Menzies and Menzies

[2018] FCCA 2050

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENZIES & MENZIES [2018] FCCA 2050

Catchwords:
FAMILY LAW – Parenting and property dispute – parents’ proposal for the children’s spend time regime influenced by financial concerns – family report 2018 recommending equal time – children equally attached to both parents – concerns about possible alienation of oldest children by father – alienation of other children not likely – week about time ordered – mother’s contribution to property pool slightly greater over time than father’s – father’s future needs slightly greater – equal property division ordered.

Legislation:

Family law Act 1975

Cases cited:

Goode & Goode (2006) FamCA 1346

Stanford & Stanford (2012) 247 CLR 108

Applicant: MR MENZIES

Respondent: MS MENZIES

File Number: DGC 3182 of 2017

Judgment of: Judge Burchardt

Hearing dates: 25 & 26 June 2018

Date of Last Submission: 26 June 2018

Delivered at: Dandenong

Delivered on: 9 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Carne

Solicitors for the Applicant: Wheeler Family Law

Counsel for the Respondent: Ms Paul

Solicitors for the Respondent: Neal Collin Lawyers

ORDERS

Parenting

1. That the parties have equal shared parental responsibility for the children [X] born 2011, [Y] born 2011 and [Z] born 2011 (“the children”).

2. That the children shall live with each of the parties on a week about basis with changeover to occur each Friday at the conclusion of school or 3:00 pm if a non-school day unless otherwise agreed in writing, with the children to commence their week with the Mother on 10 August 2018.

3. That the children shall spend additional time with the Mother as follows during which any time they would otherwise be spending with the Father shall be suspended:

   (a)On Mother’s Day from 10:00 am until 5:00 pm.

   (b)If the children are not already in the Mother’s care on the Mother’s birthday, then on the Mother’s birthday as follows:

   (i)If it is a school day, from the conclusion of school until 7:30pm;

   (ii)    If it is a non-school day, from 12:00 pm until 7:30 pm.

   (c)If the children are not already on the Mother’s care on the children’s birthdays, then on the children’s birthdays as follows (with the children all together):

   (i)If it is a school day, from the conclusion of school until 6:00 pm;

   (ii)    If it is a non-school day, from 12:00 pm until 5:00 pm.

   (d)At Easter:

   (i)In 2019, from 5:00 pm on Easter Saturday until 10:00 am on Easter Monday and each alternate year thereafter;

   (ii)In 2020, from 10:00 am on Good Friday until 5:00 pm on Easter Saturday and each alternate year thereafter.

   (e)At Christmas:

   (i)In 2019, from 3:00 pm on Christmas Day until 5:00 pm on Boxing Day and each alternate year thereafter;

   (ii)In 2018, from 10:00 am on Christmas Eve until 3:00 pm on Christmas Day and each alternate year thereafter.

   (f)If the children are not already in the Mother’s care, by telephone each Sunday and Tuesday from 6:30 pm to 7:00 pm and each Thursday from 7:30 pm to 8:00 pm with the Mother to initiate the call.

   (g)Such other times as may be agreed in writing.

4. That the children shall spend additional time with the Father as follows during which any time they would otherwise be spending with the Mother shall be suspended:

   (a)On Father’s Day from 10:00 am until 5:00 pm.

   (b)If the children are not already in the Father’s care on the Father’s birthday, then on the Father’s birthday as follows:

   (i)If it is a school day, from the conclusion of school until 7:30pm;

   (ii)    If it is a non-school day, from 12:00 pm until 7:30 pm.

   (c)If the children are not already in the Father’s care on the children’s birthdays, then on the children’s birthdays as follows (with the children all together):

   (i)If it is a school day, from the conclusion of school until 6:00pm;

   (ii)    If it is a non-school day, from 12:00 pm until 5:00 pm.

   (d)At Easter:

   (i)In 2019, from 10:00 am on Good Friday until 5:00 pm on Easter Saturday and each alternate year thereafter;

   (ii)In 2020, from 5:00 pm on Easter Saturday until 10:00 am on Easter Monday and each alternate year thereafter.

   (e)At Christmas:

   (i)In 2019, from 10:00 am on Christmas Eve until 3:00 pm on Christmas Day and each alternate year thereafter;

   (ii)In 2018, from 3:00 pm on Christmas Day until 5:00 pm on Boxing Day and each alternate year thereafter.

   (f)If the children are not already in the Father’s care, by telephone each Sunday and Tuesday from 6:30 pm to 7:00 pm and each Thursday from 7:30 pm to 8:00 pm with the Father to initiate the call.

   (g)Such other times as may be agreed in writing.

5. That unless otherwise agreed in writing all non-school changeovers shall occur at the Mother’s residence at the commencement of the children’s time with the Mother and at the Father’s residence at the commencement of the children’s time with the Father.

6. That the parties, their servants and agents be and are hereby restrained from:

   (a)Denigrating the other party or any other member of their household to or in the presence of the children or permitting any other person to do so; and

   (b)With respect to the Father, and without his admitting the necessity for same, consuming alcohol to excess or being under the influence of alcohol (defined as a BAC in excess of 0.05) twenty-four (24) hours prior to and during all times that the children are in his care.

7. That both parties be authorised to obtain at their own expense all school newsletters, photographs and attend all school functions including parent teacher interviews, concerts, sporting events and any other school activity or extra-curricular activity that parents would usually attend.

8. That the parties are to at all times:

   (a)Keep each other advised of their current residential address and landline and/or mobile telephone number with any change in these details to be advised in writing within seven (7) days of the change;

   (b)Keep each other informed with respect to any proposed travel plans with the children (giving 14 days prior written notice for interstate travel and 42 days prior written notice for international travel) and provide a copy of the itinerary and relevant contact details for any international travel;

   (c)Advise the other party immediately in the event that the children suffer any serious illness or injury;

   (d)Authorize any medical practitioner upon whom the children may attend from time to time, to communicate with the other party in respect to the children’s medical condition and/or requirements.

