Post and Donner

[2014] FCCA 492

FEDERAL CIRCUIT COURT OF AUSTRALIA

POST & DONNER [2014] FCCA 492

Catchwords:
FAMILY LAW – De Facto property, length of relationship, contributions by the Applicant to the Respondent’s business ventures, oral application for variation of parenting orders.

Legislation:
Child Support (Assessment) Act 1989
Family Law Act 1975, ss.90SB, 90SF(3), 90SK, 90SL, 90SM(3) 90SM(4), 90SH

Stanford & Stanford (2012) FLC 93-495
Bevan & Bevan [2013] FAMCAFC 116

Applicant: MS POST

Respondent: MR DONNER

File Number: DGC 637 of 2012

Judgment of: Judge Small

Hearing dates: 2 & 3 December 2013

Date of Last Submission: 3 December 2014

Delivered at: Dandenong

Delivered on: 18 March 2014

REPRESENTATION

The Applicant: Ms Post in person

The Respondent: Ms E. Swart

Solicitors for the Respondent: Robin Harrison & Associates

ORDERS

1. The Applicant mother shall be at liberty to accompany the child of the relationship, X born (omitted) 2000 (“X”), on the day in January each year when X is required to undergo tests and check-ups at the (omitted) Hospital, regardless of whether that day is a day he is spending with the Respondent father pursuant to previous orders.

2. The Respondent shall pay to the Applicant the sum of $95,250.00 (ninety-five thousand two hundred and fifty dollars) on or before 16 June 2014 (“the payment”).

3. Contemporaneously with the payment, the Applicant shall do all such acts and things and sign all such documents as may be necessary to relinquish all of her right, title and interest in: 

   (a)the property situated at and known as Property H in the State of Victoria (“the real property”);

   (b)the companies (omitted) Pty Ltd and (omitted) Pty Ltd;

   (c)any other property registered in the name of the Respondent or any company of which he is a shareholder and/or Director;

   and the Respondent shall indemnify and keep indemnified the Applicant against all liability for any mortgage loans, debts or other liabilities of himself or any company of which he is a shareholder or Director.

4. Should the Respondent fail to make the payment on or before the prescribed date, then the real property shall be sold altogether out of court (“the sale”) and the sale proceeds shall  be distributed as follows:

   (a)First to pay all costs and commissions of the sale;

   (b)Second to pay any capital gains tax owed on the sale;

   (c)Third so much of the payment as is outstanding together with interest at the rate of 8½  (eight-and-a-half) per cent per annum adjusted monthly from the prescribed date to the Applicant;

   (d)Fourth the balance to the Respondent.

5. Pending the payment or completion of the sale:

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

   (b)the Respondent holds his interest in the real property upon trust pursuant to these orders; and

   (c)the Respondent is hereby restrained by injunction from dealing with, transferring or encumbering the real property otherwise than in accordance with or to give effect to these orders.

6. Should the Respondent fail to sign any document or authorise any transaction as may be necessary to give effect to these orders, then pursuant to Section 106A of the Family Law Act 1975 a Registrar of the Federal Circuit Court of Australia is authorised to sign any document or provide any authorisation on his behalf.

7. Pursuant to section 90MT(4) of the Family Law Act 1975 the base amount allocated to the Applicant out of the interest held by the Respondent in the (omitted) Super (Fund) ("the fund") is $19,000.

8. Pursuant to section 90MT(1)(a) of the Family Law Act 1975:

   (a)The Applicant (or her legal representative) is entitled to be paid the amount calculated in accordance with Part VI of the Family Law Superannuation Regulations 2001; and

   (b)The Respondent's entitlements to payments out of his interest in the fund and the entitlement of any other person to whom a splittable payment is to be made is correspondingly reduced.

9. Order 7 has effect from the operative time.

10. The operative time for these Orders is the beginning of the fourth business day after which a sealed copy of these Orders is served on the trustee namely (omitted) Super ("the trustee").

11. The trustee of the fund, the Applicant and the Respondent in accordance with the obligations set out under the Family Law Act 1975, Family Law Superannuation Regulations 2001, the Superannuation Industry (Supervision) 1993 and the Superannuation Industry (Supervision) 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 the payment to the Applicant in accordance with Order 7.

