O’Connor and Islington (No 2)

[2008] FamCA 647

FAMILY COURT OF AUSTRALIA

O’CONNOR & ISLINGTON (NO. 2) [2008] FamCA 647

FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – PROPERTY – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Islington

RESPONDENT: Mr O’Connor

FILE NUMBER: MLF 1934 of 2006

DATE DELIVERED: 8 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M. Vohra

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Mr I.F. Mawson SC

SOLICITOR FOR THE RESPONDENT: Aughtersons

Orders

1. That the husband and the wife have equal shared parental responsibility for the children of the marriage H born … July 1995 and G born … February 2004.

2. That the children live with the wife.

3. That the time spent between H and the husband be as agreed between the parties and with H.

4. That G spend time with the husband as follows:

   (a)during each alternate weekend commencing 10 July 2008 from 5 pm on Thursday until 9 am on the following Monday morning with the husband collecting the child from the wife at the child’s home at the commencement of the period and returning her to the wife at the child’s home or the child care centre/kindergarten (as may be agreed) at the conclusion of the period. On the Fridays during the husband’s period of time with G until she commences school, the wife shall collect her from the conclusion of her day care or kindergarten and deliver her to the husband at his office at 5 pm;

   (b)on alternate Wednesdays commencing on 30 July 2008 from 5 pm on the Wednesday with the husband collecting the child from the child’s residence and returning her at 9 am on the Thursday morning to the child’s home or day care centre/kindergarten (as may be agreed);

   (c)on Fathers’ Day between 10 am and 6 pm with the husband collecting and returning the child;

   (d)on the husband’s birthday from 5 pm until 9 pm with the husband collecting and returning the child;

   (e)on G’s birthday which shall be celebrated on a date to be agreed:

   (i)if not a school day from 11 am to 3 pm with the wife delivering the child to the husband’s home at the commencement of the period of time and the husband returning the child to the child’s home at the conclusion of the period;

   (ii)if a school day, from 6.30 pm to 8.30 pm with the wife delivering the child to the husband’s office at the commencement of the period and the husband returning the child to the wife’s residence at the conclusion of the period;

   (f)for one half of the Easter break by agreement and in default of agreement, from 5 pm on Easter Thursday until 5 pm of Easter Saturday with the wife delivering and the husband returning the child;

   (g)from 5 pm on 24 December 2008 until 5 pm on 25 December  2008 and for a similar period in each alternate year thereafter with the husband collecting and returning the child;

   (h)from 10 am on 26 December 2008 for a period of 7 days and for a similar period in each alternate year thereafter with the wife delivering and the husband returning the child;

   (i)from 5 pm on 25 December 2009 for a period of 7 days and for a similar period in each alternate year thereafter with the wife delivering and the husband returning the child;

   (j)for one week during school term holidays providing that the husband gives 14 days written notice and in the absence of an agreement thereafter, for the first week with the wife delivering and the husband returning the child.

   (k)That the time between the husband and G on Mothers’ day shall be suspended from 10 am to 6 pm with the wife collecting the child from the husband at his residence and the wife returning her there at the conclusion of that period.

5. That the time between the husband and G on the wife’s birthday shall be suspended from 10 am until 6 pm with the wife collecting and returning the child.

6. That the husband and the wife undertake and complete an appropriate post separation parenting course before the end of 2008.

7. That subject to the parties agreeing to organise counselling between H and the husband, the wife do all things necessary to ensure that H attends any appointment recommended by the appointed therapist and assists by delivering H to the appointments.

8. That during school term holidays, paragraphs 4(a) and 4(b) shall be suspended if the husband spends time with G under paragraph 4(j). If the husband does not spend time with G and the wife is not going away for holidays, the provisions of paragraphs 4(a) and (b) shall not be suspended.

9. If paragraphs 4(a) and (b) are suspended because of the school holidays, they shall resume as if they had not been suspended as soon as school resumes.

10. During the summer school holidays, paragraphs 4(a) and (b) shall be suspended during any period when the wife is away on holidays with the child.

11. 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.