9. That there be the usual orders pursuant to sections 65DA(2) and 62B of the Family Law Act 1975.

Property

1. That within ninety (90) days of the date of these Orders (“the due date”):

   (a)The Respondent Wife pay the Applicant Husband the sum of $164,750.00 (“the payment”);

   (b)Contemporaneously with the payment, the Applicant Husband do all acts and things and sign all documents as may be required to cause Caveat number 1 and 2 on the property situated at Property A, in the State of Victoria, and being the whole of the land more particularly described in the Victorian Certificate of Title Volume (“the real property”) to be withdrawn; and

   (c)The Respondent Wife indemnify the Applicant Husband against all payments and liability pursuant to the mortgage (“the mortgage”), as well as any rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

2. That, in the event that the whole payment is not made by the due date, the parties do all acts and things and sign all documents as may be required to forthwith sell the real property and the proceeds be applied in the following order and priority:

   (a)To pay all fees and expenses associated with the sale;

   (b)To discharge the mortgage and any other encumbrance affecting the real property;

   (c)So much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law rules per annum adjusted monthly from the due date to the Applicant Husband; and

   (d)The balance to the Respondent Wife

3. That, pending the transfer or sale of the real property pursuant to paragraphs 10 and 11 above:

   (a)The Respondent Wife have the sole right to occupy the real property and that during such right of occupation the Respondent Wife pay all rates and taxes and all mortgage instalments and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these Orders; and

   (c)Neither party further encumber the real property without the written consent of the other, save for the purpose of the Wife arranging payment pursuant to paragraph 10(a) of these orders.

4. That each party have liberty to apply in relation to the sale of the real property.

5. That there be a split of the Respondent Wife’s superannuation interest to the Applicant Husband and:

   (a)For the purpose of this Order:

   (i)The Respondent Ms Menzies born 1977 is the member spouse;

   (ii)The Applicant Mr Menzies born 1974 is the non-member spouse;

   (iii)Super Fund C is referred to as the Super Fund.

   (b)Having been accorded procedural fairness, this Order is binding on the trustee of the Super Fund.

   (c)The Court allocates, as required by section 90MT(4) of the Family Law Act 1975, a base amount of $17,351.00 to the Applicant out of the Respondent’s interest in the Super Fund.

   (d)In accordance with section 90MT(1)(a) of the Family Law Act 1975:

   (i)The Applicant (or the Applicant’s administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (ii)The entitlement of the Respondent in the Super Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) is correspondingly reduced by force of this Order.

   (e)This Order has effect from the operative time.

6. That the operative time for the purpose of this Order is the fourth business day after the date on which a sealed copy of this Order is served on the trustee of the Super Fund.

7. That the trustee of the Super Fund and the parties in accordance with the obligations set out in the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the non-member spouse in accordance with this Order.

8. That, in the event that the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant each of the parties shall do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

9. That, if either party refuses or neglects to sign or execute and return a document in compliance with the provisions of these orders within seven days of a written request to do so then the Registrar or Deputy Registrar of the Dandenong Registry of the Federal Circuit Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

10. That, unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, household items and other like chattels in the real property being deemed to be in the possession of the Respondent Wife), save that the Applicant Husband shall return to the Respondent Wife the brush cutter within thirty (30) days of these orders at an agreed date and time;

    (b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party;

    (c)Insurance policies remain the sole property of the owner named therein;

    (d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

    (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS NOTED that publication of this judgment under the pseudonym Menzies & Menzies is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3182 of 2017

MR MENZIES

Applicant

And

MS MENZIES

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property and parenting dispute between two strong-willed people who both have a pronounced tendency to see themselves as victims.  The applicant husband seeks that the property pool be adjusted as to 60/40 in his favour with an equalisation of superannuation.  The respondent wife seeks that she receives 60 per cent of the property and that superannuation not be equalised. 

2. Insofar as we are concerned with children, the father seeks that there be an equal week about regime and the mother seeks that the current orders of the court which provide for a 10/4 arrangement in her favour be maintained.

3. For the reasons that follow, I am going to order that there be an equal division of the parties’ property and that the children live with their parents on a week about basis. 

Agreed or uncontroversial matters

1. The father was born on 1974 and the mother was born on 1977.  They met and embarked upon a casual relationship in 1997, and separated well before the birth of their child Mr J, born on 1997. 

2. The mother brought Mr J up as a sole parent until at least 2001, with Mr J spending very little, if any, time with his father and the father’s extended family. 

3. In 2001, the parties got back together again, although the mother says this was still a relatively casual relationship until cohabitation on any view commenced in 2004.  Whatever interruptions there were in the relationship (and the mother asserts a number of short separations and reconciliations), they married in 2010.  Thereafter, their daughter [X] was born on 2011 and twins [Y] and [Z] were born on 2011. 

4. The mother took maternity leave but returned to work relatively quickly.  She has been employed throughout all the latter part of the relationship (2001 to 2017) as a (occupation omitted).  The father worked as a (occupation omitted) and then for a (employer omitted) where his mother also worked.

5. Separation took place under one roof in July 2017 and, on 26 July 2017, the father moved out of the matrimonial home to the home of his parents who lived in the next door property.  The father continued to have access to the home until the mother changed the locks in September 2017.  This followed the abstraction by the father from the matrimonial home of a brush cutter (whipper snipper), the three younger children’s original birth certificates and some photographs. 

6. Since the time of separation, Mr J has lived with his father and has been wholly estranged from his mother. 

7. At the commencement of the relationship, the parties had no, or no significant, superannuation or other possessions, save that the mother owed a share of a property with other family members.  There is some dispute as to how much that was worth, but the mother’s family have given unchallenged evidence that she was bought out for $34,000 in 2005 (see affidavit of Ms D sworn 6 June 2018 at paragraph 16).

8. Those funds were applied, at least in part, towards the purchase of the former matrimonial home. 

The parties’ affidavits

1. Given the ultimately relatively modest size of the property pool, the parties have filed all too copious affidavit material.  I have regard to what they have said in those affidavits which I have of course read carefully.  In the particular circumstances of the matter, however, it is more appropriate to concentrate on what the parties actually said in their evidence before the court.  Much of what the parties have had to say in their affidavits is covered in the agreed matters above.  I would note that there is, to my mind, a somewhat carping quality to the affidavits of both of the parties who are keenly conscious of their financial interests.  It should be noted that the mother’s affidavit material is replete with assertions that the husband is a gambling addict, an alcohol addict and was violent throughout the relationship.  The father’s affidavit material counters with assertions that the mother was domineering and controlling, although the major exemplar given in his affidavits, somewhat curiously, is of excessive sexual demands made by the wife.  This aspect of the material was not, mercifully, explored in oral evidence. 

