Naggar and Sotto

This case involved parenting and property settlement proceedings between Mr Naggar (the applicant husband) and Ms Sotto (the respondent wife) concerning their seven-year-old son. The parties had separated in December 2002 after approximately five and a half years of cohabitation. While the proceedings initially included a spousal maintenance claim, this was abandoned. A company, J Pty Ltd, was initially joined as a second respondent but was removed from the proceedings by agreement. The primary dispute in the parenting proceedings centred on the proposed living arrangements for the child, with the husband advocating for equal time on a week-about basis and the wife seeking orders for the child to live with her and spend alternate weekends and one night per fortnight with the husband. In the property proceedings, the parties disagreed on the division of their assets and liabilities, with differing contentions regarding their respective contributions and the impact of various financial factors. The matter was heard in the Family Court of Australia at Sydney before Steele J.

The court was required to determine the parenting orders that would best serve the child's interests, considering the presumption of equal shared parental responsibility and the practicalities of equal time arrangements. Specifically, the court had to decide whether the child should spend equal time with each parent, and if so, what form that equal time should take, weighing the child's expressed preference for week-about arrangements against the wife's proposal for a reduced period of time with the husband. In relation to property, the court needed to assess the parties' respective contributions to the acquisition, conservation, and improvement of their property, as well as consider various financial factors under section 75(2) of the *Family Law Act 1975* (Cth) to determine a just and equitable distribution of their assets and liabilities.

Steele J applied the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child as the paramount consideration in parenting matters, noting the presumption of equal shared parental responsibility and the factors to be considered under sections 60B, 60CA, 60CC, and 61DA. The court accepted the evidence of Dr R, a child psychologist, who recommended a week-about shared parenting arrangement and noted the child's preference for this arrangement. In property proceedings, the court applied section 79 of the Act, considering the parties' contributions and the section 75(2) factors. The court adopted a global approach to property valuation and distribution. After considering the evidence, including the parties' financial circumstances, contributions to the marriage and post-separation, and earning capacities, the court determined that a contribution-based entitlement of 60% to the husband and 40% to the wife was appropriate. An adjustment of 7.5% in favour of the wife was made for section 75(2) factors, resulting in an overall distribution of 52.5% to the husband and 47.5% to the wife.

The court made parenting orders for the child to live with the husband and wife on a week-about basis, with changeovers occurring each Friday after school. Specific provisions were made for school holidays, birthdays, Father's Day, Mother's Day, and Christmas, including a compromise for Christmas Eve celebrations. The court also ordered that the child's passport be held by the court registry and restrained both parties from removing the child from Australia or permanently relocating the child outside the Sydney metropolitan area without consent or further order. In terms of property, the husband was ordered to pay the wife $83,659 within 90 days, after which the parties were to transfer the husband's interest in the "A property" to the wife and the wife's interests in the "W properties" to the husband. If compliance did not occur, the Registrar was empowered to execute documents, and the "W properties" were to be sold by public auction. The court also noted that certain moneys held in a Westpac Children's Foundation Plan were held in trust for the child's welfare and education.