12. Upon receipt by the Respondent of the payment split notice issued by the trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Respondent exercise his election pursuant to Rules 7A.05 and 7A.06 of the Superannuation Industry (Supervision) Regulations 1994 to request the trustee to create a new interest in the Applicant's name in the fund or to roll over or transfer the transferable benefits to such fund/funds of the Applicant's choosing.

13. Until the happening of any of the following (whichever is the earlier):

    (a)The creation of a new interest in the fund, transfer or rollover into another superannuation fund, the payment split created in Order 7; or

    (b)The Applicant satisfies a condition of release in accordance with schedule 1 of the Superannuation Industry (Supervision) Regulations 1994 and is paid the payment split by Order 8;

    (c)the Respondent be and is hereby restrained by himself, his servants and agents, from executing a binding death benefit nomination in favour of any person other than the Applicant or from doing any such act or thing which would render any part of his interest in the fund a non splittable payment within the meanings of Rules 12 and 13 of the Family Law (Superannuation) Regulations 2001.

14. The furniture and chattels in the real property (“the furniture and chattels”) shall be divided equally between the parties by agreement between them, and failing agreement as follows:

    (a)the Applicant and the Respondent shall attend at the real property together on 31 May 2014; and

    (b)Each party shall select in turn on an alternating basis an item (or natural set of items) of their choice until all items are selected and each shall choose an item in turn until all the furniture and chattels have been distributed between them;

    (c)The first choice for the purposes of subparagraph b) hereof shall be determined upon the toss of a coin with the Applicant to toss the coin and the Respondent to call the toss;

    (d)Each party shall be at liberty to attend at the real property for the purposes of implementing this order with a person of their choice.

15. Pending the distribution of the furniture and chattels pursuant to Order 14 hereof, the Respondent is hereby restrained by injunction from selling, leasing, lending, giving away, encumbering or otherwise disposing of any of the furniture and/or chattels.

16. Notwithstanding any other order, each party shall retain personal items and gifts in the real property whether given to her/him by the other party or not.

17. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these 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.

    (b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 65 per cent to the Respondent and 35 per cent to the Applicant;

    (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 shall 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;    

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

    (g)each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

AND THE COURT NOTES

A.That procedural fairness has been afforded to the trustee of the (omitted) Super Fund.

B.

(ii)    The value of the transferrable benefits to be transferred from the Respondent's interest to the Applicant's interest will be calculated by the trustee of the fund in accordance with Regulation 7A.11 of the Superannuation Industry (Supervision) Regulations; and

(iii)     Pursuant to 14F of the Family Law Superannuation Regulations 2001 any payments made from the Respondent's interest in the fund after the trustee has created a new interest in the Applicant's name as contemplated by Order 8 hereof are not splittable payments.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 637 of 2012

MS POST

Applicant

And

MR DONNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a de facto property case in which the value of the property to be distributed is modest, the trust between the parties is non-existent and the conflict level is high.

2. The matter also involves, almost as an afterthought, an oral application by the Applicant for a variation of parenting orders so that she can accompany the parties’ child to his annual medical testing procedures.

Background

1. The parties met in 1998 and began to live together either in November 1999 in the Respondent’s property in Property D (“the Property D property”) (according to the Applicant) or in February 2000 in rented accommodation in Property T, (“Property T”) (according to the Respondent).

2. The Responded was the sole Director and shareholder of (omitted) Pty Ltd, the holding company for the (omitted) Family Trust, and (omitted) Pty Ltd, and it was through these entities, and a company incorporated during the relationship, that he bought and sold properties before and during the relationship.

3. At the date of cohabitation (whichever it was) the Respondent owned through the (omitted) Family Trust[1], subject to mortgage loans, the property at Property R (“the Property R property”) and the Property D property. The Respondent was living in the Property D property and the Property R property was let.

   [1] In oral evidence at trial the Respondent acknowledged that the companies of which he is or was the sole Director and shareholder, are, for all intents and purposes, him, and that he considers their property to be his property and their funds to be his funds. In addition, counsel for the Respondent stated at trial that the Respondent “accepts that whatever orders Your Honour makes will bind him to do the things through the company and the trust”. I therefore treat the companies’ property and funds as being those of the Respondent in these reasons.

4. The property at 18 Property H (“the Property H property”) was purchased by the Respondent, again through the (omitted) Family Trust, in January 2000 and was let.