The family report

1. Ms C’s family report dated 1 April 2018 was tendered when she gave evidence as exhibit C1.  Ms C noted the extant time regime where the children spent time with the father each alternate weekend from conclusion of school on Friday until return to school on Monday and in the alternate week from conclusion of school Wednesday until return to school Thursday.  She noted at paragraph 2 the mother’s hours of work from 8.15am till 4.30 pm with the children dropped off to before school care and collected after school.  Ms C noted the fact that the father and Mr J live in a rented property in Suburb K.  The father was then working two to three days per week from 7 am until 3.30 or 4 pm. 

2. Having noted the length of the relationship, Ms C further noted, at paragraph 5, the allegation of the father that there had been a verbal agreement that post-separation the children would live between them in an equal shared care arrangement but that the mother did not comply (paragraph 5).  I note that, paragraph 8, Ms C observed “both parties alleged the other was primarily financially motivated due to the property matters currently on foot.”

3. Ms C noted the mother’s allegations that the father had been emotionally and financially violent during the relationship, but noted there were no records from Victoria Police or Health Clinic that supported her allegations (paragraph 13), nor were there any reports from the Department of Health and Human Services (paragraph 14).

4. Ms C noted the father’s denial of having any alcohol problem and noted that he said his gambling was only social.  She traversed, at paragraph 25, an incident where he had had an argument with Mr J, but I note that Mr J is, in any event, living by his own choice with his father and has done since separation. 

5. Ms C noted the father’s criticism of the mother’s employment which he described as neglectful of the children by placing them in before and after school care (paragraph 26). 

6. At paragraphs 36 - 37, Ms C writes:

   When Ms Menzies was asked why Mr J was living with his father and not with her, she said he felt he could help his father more than he could help her.  When asked about why Mr J might be angry with her she said she does not know what Mr Menzies has been saying to him but she believed he would be fuelling Mr J’s anger.  She said Mr J has always longed for his father’s attention because he was not there in Mr J’s life for the first few years. 

   Ms Menzies said she believed that Mr Menzies is deliberately reducing his earning capacity to make a claim for support from her.  She said she believed he is capable of earing at least $80,000 per year after she spoke with a professional (occupation omitted) who indicated that would be reasonable with a company car.  She said she believe he avoids full employment. 

1. In interview with Mr J, Ms C reported that Mr J was angry with the mother for reneging on an agreement for an equal shared care agreement to which he said he had been privy (paragraph 44).  Mr J asserted that his father’s consumption of alcohol was modest and denied allegations of gambling (paragraphs 45 to 46).  At paragraph 47, Ms C reported that Mr J

   indicated he had given his mother an ultimatum about having a relationship with him and he believed she had chosen to apply to have the “house and children” rather than a relationship with him.

2. [X] was interviewed and could say some good things about both her parents and some things that were not so good (paragraph 50).  {X] volunteered she thought it would be best if it was week about between her parents (paragraph 52).

3. [Z] thought her mother would be most upset if there was a change for the children to live with their father primarily but that no one would be upset if the arrangements remained as they were (paragraphs 58 to 59).

4. [Y] said that if the children lived with their father primarily, their mother would be sad but she would be happy (paragraph 64) and that if it was week about no one would be sad (paragraph 65).

5. Ms C noticed that the children’s sibling relationships were strong (including with Mr J), and they had strong relationships with the maternal grandmother and maternal aunt and regular contact with them (paragraph 67).

6. Observation with the parents and Mr J and the maternal grandmother and maternal aunt were completely unremarkable.  At paragraphs 73 - 75, under the heading Evaluation, Ms C recorded:

   It appeared the parties were both focused on what they believed they contributed to the family and were resentful towards each other because of different values.  They both appeared to be making a case for the children to live with them based on being the primary or better parent. 

   Mr Menzies appeared somewhat focused on the children to the extent he originally proposed to Ms Menzies that they parent on an equal shared basis.  However his current proposal appeared to be based on retribution for Ms Menzies allegedly reneging on their original agreement than what might be the most supportive of the children and their wellbeing.

   Mr Menzies denied having a gambling addition or an alcohol use problem.  While Ms Menzies said she had evidence of such a problem in that she had bank statements suggesting he was a problem gambler, it appeared she also had a different view of his overall approach to finances and responsibility taking for financial provision.  That might simply indicate a difference in values.  Whether the difference was merely one of degree along a reasonably healthy continuum of financial thriftiness to financial spending and/or a continuum of motivation to achieve in employment to less motivation to achieve in employment or is indeed problem gambling could only be assessed by professional gambling assessment.

7. At paragraph 76, Ms C continued:

   Mr Menzies denied heavy use of alcohol and also family violence, however he did not deny there were arguments.  There was no supporting evidence of Mr Menzies drinking alcohol to excess or of family violence.  It appeared the risk to the children of heavy alcohol use by Mr Menzies is low, but it would benefit the children if he refrains from consuming any alcohol while they are in his care.

8. At paragraph 77, Ms C noted the criticism by Mr Menzies of the mother’s employment and his assertion that this was an indicator that she neglected the children.  He did not understand that there was no risk to the children from being placed in before and after school care.  Ms C noted that the father might have overstated his care of the children given his original agreement to an equal shared care arrangement.  He seemed to regard good parents as not being fully employed.

9. At paragraph 78, Ms C wrote:

   Ms Menzies impressed as somewhat focused on the children insofar as she provides a stable and reasonable income and has retained the children in their home and at their schools.  The reason she said she reneged on the parties’ original verbal agreement for equal shared care turned on her belief that Mr Menzies has a gambling problem.  She did not provide information there was any difference in his level of alcohol use which would make her reconsider that original agreement.  It is assumed therefore that she considered his alcohol use not to be a significant risk to the children immediately post-separation.