BY CONSENT IT IS ORDERED:

FINAL PROPERTY ORDERS

1. That within thirty (30) days of the granting of Orders the husband provide to the wife an executed Transfer of Land in registrable form to transfer to the wife all of his right title and interest in the real property known as B property in the State of Victoria ("the transfer") being the whole of the land described in Certificate of Title Volume … Folio … ("the B property").

2. That the husband indemnify and keep indemnified the wife from all debts liabilities and obligations of the wife relating to or arising out of:

   (a)the mortgage to the ANZ Bank presently encumbering the B property;

   (b)any monies/debt owed to the husband's parents in respect of the B property.

3. That within sixty (60) days of the granting of Orders ("the date for payment") the husband pay to the wife the sum of ONE HUNDRED AND THIRTY-FIVE THOUSAND DOLLARS ($135,000.00) ("the payment").

4. That in the event that the transfer and payment have not been made by the date for payment then the husband's property situate and known as P (hereinafter referred to as "the P property") and/or the property situate and known as S (hereinafter referred to as "the S property") be forthwith sold altogether out of Court and the proceeds of sale be applied:

   (a)       Firstly, to pay all costs, commissions and expenses of the sale/s;

   (b)Secondly, to discharge the mortgage owing to the ANZ Bank affecting the B property;

   (c)Thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 11.75% per annum adjusted monthly from the date for payment to the date of payment, to the wife; and

   (d)Fourthly, the balance to the husband.

5. That the husband maintain all payments as and when they fall due on the ANZ Bank mortgage encumbering the B property and discharge the said mortgage no later than the 31^st December, 2008.

6. That in the event that the ANZ Bank mortgage encumbering the B property has not been discharged by the 31^st December, 2008 then the P property and/or the S property be forthwith sold altogether out of Court and the proceeds of sale be applied:

   (a)Firstly, to pay all costs, commissions and expenses of the sale/s;

   (b)Secondly, to discharge the mortgage owing to the ANZ Bank affecting the B property; and

   (c)Thirdly, the balance to the husband.

7. That pending the transfer, the payment and the discharge of the ANZ Bank mortgage the husband pay all instalments of principal and interest as and when they fall due in respect of the mortgage secured against the S and P properties and not otherwise further encumber these properties save to give effect to these Orders.

8. That the wife shall sign all documents and do all acts and things reasonably requested of her, by the husband, to:

   (a)resign any position as Trustee or Appointor of the O’Connor Family Trust ("the Trust");

   (b)relinquish any claim of whatsoever nature against the trust or the husband in his capacity as trustee; and

   (c)obtain a release of the husband from any guarantee or indemnity for any credit card operated by the wife, and the husband and wife do all things as may be required to give effect to this Order.

9. That the husband shall indemnify the wife and keep her indemnified in respect of any liability of whatsoever nature arising from the operation of the Trust.

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 parties at the date of these Orders, the furniture, personal possessions and like chattels in the B property being deemed to be in the possession of the wife;

    (b)monies standing to the credit of the parties in any joint bank accounts be distributed equally between them.

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

    (d)insurance policies remain the sole property of the owner named thereon;

    (e)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 or otherwise; and

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

11. That pursuant to Section 116(i)(b) of the Child Support (Assessment) Act 1989 there be a departure from the Administrative Assessment of the Child Support payable by the husband to the wife for the children H born the … day of July, 1995 and G born the … day of February, 2004 for the period from the 1^st day of July, 2008 to the 30^th day of June 2013, the annual rate of Child Support be set at $11,700.00 per child.

12. That the rate of Child Support payable by the husband to the wife increase from the 1^st day of July each year in accordance with variations in the Consumer Price Index.

13. That pursuant to Order 38 Rule 26 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and Senior Counsel for the husband.

THE COURT NOTES:

That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial and other relationships between them and avoid further proceedings between them.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1934 of 2006

MS ISLINGTON

Applicant

And

MR O’CONNOR

Respondent

REASONS FOR JUDGMENT

1. In February 2008, family consultant, Michael N, wrote:

   In relation to considering shared parental responsibility, the parents are likely to experience difficulty at the moment reaching agreement about important decisions regarding the children because of their uncooperative parenting style.  Neither party is able to effectively communicate with the other and in particular, by her own admission, [the wife] does not even try.