5. The parties’ son, X (“X”) was born on (omitted) 2000.

6. The family lived together at Property T until August 2001 when they moved into a property purchased by the Respondent in Property E (“the Property E property”). 

7. The Property D property had been sold in May 2000 and it is the Respondent’s evidence that the sale proceeds were applied to the mortgage loans on the Property R and Property H properties.

8. The parties separated in April 2003 when the Applicant moved out of the Property E property and rented a property in (omitted) with X and two of her children from a previous marriage.

9. Within months of that separation the Applicant received a payment of $12,100 from the Respondent pursuant to an agreement signed by the parties on 25 May 2003.

10. The Property E property had been sold in February 2003 and the application of the sale proceeds is a matter of dispute. The Respondent then moved into the Property H property and the Property R property remained let.

11. The parties subsequently reconciled, although there is some significant dispute about when that happened.  What is clear is that by late 2005 the parties and X were living together full time in the Property H property.

12. In December 2008 the Respondent registered the company (omitted) Pty Ltd (“the (omitted) Property”) through which several blocks of land were bought and sold as part of an investment scheme. The Applicant’s involvement in that enterprise and the proceeds, if any, from it are the subject of dispute between the parties.

13. In February 2009 the parties moved out of the Property H property and into leased premises in Property W (“the Property W property”), that property consisting of office space and a residence. The Property H property was again let. The parties and X lived at the Property W property until final separation in late December 2010.

14. The Property W property was the subject of a commercial lease and that lease was unable to be finalised until its natural expiry in 2012. At some unknown time between the date of separation and the expiry of the Property W lease, the Respondent moved back into the Property H property, which is his current address.

15. The Property R property was sold in July 2012 for a sale price of $295,000. After the costs of sale had been paid and the mortgage discharged the sum of $18,178.26 was deposited into the Respondent’s account. A deposit of $14,750 had been paid when the contract of sale was signed. What happened to those monies is also a matter of contention between the parties.

16. In addition, the Respondent bought a share in a racehorse during the relationship but the horse died before it could be raced. Monies allegedly borrowed in order to purchase the racehorse are again a matter of dispute between the parties.

17. The parties’ date of separation in 2010 is another matter in dispute with the Applicant’s evidence being that it was when the Respondent locked her and X out of the Property H property on 29 December of that year, and the Respondent’s evidence being it was in June 2010 when he wrote the Applicant a letter saying the relationship was over. It is common ground that the parties both continued to live at the Property W property until 29 December 2010.

18. The parties also purchased a time share property in (omitted) during the relationship.

19. Where there are matters of fact in dispute and there is little or no evidence before the court in relation to them, it is impossible for there to be any finding of fact.

20. Where the above matters in dispute are not specifically dealt with in these reasons, it is because I can make no finding of fact in relation to them.

21. X is now aged 13 years. He lives with his mother and spends substantial and significant time with his father pursuant to Orders made in this Court on 11 April 2012.

22. The parties’ parenting relationship has not always run smoothly and contravention proceedings filed by the Respondent were heard in November 2013, those proceedings resulting in a finding of contravention against the Applicant and make-up time being ordered.

23. There have also been several sets of Intervention Order proceedings between the parties.

Procedural History

1. These proceedings were begun by an Initiating Application filed 21 December 2012. The Applicant sought the following orders:

   Interim and Final Orders:

   1. That this Honourable Court make orders in regards to property as it deems fit.

   2. That the Applicant be excused from further particularising her application for property until such time as the Respondent’s financial position is known.

   3. That prior to a Conciliation Conference the Respondent is to make full financial disclosure about the following:

   a. All companies and trusts that the Respondent owns or is trustee of, including:

   i. (omitted) Family Trust;

   ii. (omitted) Pty Ltd (‘(omitted) Pty Ltd’); and

   iii. (omitted).

   b. The purchase and sale of Property E;

   c. The purchase and sale of Property H;

   d. The purchase and sale of Property R;

   e. The Time Share with (omitted);

   f. Purchase and sale of blocks of land in Property A and Property O;

   g. Current status of the $60,000 loan given by the Respondent through (omitted) Family Trust to the Respondent’s Brother’s company (omitted) Pty Ltd;

   h. Share in Racehorse;

   i. Office equipment previously located at Property W, now located at Property H;

   j. Any purchase or sale of household furniture by the Respondent;

   k. Household furniture worth approximately $100,000;

   l. Stamp and Coin collection worth approximately $40,000;

   m. Camping Equipment worth approximately $5,000; and

   n. Car (Honda Accord worth approximately $30,000) and trailer (worth approximately $20,000).