10. Having noted the children’s views and their close relationships, including with Mr J, Ms C continued, at paragraph 84 – 85 as following:

    Property considerations are an important aspect of supporting the children for both parties.  But the question of with whom they live is based more on whether they are developmentally old enough and have a strong enough relationship with both parties to benefit from living in an equal shared care arrangement or whether they have a stronger relationship with one or the other party and should live primarily with one party. 

    There was no evidence suggesting the children had a stronger relationship with either party.  The twins have adjusted to school being in Year 1 and would benefit from living week about between the parties.  That would allow them to settle into each home without needing to make too many changes.  [X] is old enough and perhaps focused on being removed from the conflict and would benefit from living week about with the parties.  The children would benefit from the parties attending a parenting after separation course if they have not already done so. 

11. Ms C went on to note that the father’s employment did not lend itself to week about and that the mother’s employment fitted well with the regime of the children’s school hours and needs.  She accordingly recommended (paragraph 87) that the children would benefit from remaining primarily in their mother’s care but noted, at paragraph 88,

    If Mr Menzies’ hours of work changed or he could provide a suitable arrangement for the care of the children before school, the arrangement could become equal shared care.

12. The report noted that the parents were agreed as to equal shared parental responsibility. 

13. The report went on to recommend the children live with the mother, that the current spend time regime remain in place, that the father be restrained from consuming alcohol when the children spend time with him and that the parties be restrained from discussing adult matters, including Family Court matters, with the children.

The evidence given in court

1. What follows is taken from my notes.  It is self-evidently not a transcript but records aspects of the evidence I found significant.

2. It should be noted that counsel for the father informed the court in opening that the parties were agreed as to equal shared parental responsibility, an equal share of holidays, changeovers and various other matters. 

3. The father adopted his affidavit, Financial Statement and affidavit in reply as true and correct.

4. Under cross-examination, the father confirmed that there are four children.  Mr J is 20 and there are the three girls.  [X] is deaf in her right ear but is doing well and has good school reports.  The twins are in grade 1 and are doing well.  [Y]’s asthma can still be intense and changes according to the season. 

5. The father confirmed that he had worked on and off over the years and started with (employer omitted) in (omitted) 2018.  He gave up his prior (omitted) job which he had been in since 2008.  He had a permanent Sunday shift.  He had not chosen not to work more.  He had done hundreds of night shifts.  The mother looked after the children on these occasions. 

6. Separation under one roof was from June to July 2017, then he moved next door.  The mother’s father died in 2017 and they were close.  In September 2017, he rented with Mr J in Suburb K which is six minutes from the children’s school.  They pay $1868 per month rent.  Mr J is doing a (omitted) apprenticeship and starts work at 8 o’clock, finishing at 3.30 pm.  He has a girlfriend.  The father pays a bit more than half the expenses of the household.  His salary is increasing.  He starts between 7 and 7.30am and usually within 30 minutes’ drive from where he lives.  It has all been local so far.  More recently, he has been on permanent sites in Suburb L and Suburb M, finishing between 3 and 4 pm.  If there was a week about arrangement, he would undertake five days of work in the off week.  He is not a qualified (occupation omitted) but still undertakes some such work.  He is not paid cash in hand.  He was certain that this was the case.  He admitted helping a friend of the mother’s and her aunt but said he made he made no money from those jobs.  His own aunt had loaned him $22,000.  A small portion of this was for decking and pergola work for the aunt for which he was not paid.  He did not get lots of cash for doing (omitted) jobs and could earn between $50 and $60,000 full-time as a (occupation omitted).  The $15,000 he was paid by Ms G included the cost of materials.  He is undertaking a (course omitted) and will finish in one and a half years.  He is not working as a (occupation omitted) at the moment.

7. The father conceded that following Mr J’s birth in 1997 he did not see him till 2001.  He was aware the mother had a share of property at Property B when the relationship commenced.  They got back together in 2001.  When it was put to him that until 2004 they still had separate bedrooms he denied this.  He also said he looked after Mr J during this period.  He denied that the mother had been paid $30,000 for her share of the unit in Property B in 2005.  When it was put to him that this sum was applied to the deposit for the matrimonial home, the father said that she got the loan and got the first home grant.  The mother started as a (occupation omitted) in 2005.  The twins were three months premature at 27 weeks and the mother had to express feed.  Both parents were at the hospital every day and the mother went back to work in 2013.  The father denied that this was because the family had financial difficulties and said there were no problems with the family’s finance.  He conceded the mother lives within walking distance of the school.  He admitted that he was originally critical of the children being placed in before and after school care but this was because they could have been with him.  The mother is now (occupation omitted).  The father disagrees the children are collected between 4 and 5 pm.  He said he quit his job to collect the children.

8. The father was cross-examined about his Motor Vehicle 1.  He conceded that $38,000 was redrawn from the mortgage and there was also a trade-in of some two to three thousand dollars.  He said he put money into the mortgage to repay his redraw until separation.  I interpolate and say it seems clear he paid approximately $4000 back.  He retained the vehicle. 

9. The father denied there were arguments about gambling or alcohol use.  He enjoys a glass of wine or beer but does not gamble each week.  He spends $50 to $100 when he does.  Sometimes it is every second week and sometimes not at all.  There were no discussions about gambling and drinking was never an issue.  These were not the reasons the relationship broke down.  There was a very challenging time when they had three young children.  It was a horrific time.  He did not however recall mortgage stress in 2012 and had not seen a letter from the bank put to him before.  He conceded it was a tough time financially and it was agreed that the wife should have to go back to work.  He said the mother did not do all the housework and an assertion to this effect was an absurd lie.  She did not get the children ready during the week.  She and Mr J looked after the children.  Both parents helped with the housework.  He said he was at school twice per day and worked Sunday.  He also mostly worked Saturdays.  He denied an excessive attendance at cricket over the six to seven years they were together.  He conceded that the mother paid the mortgage, the utilities and the home and contents insurance together with school fees and private health.  He said he bought food and paid for all the going out and toys for the children.  He said that the wife had paid the mortgage since separation.  He had offered twice to pay but she had refused.  He is not paying child support as he has been assessed as not liable. 