2. The issue I have to determine is a discrete one.  Some would say it is a simple one, but to the husband and the wife, it just represents a stumbling block.  It is about what time the husband spends with one of two children in an alternate week, bearing in mind that about the other week, there is general consensus.

3. To their credit, Mr O’Connor and Ms Islington - to whom for convenience I shall refer as husband and wife - have negotiated extensively, listened to the advice they have been given and as late as yesterday, attended again upon Mr N to make an attempt to resolve the impasse.  Mr N complimented the parties on nearly getting there but acknowledged, as do the parties, they just need a decision.  Also to their credit, neither party required the other party to be cross‑examined about their evidence.  Each counsel succinctly put their client's position in cross‑examination of Mr N.

4. There is every reason to believe that once the litigation ends, the parties' emotional wounds will heal and they will then approach the same task entirely differently.  For the moment, however, they cannot, and as such, I am determining this dispute for them on a final basis.

5. I shall also deal with some other issues such as travel which again to their credit the parties have asked me to resolve for them.  Although I do so on what I am presented with, it is obvious that I am determining these issues subjectively.

6. Having said that, two issues need to be made clear: first, the parties have agreed to an order for equal shared parental responsibility. Equal shared parental responsibility is a sharing of parental responsibility. Section 61B of the Family Law Act 1975 (Cth) (“the Act”) defines parental responsibility as all of the duties, powers, responsibilities and authority which by law parents have in relation to children. Each of the husband and wife has that responsibility according to the orders that each seeks. They must begin to jointly exercise those responsibilities. I propose to make an order under s 13C of the Act that the husband and wife attend the Parenting After Separation program.

7. I will not canvass the background of these proceedings because there is still an issue to be determined.  However, it would be remiss of me to overlook the fact that whilst the majority of what I am now dealing with relates to G, there is also H to be determined.  It is common ground that 13-year-old H does not enjoy a good relationship with his father.  There will be an order that will address the attempt to rectify that problem. 

8. It is not just a one-parent issue, it applies to both.  Whilst the husband has to repair, if not develop his relationship with H, that can only occur if the wife fosters it and assists in any way possible.  I am satisfied that although the wife desires the husband to be responsible, she is positive and encouraging of the future relationship between the husband and H and that is a good sign.

9. In February 2008 the wife's position about G was that she would seek that the husband's time with the children occur for a single block period each fortnight, rather than being interrupted by the Wednesday.  She suggested that G spend time with her father from Friday to Sunday evening or Monday morning.  The husband’s position about G at that time was that he wanted alternate weekends from Friday evening to Monday morning and every Wednesday for an overnight visit.

10. The family consultant explored various alternative options other than the weekly Wednesday visits but the husband had no other alternatives, nor was he able to find any suggestions acceptable.  The wife indicated that the children spending the time with their father each Wednesday for an overnight visit caused a lot of difficulties and that the midweek visit every Wednesday was disruptive and unsettling for G, in that it took her at least 30 minutes to settle every time she returned from spending time with her father.  Her view was that removing the Wednesday visit would minimise that post-contact unsettled behaviour. Mr N said that to a large degree, that behaviour was nothing unusual.

11. Initially, when Mr N did his February report, separation anxiety was an issue for the wife.  It seems that it is no longer something about which there should be any great concern.  Mr N reported in February that the child care centre advised that G just moved to their kindergarten group last year.  She was a quiet, happy child who went to staff easily.  She was shy, and initially after being dropped off, would sit with staff for about 10 minutes and then happily went off by herself to play with others.  There were no separation difficulties with either parent at drop-off time.  Mr N said that G had settled well into the day care environment and engaged with other children.

12. Mr N also reported that when he interviewed G, she presented as a delightful and engaging child with excellent verbal skills that could only be a credit to both of these parents.  When he asked G to accompany him to his office, she very easily separated from her brother in the playroom.  He noted that when exploring her relationship with both parents with respect to her tender age, developmental level and limited cognitive ability, G raised no complaint or criticism regarding either parent.  Again, that must be seen as a compliment to both parents. G has never demonstrated any anxiety, fear or distress when separating from either her father or mother, even in the unfamiliar environment as the child care room at the court.