   4. That the Respondent immediately return to the Applicant the following:

   a. Personal Computer;

   b. Crystal collection;

   c. Photos and drawings by X;

   d. 3 paintings of (omitted), (omitted) and (omitted);

   e. One Sanyo 52” Flat Screen TV;

   f. One Sanyo 42”Flat Screen TV valued at $3000;

   g. One Pool Table/Boardroom table and 8 chairs, valued at $10,000;

   h. One wooden bookcase, valued at $500;

   i. Front loading washing machine and fridge $1200;

   j. Compaq Computer with Applicant’s personal data and photos, $3500;

   k. Portrait of the applicant pregnant and X's Birth;

   l. One Half of family Photo;

   m. Ski clothing of X and Respondent.

   5. That each party be responsible for equal shared costs in relation to the child’s education, and any medical and dental expenses.

   6. Any other order the honourable Court deems fit.

2. That application was listed for hearing on 28 March 2013 before Federal Magistrate O’Sullivan (as His Honour then was). His Honour set the matter down for a Conciliation Conference on the 21 June 2013 with a Mention Hearing on the same day at the conclusion of the Conference.

3. In his Response filed 3 April 2013, the Respondent sought the following orders:

   Final Orders:

   1. That the Respondent pay to the Applicant the sum of money as deemed just and equitable by this Honourable Court.

   Interim Orders:

   1. The matter be set down for a Conciliation Conference.

4. On 26 April 2013 the Applicant filed an Amended Initiating Application with the following amendments made to her orders sought:

   Final Orders:

   2. That each party be responsible for equal shared costs in relation to the child’s medical and dental expenses.

   3. That the Respondent be responsible for the costs of the child’s school fees and school books.

5. On 21 June 2013 the matter came before the Court after the conclusion of the Conciliation Conference.  The matter did not settle at the Conference and was therefore set down for Final Hearing for two days from 2 December 2013.

6. On 2 December 2013 the Final Hearing proceeded with the Applicant appearing in person and Ms Swart of Counsel appearing for the Respondent.  The only witnesses to give evidence were the Applicant and the Respondent, both of whom underwent cross-examination. The matter proceeded for two days being reserved on 3 December 2013 for final determination.

Issues and Evidence

1. The issues in these proceedings are not complex or unusual. The questions the Court must answer in relation to the property settlement are:

   (a)What is the property of the de facto relationship to be distributed between the parties and what is its value?

   (b)What are the interests of the parties in that property and is it just and equitable to alter those interests?

   (c)If it is just and equitable to alter those interests, what were the contributions, financial and non-financial, direct and indirect, of the parties to that property?

   (d)Should there be any adjustment made to the value of those contributions based on the factors set out in s.90SF of the Family Law Act 1975 (“the Act”)?

   (e)What orders, if any, should the Court make to alter the current interests of the parties in that property so as to provide a just and equitable settlement between them?

1. The evidence upon which the Applicant relies is found in her Affidavits sworn 21 December 2012, 11 June 2013, 11 October 2013 and 28 November 2013[2], as well as her oral evidence given at trial.

   [2] Outline of Case Document of the Applicant filed 15 October 2013

2. The evidence upon which the Respondent relies is found in his Affidavit sworn 18 November 2013[3], and his oral evidence given at trial.

   [3] Outline of Case Document of the Respondent filed 28 November 2013

3. A preliminary matter for decision is whether a de facto relationship existed between the parties and if so, for how long that relationship lasted.

4. The parties’ cohabitation period began either in November 1999 or in February 2000. I do not think anything rests on that difference.

5. Their son X was born on (omitted) 2000.

6. They separated for the first time in March or April 2003.

7. It is the Applicant’s evidence that the parties attended mediation and reconciled some three months after separation, that is, in 2003. She acknowledges that the parties did not live together full-time from that time, but it is her evidence that she and X spent a significant part of each week living with the Respondent at the Property H property until they moved in permanently in late 2005.

8. Her evidence is that the parties then remained together until she and X left the Property W property on 29 December 2010.