10. The father said Mr J had not spoken to the mother since separation.  He is aware of the proceedings and is critical of his mother.  He denied speaking to Mr J about the proceedings and said Mr J had not read the affidavits.  He says he had made efforts on several fronts and was not alienating Mr J from his mother.  He was aware that the dog was not well in April.  The mother sent them a text message together.  He conceded sending a message back which included the phrased “weaselled your way back into Mr J’s life.”  He has not spoken to the girls about the proceeding and they would not be aware that he wants a week about regime.  He would not discuss money with a seven year old and did not tell [X] he wanted her there seven days per week.  He denied that his position was about retribution.  He said, “We get along fine.”  He denied violence in the past and denied that it was true that he had abused alcohol and denied gambling problems.  He wanted the children to be with him and not in before and after care.  He conceded that the mother was a good mother.  He said he had friends and family to assist with holidays.  He proposes that his mother would get the children to school.  She works from 1 pm till 9 pm.  His father is retired and can collect the children after school.  His mother has stayed over and taken the children to school plenty of times.  He is now earning $678 per week and can work seven days.  There have been no problems with the orders since last year. 

11. The father was cross-examined after lunch as to Christmas Eve but this is now of no moment as the parties have resolved special days by agreement. 

12. The father conceded that he had taken a brush cutter from the family home.  It was a present to him.  He had taken the children’s birth certificates.  He did not agree his relationship with the mother was unhealthy and he denied being controlling or violent.  He denied being intoxicated and headbutting the mother in 2004.  She had not then changed the locks and he did not beg for reinstatement.  He had not contemplated suicide in 2006 and had not assaulted the mother in 2011.  When cross-examined about his argument with Mr J, the father said they had both had a couple of drinks.  They were not attacking each other but were arguing heatedly.  He denied telling the mother in July 2017, “If you’re a good girl you’ll get these back.”  He had not told the mother that [Z] could live with her permanently because she wanted to support (football team) instead of (football team).  He denied belittling the mother and denied all comments put against him. 

13. He had read the affidavit of Ms H.  He said it was not true and offensive.  He had texted her husband.  He thought that the husband would go on affidavit to tell the truth.

14. He said his mother has Crohn’s Disease.  She is on affidavit.  He has always been close with his mother.

15. In re-examination, the father confirmed that he would like to work full-time.  This would include weeks he has the children.  His parents would assist with out of hours difficulties.

The evidence of Ms B, the paternal grandmother

1. Ms B adopted her affidavit as true and correct.  Under cross-examination, she confirmed that she has Crohn’s Disease in remission.  She has been fine for some years.  She works Wednesdays through to alternate Sundays, being 72 hours per fortnight.  She is 63 years old and finishes work at 9.30 pm.  She lives six to seven minutes from her son.  She can get to the father’s home by 6.30am.  Her husband’s health is fine.  She will help the father with the children.  She has no contact with the children while they are in the mother’s care.  She conceded the mother is a good mother.  The children seem to be doing well.  She has read the mother’s affidavit.  She did not recall her son being suicidal at any time.  When taxed with the incident at the hospital when the children were young when the mother alleged she was pushed over by the father, Ms B denied that this took place.  She was there at the hospital at the time.  She said she would encourage Mr J to make contact with his mother and expressed an entirely believable regret at the current estrangement.

The evidence of Mr V

1. Mr V works for (employer omitted) and is the father’s manager.  He adopted his affidavit as true and correct.

2. Mr V detailed the father’s work.  He said that they try and keep workers as close as they can to their home.  The father would be likely to have 30 to 40 minutes’ travel, possibly 45 minutes.  (employer omitted) get work all over Melbourne.  Work starts at 7 to 7.30am although some sites are a little later.  The father could get work every day if he wanted.  It is up to him when he works. 

The evidence of the mother

1. Ms Menzies adopted her affidavits as true and correct.  She tendered as exhibit R1 correspondence from the Bank about mortgage stress in 2012.  She said she had had a conversation with the father about this.  She said the father loves his children. 

2. Under cross-examination she confirmed that the father loves his children.  He goes on outings with the girls and to the movies.  She has agreed to equal shared parental responsibility.  She said sometimes the father cooperates and sometimes not.  School has been agreed so far.  There are treatment plans in place for the children’s problems.  She is aware that the father wants equal time but it is currently 10/4 since October 2017, which was agreed.  This has gone very well.  Letters and emails from the school are positive. 

3. The mother conceded she had originally agreed equal time but said this was under duress.  The father was still living in the house and was drinking and gambling.  The father said if she continued to ask him he would start gambling.  He was coming back late on Sundays after work.  She ended the agreement for equal time because the father had a gambling problem.  The girls have now been nine and a half months in a good routine.  The children are more settled this year and would not adapt to further change to more time with the father.  She was concerned the father did not spend money on his children.  She said she provided a healthy routine.  The father consented to 10/4 and orders not to drink to excess while the children are in his care.  She wanted an order that he consume no alcohol while the children were in his care.  She said her hours suited the children better.  She has more holidays, 13 weeks, than the children do.  She has 130 days of sick leave and can take days off.  She had agreed to share holidays. 

4. When cross-examined to the effect that bank statements did not show problems with gambling she disagreed.  She said she had seen him take out $100 four times at a hotel.  She herself very seldom drinks and she quit smoking one and a half months ago.  The mother was concerned to point out that the husband had taken rent money in 2005 and gambled it.  She said the father was financially frustrated last year and this might start him gambling again. 

5. The mother said she has no contact with Mr J at the moment.  He will not contact her.  She asked to speak to Mr J before he moved out.  He had sent her a message about 6 September 2017 and said he would not see her again.  She complained that the grandmother Ms B had not encouraged Mr J to speak to her the previous day (something, as I pointed out, scarcely surprising given that the parties were due in court on the following day).  The mother was adamant the children were in a good routine now and that further change would be detrimental.  The mother thought it was good that the father would agree to an order that he not consume alcohol to excess.

1. The mother denied that there was a shared care regime when the parties were together.  She said she was the primary carer.  She conceded however that the father had stayed home between 2013 to 2016 but said nonetheless she had performed all the parental duties when she was not actually working.  [X] was two and the twins were one when she returned to work. 