13. All of the indications therefore are that there is no concern about parenting capacity or conduct.  In his evidence before me, Mr N said that the absence of H in the contact arrangement made no significant difference.  He said that G was not distressed by the changeover.  It is obvious that the father and child relationship is strong.  There is no evidence that G is distressed by being away from her mother or brother.

14. All of the issues of concern expressed by the parties relate to issues surrounding them, their availability, capacity and convenience.  That is not a criticism, because as parents, the sharing of children is but one aspect of parenting and one of many issues that affect their daily lives.  I could be philosophic and say that when the parents' convenience and rights clash with the welfare of a child, the child's entitlement's must hold sway, but as has often been pointed out, these are all but pieces of a rich tapestry of trying to share in the lives of children when the adult joint relationship is no longer functional.

15. There is a very strong sense of trying to reach a compromise here to suit the parents but at the same time trying to find a solution which is in the best interests of both children.  Part of the problem - and I stress "part", because there are many facets to the relationship between the husband and wife - is their lack of communication, notwithstanding they agreed to orders for equal shared parental responsibility.  The wife’s view is that the level of conflict between she and the husband is quite substantial and she acknowledges the difficulty, causing the children being exposed to tension at handovers. 

16. She told Mr N that she has been attempting to tell the husband for several years that the communication between them is simply not working but in her view, he does not acknowledge any problems and simply dismisses her.  She stated that to Mr N that the husband often shouts, is a great orator and twists her words.  She added that she does not want to talk to the husband about issues, even health-related issues regarding the children.  Mr N opined that the wife appeared quite proud that she has come to terms with an understanding that the husband will not change his behaviour, so now she remains silent and does not engage or entertain communicating with the husband unless it is vitally necessary.  That assessment is very sad.

17. Mr N’s assessment of the husband was that he was feeling quite frustrated, as the wife does respond nor provide him with any information regarding the children's affairs.  He said that pretty much since separation, the wife has not spoken to him which he simply does not understand. 

18. The affidavit evidence upon which I have to determine this issue was equally brief.  It related to the fact that there has been an arrangement now for some time and it should or should not be changed.  The wife's evidence was that in January 2008, the husband and she had further discussions about care arrangements.  She considered that five nights per fortnight was too long for G to be away from her.  She said that ultimately, there was an agreement whereby H would spend time with the husband five nights per fortnight commencing on the Wednesday night and concluding on the following Monday morning, and G would spend time with the husband for four nights per fortnight commencing on the Thursday night and concluding on the Monday morning, save for the Friday when she would collect G from kindergarten and care for her until the husband finished his working day on the Friday.  The wife said that from her perspective, the arrangements had worked well and were appropriate for the children.

1. The husband's view was entirely different.  He said that the wife had unilaterally reduced his time with the children, causing him to apply for interim parenting orders.  He said her position was never agreed upon, was not satisfactory and was otherwise totally unacceptable.  He said the arrangements had not worked well, nor were they appropriate.

2. The reality is that the starting point, the relationship between G and the husband is sound.  There are no difficulties about which I should be concerned, notwithstanding the wife's expressed concern about the post‑contact unsettled behaviour.  All of the observations of Mr N indicate a happy and contented child who, at G’s age, needs regular time with both parents.  As Mr N said, she is of an age where she now knows she can leave her primary attachment, explore the relationship with her father, knowing that she can return to the security of her mother in a time frame that she understands.  Accordingly, the Wednesday night time is important.  The problem is its implementation. 

3. When the hearing began yesterday, the parties had not seen Mr N since February. They spent some time with him during the day and he gave evidence.  He said the parties would consider a compromise but could not quite agree on it.  He said the compromise was Thursday to Monday and one extra night overnight.  The husband said that he would consider that position and the wife said she preferred the current configuration.

