New Zealand in or about March 1999 to compete. She said that she paid for the husband’s airfare through the use of the frequent flyer points of her sponsor. The husband disputed that saying that he purchased the tickets on 8 February 1999 and further purchased a ticket and accommodation for the wife’s mother in March of 1999. Those dates and amounts came from a record of the Diners Club International expenditure (see Exhibit H3). When the exhibit was put to the wife in cross-examination, she conceded that the husband paid but she was not prepared to concede that what she had said in her affidavit was wrong. Her view was that the sponsor had in fact used his “points” to get “an upgrade” of the travel. On such a simple issue, it would have been better for the wife to have made a concession and, more importantly, given a more elaborate explanation in her affidavit but she failed to do either. That reflected poorly on her credit.
Having identified the various contributions, it is important to assess their importance.
The pool of assets reflects largely what the parties brought in separately at the commencement of their relationship. I have earlier remarked about the stark contrast. Mathematically, it can be seen that from a financial contribution perspective, the husband has made an overwhelming greater contribution than the wife. The duration of this relationship was modest. The increased value in the matrimonial home appears largely to have occurred as a result of market forces. The same must be said of the P property. During the relationship, as I have found, the wife undertook more of the non-financial matters such as the parenting and domestic management but not to such an extent that I could find that it was overwhelming in her favour. I am quite satisfied that the husband did contribute in a significant way in respect of non-financial matters. The parties enjoyed their sporting life and each contributed to that in their own way but it must be said that during that period of time, the husband was the major financial contributor. He earned a significant income and the parties jointly enjoyed the fruits of it.
Although the wife brought in the P property to the marriage, it was rented throughout. The funds derived from the rent went to reduce the mortgage to what I have allowed in the pool of assets. The husband made an indirect contribution to that property by his provision of the matrimonial home and the earnings that he received.
Having regard to the duration of the relationship and the clear picture that I have about what each party had at the start and contributed during the relationship, I find that the wife’s contribution was 30 per cent.

Section 75(2)

In respect of the third step of taking into account the matters under s 75(2) of the Act, the Act says that a court is obliged to contemplate all of the matters as they apply to each party, of the following:
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
There are no matters concerning the parties’ respective ages or states of health that should affect my decision.
I have taken into account the income of each party.
The husband clearly has a good income and the benefit of commissions based on productivity. The wife has tertiary qualifications but has not worked in her profession in a serious way since the birth of the child. This issue was tested at some length particularly as the husband alleged that the wife was working for her sponsor and partner and that she was paid in cash. None of the benefits from the sponsorship appear in any taxation return and as it transpired, they were not claimed as a deduction for business purposes by Mr H. The whole matter is very confusing. I do find however that the relationship between the wife and Mr H is such that he provides considerable benefits to the wife both in respect of her living expenses and her sporting achievements. This support for the wife has saved her considerable amounts since separation and there is no reason on the evidence to draw any other conclusion other than that they will continue in the future.
The wife’s income position was also a matter of conjecture and that affects my view about her earning capacity for the future. Much was made of the fact that the wife sought in early correspondence to say that there were no taxation returns because she did not earn enough to lodge them. However, in evidence, she asserted that the husband had stolen them. The inconsistency was apparent but when drawn to the wife’s attention, she said that the correspondence was wrong. I inferred from this comment that it was another example of where her instructions had been misinterpreted. It was hard to believe the wife in respect of this issue and that affects my view about just what sort of work she is doing and more importantly, can do in the future.
Having said that, whilst there is a clear disparity between the parties’ income at this stage, the wife’s earning capacity in the foreseeable future should improve. With the child at school, there is no reason why she cannot either retrain or obtain employment at a much greater level than she has chosen to date.
I am satisfied that the injury she suffered in 1988 whilst participating in her chosen sport does affect her ability precluding her from spend lengthy times on such things as computers, I do not accept that as a basis for not seeking work or endeavouring to find a lateral way around the problem.
Economically therefore I find that the husband is the stronger of the parties but not overwhelming so.
Neither party has the responsibility to support any other person.
I have already found that I am satisfied that the wife does not cohabit with Mr H but I find that there is such a relationship between them but it may benefit the wife in future, notwithstanding I have found that I am not yet convinced that the commitment is a strong one. Mr H appears to have been generous to the wife without that depth of commitment and it seems that there is no reason why I should not take into account the potential for that to be of benefit to the wife in the future.
During the hearing as I have mentioned, the wife undertook by notation on orders that she would be responsible for school fees for the child. Having regard to the fact that I am obliged to determine this matter on the basis of what is just and equitable between the parties, I do not see that I can take into account the fact that the wife has the obligation to pay those private school fees in the face of an agreement between the parties.
I accept the fact that the wife desires to continue her role as a parent as she has done in the past but there will now be assistance from the husband in terms of time.
I accept that the wife is currently eligible for a Commonwealth pension benefit in the form of family tax benefit entitlements but in this case, that does affect my determination.
I appreciate that there is a modest pool in this case and that is understandable having regard to the relatively short duration of the marriage.
I have already expressed concern abut the husband’s attitude towards the payment of child support, particularly having regard to the child attending a private school. I have expressed the view that the parties should try and reach agreement about the financial contribution towards the child’s upbringing regardless of the artificiality of the formula. The husband has indicated a willingness to provide financial support but it is the depth about which I am concerned. I have taken into account in my subjective judgment the attitude of the husband to simply paying what the law obliges him to pay.
Accordingly, I propose to make a further adjustment of 5 per cent in favour of the wife.

The division of the pool of $1,513,624

Therefore, the wife is entitled to $529,768 of which she already has:
The P property  $263,000
Her shares  25,340
Her cash account  7,775
Her car     26,550
$322,665
Mathematically therefore the husband needs to pay to the wife $207,103 which I round up to $210,000.
I say that the adjustments that I have just made are just and equitable to both parties.
It is ultimately the end result which must be just and equitable for the purposes of s 79 of the Act. I am very conscious that in a small pool particularly with add-backs included, the higher the percentage in favour of one party, the greater the gap between them. I have to be satisfied that what they ultimately receive is just and equitable and not the percentages.
I am satisfied that the order I propose to make is just and equitable in all of the circumstances.

I certify that the preceding Two Hundred and Fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 1 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MASON & MCGREGOR

[2007] FamCA 119

1 March 2007

Key Legal Topics

Areas of Law

Family Law

Property Law

Contract Law