2. Her current hours are 8.15am till 4.15 pm.  She drops the children at 8am and picks them up at 4.30pm.  She said when the parties were together when she got home she did all the looking after the children as the father was watching TV.  She complained that the father does not brush the children’s hair when they are with him and he fails to take them to the doctor.  The father had failed to organise a hearing appointment for [X] and his conduct was inconsistent. 

3. The mother conceded that the children see both parents as significant carers. 

4. The mother was taken to a series of texts between the parties (exhibit A1) which appeared to show good interaction between her and the father.  She said this goes up and down.  It is okay about health matters.

5. The mother confirmed that she received $34,000 at the start of the relationship.  She said she also got the first home owners’ grant.  She had bought a car out of the combination of the home owners’ grant and the $34,000 paid to her.  The first home owners’ grant was in fact the deposit for the house.  The father was not at home all the time with the children between 2013 to 2016.  The father earned money and kept that for himself.  She had to go back to work.  She was still breastfeeding when she went back to work. 

6. The father bought a car with a redraw on the mortgage in 2016 before separation.  He wanted it for landscape gardening.  It was agreed he would pay the money back but he stopped when separation took place. 

The evidence of Ms C, the family report writer

1. Under cross-examination by counsel for the father (which given the generally favourable nature of the report from the father’s point of view, in my view generally consisted of Ms D), Ms C confirmed that equal time was preferable.  The children have an equal relationship with both parents.  Equal time would remove the need for the children to take sides.  It was clear finances were an issue for the parties.  The issue was the father’s work.  There are no problems with before and after school care.  She interviewed the children separately.  It was clear Mr J had discussed matters to do with the case.  He was aware of his father’s thinking about the end of the relationship.  He had conversations with the father about the father’s thinking on the matter.  The mother talked about problems and gambling was her predominant concern.  Both were fundamentally good parents. 

2. Under cross-examination by counsel for the mother, Ms C confirmed that the father had told her in April that he was working two to three days per week.  He wants to work full-time.  The routine with the mother is a good one but children will adjust to changes in routine if it is beneficial.  The father had been extremely critical of the mother working.  He had said this was neglect.  The mother and father were not getting on when they were interviewed.  The mother is estranged from Mr J and Mr J is aware of his parents’ positions.  Mr J believes his mother reneged upon the agreement.  She had only had a brief conversation with Mr J.  The mother thought that the father had been missing from Mr J’s life and Mr J was keen to have this.  The weasel words text was a power play. 

3. Ms C has had the impression the father thought the mother was too career-focused.  He was committed to family and she was not.  The father said he was the primary carer but proposed only shared care then wanted primary care again.  The children had not been coached. 

4. Ms C was clear that the outcome with Mr J did not prove that the father would alienate the other children from the mother.  Ms C said the parties have to get on.  Fewer changeovers would be better.  The children are aware of the conflict and they seek to limit it.  The mother was concerned about gambling.  She had not expressed any problems about the father’s current drinking. 

Findings about the credit of the parties

1. The father struck me as somewhat intense and over-precise. This may well go to explain the mother’s perception of him as controlling.  His answers as to who paid what in the household struck me as having something of a tendency to concentrate on minutiae.  His answers about his gambling were not entirely convincing and I will deal with that in my findings.  His answers about his alcohol consumption by way of contrast were convincing.  I will deal with his approach towards the alienation of Mr J in due course, but it is sufficient to say that I do not accept the father plays no part in the matter.  His assertion that the parties get along fine is little short of ridiculous.  His answers about finances were generally prevaricatory and he was not prepared to give the mother any credit for her considerable sacrifice in returning to work when the children were so young.  His behaviour in contacting the husband of Ms H was crass to say the least.

2. The paternal grandmother was a quite excellent witness.  She was palpably obviously telling the truth.  Her observations about the difficulties between Mr J and his mother were given with an obvious and sincere compassion.

3. Mr V was likewise a palpably honest witness.

4. The mother impressed me as extremely precise about dates and times and having what I might describe as a concentrated personality.  Her preoccupation with the abstraction of funds in 2005, given its antiquity and obvious forgiveness in the interim, struck me as somewhat obsessive.  She constantly interrupted counsel before questions were finished.  As earlier indicated, her complaint that the father’s mother had not encouraged Mr J to speak to her the day prior to trial struck me as showing a lack of insight.  She was not prepared to give the father any credit for his endeavours as a stay-at-home parent and was keen to minimise his contribution at every point.  She struck me as being extremely strong-willed and this may explain the father’s perception of her as controlling.  Nonetheless and in the main she struck me as a witness of truth.

Findings as to the Relevant Facts

1. The parties had a brief relationship in 1997 following which Mr J was born.  The mother brought Mr J up as a single parent and student with little if any support from the father until 2001.  The father and his family spent very little time with Mr J during this time. 

2. From 2001 onwards the relationship subsisted.  It is not possible for me to say whether it was more casual, as the mother asserts, or less so, as the father asserts.  On any view they cohabitated from at least 2004 until 2017.  Their relationship plainly had its ups and downs, and I have no doubt that there were arguments, and to an extent forgiveness, from time to time.  I am not able to make positive findings as to the mother’s assertions of violence.  There is no police or DHHS material to support any such assertions.  The evidence is simply not compelling enough one way or another to make findings about those matters.

3. What I have no difficulty in finding is that the mother’s approach to finances was always more disciplined and thrifty (to use Ms C’s words) than that of the father.  I fully accept, not least because the mother still feels it so strongly, that the father took a sum of money from her in 2005 and gambled it.  Indeed, I would go further about gambling.  I do not accept that the father historically has been as limited in his gambling as he now wishes to assert.  He is not as I find a person chronically addicted to gambling who is likely to place himself in penury thereby, but he has gambled far more than he has admitted to the Court.  He still gambles, and probably some more than he says, but I am prepared to accept that it is not a chronic problem at this stage.  I have heard him and seen him give his evidence and to this extent I accept it.

4. The mother’s assertions that the father is an alcoholic are simply grossly overstated and plainly not made out on the evidence.  Even the mother’s affidavit evidence would scarcely rise to the point of alcohol addiction.  The father has denied it and I accept that denial.