4. The compromise would mean more changeovers at least for the time being because the husband concedes he could not have G for the period after child care on Friday until he concludes work on the Friday night.  However, the travelling would impose a burden on the wife.  She was content for that to occur because she was willing to pick up G at child care, look after her and drop her at the husband's work at the end of the day.  The problem is the changeovers where the parties' relationship is non‑existent.  To that extent, the child is fine and the parents are not.

5. The travel by the wife from the child care to the husband's office is not significant.  In my view, that compromise works best for G.  Its only problem is the willingness of both parents to fulfil their parental responsibilities.  The husband says he has some flexibility but needs to work to support the family.  The wife has taken on the commendable major carer role and has time on Fridays.  It is just that she dislikes the handovers or more probably the interaction with the husband.

6. There is no evidence that G does not cope with a number of changeovers. That means that Thursday through to Monday is a sensible option. It means that the husband will have an opportunity to spend what the Act describes as "significant and substantial time" where he can do the things that other parents do, other than just in leisure time. That therefore leads me to the Wednesdays. The husband wanted all Wednesdays. In my view, that would mean effectively just an evening and with such a young child, not much more than feeding, bathing and putting her to bed. It is hard to see that as part of a significant and substantial time if that occurred every week with G being so young.

7. The objective of some time in the off week is to allow G to develop the relationship with her father in circumstances where his absence for nine or so days is too long. The gap between the alternate weekend and the off Wednesday seems, on the evidence of Mr N, to be exactly what G needs.  That, however, leads to the question of overnight or just a meal.

8. As I pointed out in discussions with counsel, by phasing in the Wednesday night, I would be allowing the parties to adjust to their new-found obligations.  However, that approach would not necessarily be an exercise of my responsibilities, having regard to the fact that I have found that it is in the best interests of G to spend regular and substantial time with her father.

9. I have said little about H.  It is acknowledged by both parties that there are unresolved issues with him.  Much has been said and highlighted about his relationship with his father but there is also an acknowledgment by his mother that H causes her problems.  The dilemma is that the wife is currently dealing with those problems on a daily basis, the husband is not. 

10. Mr N acknowledged that the husband's various responses, as detailed in the affidavit material about his responses to H, were inappropriate.  Both parties want an order for equal shared parental responsibilities.  As such, each has the responsibility for H to which I have already referred.  To achieve that position where the responsibility can be actively managed, H needs to participate in counselling which involves his father but which must be enthusiastically supported by his mother.  Without her input, it is hard to see how H, as an adolescent, could possibly have any respect for his father and begin to develop a meaningful relationship with him.

11. Orders relating to H, however, should be limited to endeavouring to re‑establish the framework.  He is of an age where his views should be seriously considered.  It is unwise of a parent, but also a court, to simply pander to the wishes of an adolescent child.  I am not intending that here.  From the evidence, there is a strongly held view by H that he will control his relationship with his father.  From the court's point of view, that view should be respected, but with the clear understanding that it is his best interests that we are concerned about and it is a desire to sort out the relationship with his father with professional help. 

12. I shall deal in a moment with the legal issues set out in the Family Law Act. In respect of H, I am satisfied that the orders I propose are in his best interests, after contemplating all of the matters set out in s 60CC.

13. Much of this case, also little evidence was given about it, related to travel.  The husband's position is that there should be equality of travel.  I reject that for a number of reasons.  First, the husband's professional business is in N and the wife's residence is in B.  The husband's work schedule should enable him to drive the short distance to collect the child.  He can then drive to his home in P.  The real issue here is about N and B and in my view, that is hardly significant.  The second issue is that there is a significant difference between the financial positions of the parties. With economic strength comes economic responsibility.  The husband can do more of the travel than the wife.

14. However, there are exceptions to that; the first is on the Friday.  I propose that as the wife will collect G from child care or kindergarten and look after her until 5 pm, she should deliver G that Friday.  The second is on special days; I have made provision for the special event on Father's Day, Mother's Day and the husband's birthday.  As these days in all events are only a small part of a weekend, I think that the parent who wishes to celebrate that day cutting into the other parent's time should do the travelling.  The third is school holidays; with luggage to go with a child and the excitement of a longer period which it engenders, it is important that the wife deliver the child at the commencement and the husband return at the conclusion.