9. It is the Respondent’s evidence that after the parties separated in 2003 an agreement was reached whereby the Respondent would pay the Applicant the sum of $12,100, he would transfer a Jeep Cherokee motor vehicle to her worth $11,275, and she would retain her furniture.

10. He annexes to his affidavit sworn 18 November 2013 a copy of the agreement signed by the parties on 25 May 2003. The relevant parts of that agreement read as follows:

    (1)    Unless otherwise mutually agreed in the future, in written agreement, it is understood that both parties to this agreement are separated, and that the terms of this agreement will apply regardless of how the personal circumstances of each party may change.

    (2)    A cash settlement of $12,100 will be made to Ms Post.

    (3)    Further to this, the following items will pass into the possession of Ms Post. Jeep Cherokee (omitted), washing machine, refrigerator, and double bed.

    (4)    Upon signing this agreement hereunder Ms Post, nee (omitted) will not make any further claim, nor undertake or initiate any legal action against Mr Donner, the estate of Mr Donner, (omitted) Pty Ltd, (omitted) Pty Ltd.

11. The Applicant acknowledges that she received the sum of $12,100 pursuant to that agreement but it is her evidence that those monies were spent partly on finding a home for her and her children and partly on a combined family holiday to (country omitted) and the (country omitted) after reconciliation three months later.

12. Evidence in the form of the Applicant’s passport was adduced to support that claim, the passport showing that the Applicant had entered the (country omitted) in July 2003. However, that evidence does not in my view provide definitive proof in relation to whether the parties were in fact reconciled in an ongoing sense at that time.

13. It is the Applicant’s evidence that the Jeep Cherokee was never transferred to her name. In October 2013 the Applicant provided a Notice to Produce to the Respondent in relation to several matters, including the Jeep Cherokee, but no definitive evidence in relation to that matter was adduced at trial.

14. I therefore find that it is more probable than not that the Applicant never took ownership of the Jeep Cherokee as part of the informal[4] settlement between the parties in 2003.

    [4] “Informal” in the sense that the separation agreement is not a Financial Agreement under s.90UD of the Act as it predates that section. Nor does the agreement have effect under Part IX of the Property Law Act 1958 (Vic) (since repealed) which governed de facto property matters in Victoria at the time the agreement was signed.

15. The Respondent’s evidence is that the parties were separated from April 2003 until late in 2005 when the Applicant and X moved into the Property H property.

16. There is one piece of independent evidence in relation to this particular dispute.

17. In January 2005 the Respondent filed an Application for Final Orders, an Application in a Case and a supporting Affidavit with the Federal Magistrates Court (as it then was) for parenting orders in relation to X.

18. On 16 March 2005 the Respondent went to a police station and swore an Affidavit of Applicant attached to an Application for Consent Orders. The Applicant swore an Affidavit of Respondent on 17 March 2005 at a different police station and that Application was then filed with the court.

19. On the Application for Consent Orders the Respondent provides his address as a post office box in (omitted) and the Applicant’s address is stated to be in (omitted). The date of separation of the parties is given as 3 April 2003.

20. Orders were made on 21 March 2005 before Federal Magistrate Riethmuller (as His Honour then was) which provided for a shared care regime such that X lived with his mother on Saturday, Sunday, Monday and Tuesday nights and with his father on Wednesday, Thursday and Friday nights

21. These orders, which I note were made by consent in chambers after a signed Minute of Consent Orders was received by the Court, made provision for X to attend his current kindergarten until the end of 2005, but specifically reserved the question of which school he would attend, presumably the following year.

22. It is difficult to see why such orders would have been made if the parties were not separated at that time.

23. On balance, the evidence of the orders of 21 March 2005, and more particularly of the Application for Consent Orders filed in those proceedings, satisfies me that the parties were separated when those proceedings were issued in January 2005 and up to the date on which the orders were made.

24. That is a period during which the Applicant claims the parties had reconciled, while the Respondent claims that they remained separated. Where the evidence of the Applicant and the Respondent conflict on this specific issue I prefer the evidence of the Respondent.

25. In those circumstances I find that the parties began their relationship in 1998 and cohabited first from February 2000 to April 2003. They reconciled and began cohabiting again full time in late 2005, finally separating in the second half of 2010.

26. The period of separation or non-cohabitation having been some 2½ years, and an informal separation agreement having been signed and partially effected by the parties early in the separation period, it is difficult to see the relationship as having lasted continuously from 1999/2000 to 2010 for the purposes of these proceedings.