5. Following the birth of the twins, the parties undoubtedly suffered financial stress.  The correspondence with the bank is merely one of many indications of this.  The mother had to return to work because the father was simply not producing sufficient income.  I think that the mother’s perception of the father is exaggerated but, as I find, he is not as committed to working hard and saving as the mother.  Her continuing bitterness against him for his failure to work is palpable. 

6. Nonetheless the father did stay at home from 2013 to 2016.  Despite the mother’s adamantine denials, he must have had a very significant role in the children’s lives during this period as their primary carer from day to day.  I note and accept Ms C’s evidence that the children are equally attached to both parents. 

7. Like Ms C, I find the father’s assertion that he was the primary carer overstated given his acceptance of an equal shared time arrangement.  Likewise, the mother’s insistence that she effectively did everything for the children throughout is not supported by Ms C’s finding that the children have an equal attachment to both parents.

8. I think that both these parents find unattractive in each other qualities that they themselves to an extent possess.  Both have a tendency to over precision.  Both struck me as being somewhat intense personalities.  As I find their mutual cross allegations of controlling behaviour merely reflect their perceptions of one another.

9. So far as finances are concerned, there is no doubt that the mother’s original property holding was the springboard to the purchase of the matrimonial home, albeit that this was now some considerable period of time ago.  There is no doubt that the mother has been the major earner throughout the entirety of the relationship.  The father undoubtedly performed (omitted) work from time to time, and while I accept that some proportion of the moneys paid to him represented materials and the like, and I accept further that he has done other work for family members and friends in effect for very little if anything, he has made more money in the past in this field than he has been prepared to admit.  It is not possible to assess what his earnings would be as a full-time (occupation omitted), but I find that it would be higher than he is prepared himself to estimate.

Parenting Issues

1. The parties agree that there should be equal shared parental responsibility.  A number of ancillary matters are also agreed to which I have already referred.  The real dispute is whether the children stay in the regime they have been in for the last nine or more months or whether they move to a week about regime.

2. Because the parents agree that there should be equal parental shared responsibility, the Court is required (see Goode & Goode (2006) FamCA 1346 at [65]) to consider an equal time regime.

3. As I find, both parties are, to at least to an extent, influenced in their arguments about time by underlying suspicions that the determination of this issue may impact upon the financial outcome to this case and their ongoing finances more generally.  I share Ms C’s perception of the parties in this regard.

4. That having been said, however, I have no doubt that each of the parents genuinely seeks the outcome for which they contend for. It is a matter of approaching it in the light of the matters in section 60CC of the Family Law Act 1975, bearing in mind of course the objects in section 60B.

The Primary Considerations

1. Everyone agrees that it is the benefit of the children to have a meaningful relationship with each of their parents.  Although the mother has sought to make serious allegations of violence against the father, I am not able to sustain them.  The mother has asserted that the father under financial pressure will return to excessive gambling, but although I have not dealt with this matter I would indicate that I do not accept that that is the case.  He has been under financial pressure at least since separation (he had to borrow some $20,000 to re-establish himself from his aunt once he moved to his own property), and I do not find that his gambling has increased.

2. There is in my view no need to protect the children from the risk of being exposed to abuse, neglect or family violence.

The Additional Considerations 60CC(3)(a)

1. [X], who is seven years old, volunteered that it would be best if she spent week about with her parents.  [Z] thought no one would be upset if the present arrangements remained.  [Y] thought that if the arrangements were week about no one would be sad.

2. These views must however be approached in the light of the children’s young age, although I note that Ms C’s report suggests that [X]’s view in particular might be relatively sophisticated for her age. 

Section 60CC(3)(b)

1. The children both have loving and secure relationships with each parent.  Ms C has found that there was no evidence suggesting the children had a stronger relationship with either party.  It should be noted that Ms C was a professional witness giving evidence within her area of expertise and she was not in any way shaken by any questions put to her.  I fully accept the force of her evidence.

2. Additionally to their parents the three younger children have a strong relationship with Mr J, although I agree with Ms C that this may change as his adult life comes more into play.  It is clear that the children likewise have good relationships with the extended families on both sides including, importantly for these purposes, the parental grandparents.

Section 60CC(3)(c)

1. Despite some minor carping from the mother about the father and medical appointments, there is nothing to suggest that either parent has failed properly to participate in making decisions about major long-term issues in relation to the children and spending time and communicating with them. 

Section 60CC(3)(ca)

1. Here the first thing to be said is that the father’s prior criticisms of the mother for working to support herself and the children are utterly to be condemned.  The tenor of the mother’s evidence, given with sincerity, is that she only returned to work when she did because the father was simply not providing sufficiently for the family. I accept this evidence. I think the father was work shy to an extent and certainly lacking in dynamism as regards earning an income to support his family.  The mother has in the most commendable way sought to provide for the children.  The father in my view is not properly the subject of great criticism for his not working between 2013 and 2016 as he must have been looking after the children.  In my view he must accept some small measure of criticism for his failure to work between 2013 and 2016, albeit that I accept that he was the primary carer of the children to at least an extent during this time.  I note the father has paid no child support but given his income that is not surprising.

Section 60CC(3)(d)

1. In the circumstances of this case this is an important consideration.  I note that Ms C recommended an equal time regime.  From her evidence it was clear that she felt that the children could adapt to further change if it was beneficial and she thought such further change clearly was beneficial.  Obviously such a change may in some fashion touch upon the parties’ finances but that in my view is a separate issue.  I note that Ms C was of the clear view that a week about arrangement would benefit [X] by removing her from the conflict and that the twins, who had adjusted well to being in school in year 1, would benefit from living week about with the parties.

2. A further benefit to the week about arrangement would be that the children would spend more time with their brother Mr J with whom they have a close relationship, at least in the short term. 