15. In respect of G’s birthdays, the proposal makes sense because of the shortened time involved and both parents should make that day special for G.  Travel can therefore be shared.

16. Section 60CA says that in making a parenting order, I must make a decision in which the best interests of G are paramount.  Guidance is provided by s 60CC as to how to determine what is in the child's best interests.  Section 60CC(2) sets out that the primary considerations are the benefit of a child having a meaningful relationship with both parents and, secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  I am not concerned about the latter.  There is no issue here which either party has highlighted.  In respect of the former, the time between the husband and G is important, so that G will benefit from that meaningful relationship.  The wife's proposal seems to have limitations which create a strain on that meaningful relationship.

17. Section 60CC(3) provides some additional considerations.  The ones that are relevant are, firstly, that any views expressed by the child, so long as they are relevant to the weight it should be given, must be taken into account.  In this case, having regard to G’s age, I do not think her views should be taken into account.  The second is the nature of the relationship with the child with each of the parents.  I am quite satisfied here that that is quite appropriate and the relationship with each parent is sound.  The third is 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.  Albeit that I have some reservations about the wife's position, I am quite satisfied that as a result of what I heard from Mr N yesterday that there is a strong desire by both parents to ensure that the children's relationship with the other parent remains sound.

18. The fourth issue relates to the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents.  I have dealt with that issue in what I have just said in relation to the nine-day gap, as well as the question of separation anxiety.  It seems to me that there are no longer any problems for G in separating from her parents.

19. The fifth issue relates to the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs.  I am quite satisfied that both parents have those capacities and each is now focused on the needs of their respective children and I include in that statement H.

20. The sixth and final issue about which I have some concern was the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.  Apart from communication which in my view is still a responsibility of parenthood, each seems to have G’s interests at heart.  The problem of their future relationship with each other spills over on to the responsibilities of parenthood and for that reason I have made the order that each parent attend a post-separation parenting program and I desire that that be completed by the end of 2008. 

21. There are other additional considerations, one of which is whether it would be preferable to make an order least likely to lead to further proceedings.  I have given great thought to that, particularly about the issue of whether or not I should simply make some temporary orders and see how they go.  However, it seems clear to me that the parties in this case need this resolution on a permanent basis.  Perhaps the matter can be resolved by some further discussions with the assistance of professionals by the time G starts school.

22. There are also questions in s 60CC(3) about violence and family violence orders.  Neither party has highlighted those problems and I do not propose to make any findings that there are issues associated with that problem.

23. Taking into account all of the evidence, in my view the orders I have indicated to counsel this morning are in the best interests of these children. 

DISCUSSION

1. Earlier this morning, I delivered reasons for judgment in the children's issues.  The parties have now handed to me some minutes of final orders in relation to financial matters.  This is a case in which the husband is 39 years of age and a lawyer by profession; the wife is aged 38 years and engaged principally in caring for the children and maintaining the home.  It is a relationship of some substance and has ended rather sadly. 

2. The parties have come to an agreement today which is quite precise in terms of dollar figures but as Mr Mawson correctly points out, it depends on which way you view a number of aspects of the settlement.  One can get a different view of the various percentages.  In my view, the percentages really do not matter much in this case.  It is the underlying value of the outcome that really matters.  I have had the advantage of reading all of the material, including the financial documents provided by each party and this seems to me to have a strong ring of commercial reality about it and to that extent, the parties are to be congratulated for what they have done in respect of the property matters.  I am satisfied that these orders are just and equitable. 

3. There is also a child support departure order which arises out of an application that was part of the proceedings to depart from the assessment in respect of the two children.  The parties have come to a very sensible compromise which also seems to me, looking at the documents, to be within the range of what the assessment should be anyway.  I do not have to look at that in any great detail.  As I understand it, the provisions in the legislation enable me to make an order by consent on the basis that the parties have a pending proceeding and that is exactly what the situation is here.  I am satisfied that it is appropriate to make those orders.

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  23 July 2008