Section 60CC(3)(e)

1. There does not appear to be any practical difficulty in a week about arrangement.  The parties all seem to live close enough together.  I accept that in a week about arrangement the father would require and utilise the assistance of his own parents, particularly his mother, to get the children to school.  Having seen the paternal grandmother I have no doubt whatever that she would fulfil that obligation, and equally to the extent necessary the paternal grandfather would do so as well.  I have not seen the paternal grandfather who did not give evidence, but this is one occasion in which I am prepared to accept hearsay.  The paternal grandmother, I repeat, was a truly excellent witness.  There may be days where the father has to make other arrangements and get the children into what would be very early preschool care however they are likely to be few and far between.  There may even be days where for one reason or another the mother likewise has to use family members to assist her.

2. Given that the predominant pre and after-school care for the father would be free, and given that the mother has coped with her regime for nine months, there does not appear to be issues relating to expense, and indeed the week about arrangement would reduce the amount of money the mother has to spend on before and after-school care.

Section 60CC(3)(f)

1. Each of these parents is well able to provide for the children’s needs, as I would find also are both sets of extended families to the extent that they deal with them.  They have filed affidavits and have not been cross-examined, with the exception of the paternal grandmother being cross-examined.

Section 60CC(3)(g)

1. These are young children but at least in the case of [X] apparently reasonably well able to express clear views.  I have dealt with certain aspects of the parents’ personalities already, but none of these in my view are in any way significant inhibitors to their caring for the children.  Indeed, it is implicit in each parties’ position in any event that the other is an adequate carer. 

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. Although this subsection is of course important, this has really been dealt with already in the matters above.  The only matter I would add is that each parent to an extent is motivated by financial considerations which are not a proper child-focused criterion. 

Section 60CC(3)(j)

1. As earlier indicated, I have not been able to make positive findings about the family violence alleged.  I note that a number of the matters raised by the mother are of considerable antiquity and that the relationship subsisted to 2017 in any event. 

Section 60CC(3)(k)

1. This subsection is not relevant. 

Section 60CC(3)(l)

1. It is clearly better to make final orders and all parties seek that the Court do so.

Section 60CC(3)(m)

1. Here the one consideration not yet touched on is that raised by the mother.  She says the children have been in a settled routine for some nine months and are doing better this year than last year at school.  It does seem that this latter point is, indeed, correct.  Thus, the children have a relationship with their father that Ms C finds is just as good as that with their mother, despite the 10/4 regime having been in place for some time.  This is a good point. 

Conclusion on the spend time issue

1. I have given careful thought to the matters set out above.  Nonetheless, and despite their force, I think that the children’s best interests will be met by an equal time regime.  They will spend more time with their brother Mr J, and it is to be hoped that Mr J’s estrangement from his mother is able to come to an end.  As I find the father at the very least does nothing to re-establish that relationship.  I would strongly suspect he fans the flames when he can.

2. In the end the recommendations of Ms C are clear.  The children are equally attached to both parents and Ms C’s professional opinion is that an equal time regime is in the best interests of the children.  An equal time regime will be ordered.

Property

Stanford & Stanford (2012) 247 CLR 108

1. In this case both parents seek that there be an adjustment to property interests and the basis upon which they conducted their affairs as a couple has radically altered.  It is clearly appropriate that the Court contemplate property orders. 

The pool

1. The parties agree the following table of assets and liabilities:

   ·Family home at Property A, $595,000

   ·Mortgage $246,500

   ·Wife’s Motor Vehicle 2 car $6000

   ·Husband’s Motor Vehicle 1 $25,000

   ·Superannuation husband Super Fund B account $54,678

   ·Husband’s Super Fund A account $207

   ·Wife’s Fund C super account $89,587

Contributions

1. It is tempting to say that in a relationship that lasted in one form or another from 2001 to 2017 everything should be taken as equal.  There are, however, a number of issues that militate against this outcome.

2. First, there is no doubt that it was the wife’s initial property holding, then realised and applied to the purchase of the matrimonial home, that got the parties started.  It was admittedly some 12 or so years before separation, but given that the parties had nothing before then and only relatively modest earning capacity at the time, one may question how long it would have taken them to have saved the necessary deposit to buy a home otherwise.  There is no means of arriving at any percentage calibration of the value of the initial contribution, and I note that if I understood her correctly the mother said she had bought a car out of the funds that were made available to her in 2005, but she does deserve some credit for this contribution.

3. Further, the mother worked for all but two years of the relationship.  She was on unpaid maternity leave during that time (affidavit filed 13 June 2018, paragraph 42). She always earned substantially more than the father did.  I have no doubt that the mother conducted the vast bulk of the home duties until the children were born and indeed as I find continued to play a significant role in the home duties, even during the years 2013 to 2016.  The wife on even the husband’s version paid all the mortgage, utilities and other bills.  The husband’s assertions as to his contributions struck me as being of far lesser moment than those of the wife.  In all the circumstances I would assess the contribution of the parties as being 55 per cent in favour of the wife and 45 per cent the husband. 

Future needs

1. Here the position is somewhat the reverse.  Although the wife’s salary will, as I accept, decline in all probability when her current temporary promotion ceases (presumably depending upon whether the person she is covering for maternity leave elects to return) her salary is likely always to exceed, and by a wide margin, that of the husband.  To an extent I think the father underestimates his earning capacity, both because he will be working full-time and because he can more probably than otherwise make more money as a (occupation omitted) than he has conceded. On any view of the matter, however, his earnings are always likely to be substantially less than those of the wife.

2. I note that in his original application the father sought spousal maintenance but I would certainly not be minded to order that given that any shortages of funds on the father’s part, at least in part, springs from his own indolence. 

3. In all the circumstances and bearing all these matters in mind (most particularly the equal time regime for the children) I would make an adjustment of five per cent in the father’s favour.

Conclusion as to property matters

1. In all the circumstances of the parties’ relationship as described above an equal distribution of property seems to me to be just and equitable.

Superannuation

1. Given that a very substantial proportion of the superannuation the parties now have must have accrued during the relationship, it is in my view appropriate that there be a superannuation equalisation clause.  Neither party had superannuation of any moment at all at the time of the commencement of the relationship and they have only been separated for one year. 

Conclusion

1. Neither party has addressed the Court in any great detail as to the precise form of orders to be made.  I expect that the wife may seek to pay the husband out, but am not certain that she will be able to do so. I will request the parties to confer and produce minutes of orders affecting these reasons for judgment.

I certify that the preceding one hundred fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 9 August 2018