27. On balance, I find that the parties were engaged in a de facto relationship during two separate cohabitation periods, one lasting from February 2000 until April 2003, a period of about three years during which X was born, and the second lasting from late 2005 until the second half of 2010, a period of about five years.

28. Therefore, the whole de facto relationship lasted about ten-and-a-half years, with a two-and-a-half year period of separation between April 2003 and late 2005.

A. What is the property of the de facto relationship to be distributed between the parties and what is its value?

1. The evidence in relation to the property of this relationship is difficult to unpack.  That is because only the Respondent has had access to all the documents in relation to various property and chattels transactions, and while about one thousand documents were made available to the Applicant at the office of the Respondent’s solicitor, her oral evidence was that she simply could not afford to copy those documents relevant to her case.

2. That situation, she submits, has left her at a distinct disadvantage in the proceedings. One cannot help but sympathise with her plight and I note that the Applicant, who works part-time and has the majority care of X, has represented herself throughout these proceedings.

3. The Applicant sets out the following as the property of the relationship in her Outline of Case Document filed 15 October 2013:

   I. Property E

   2. Land in Property A

   3. Land in Property P

   4. Property R, Victoria

   5. Property D

   6. Property H, Victoria

   7. Household furniture and office equipment currently stored in Property H, Victoria

   8. Time share with (omitted)

   9. Coin and stamp collection

   10. Applicant Mother's superannuation ((omitted))

   11. Respondent Father's superannuation

   12. Respondent Father's car (Honda Accord (omitted))

   13. Interest in (omitted) Pty Ltd and (omitted) Pty Ltd

   14. Share in a racehorse

   15. Applicant Mother's (omitted) Bank Visa Card liability

   16. Respondent Father's (omitted) Bank Visa Card liability

   17. Respondent Father's income tax liability

   18. Respondent Father's (omitted) debt

   19. Respondent Father's (omitted) Racing debt

   20. Respondent Father's (omitted) Taxation debt

4. Many of those items of property no longer exist as property of the parties, and the Applicant provides no valuations for any of them.

5. The Respondent’s Outline of Case Document sets out the property to be distributed thus:

   • Property H $274,000

   • Superannuation - Respondent De Facto Husband $123,736

   • Superannuation - Applicant De Facto Wife $21,000

   • Timeshare $3,500

   • Motor Vehicle - Honda (omitted) $15,399

6. On balance, after hearing/reading all evidence in relation to these matters, including the Financial Statements sworn by the parties in these proceedings, I find that the current property of the relationship to be distributed between the parties, and its value, is as follows:

   Assets

   The Property H property  $280,000

   The Honda motor vehicle  $15,400

   Household contents (R)  $12,000

   Household contents (A)  $ 3,000

   Timeshare  $8,000

   Applicant’s superannuation  $21,000

   Respondent’s superannuation  $123,736

   Total assets  $463,136

   Liabilities   

   Capital Gains tax owed on the sale of the

   Property R property  $32,500

   The Respondent’s credit card debt  $13,084

   The Applicant’s credit card debt  $7,000

   The Respondent’s income tax debt  $32,786

   Training fees owed in relation to the racehorse     $2,766

   Total liabilities  $88,136

   Net assets  $375,000 

B. What are the interests of the parties in that property and is it just and equitable to alter those interests?

1. Section 90SL of the Act provides the power for the court to declare what interests each party holds in property.

2. This part of this judgment is perhaps the simplest to calculate.

3. The Applicant owns only her superannuation entitlements worth $21,000 and household contents worth $3000. She has a credit card debt of $7000.

4. All other assets and liabilities of the parties belong to the Respondent.

5. Section 90SM(3) of the Act states that the court must not make an order under this section (that is, an order for property settlement between de facto partners) unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

6. Section 90SM(3) is identical in its terms to s.79(2) of the Act, which applies to married couples.

7. In relation to that section, in Stanford & Stanford[5], the High Court made clear that this decision must be made before any consideration of the matters set out in s.90SM(4) is undertaken.

   [5] Stanford & Stanford (2012) FLC 93-495

8. In Stanford the High Court further said, at paragraph 42:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.

9. In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[6] . While the parties to the current proceedings were not married, the principles set out in Stanford and Bevan apply equally to de facto relationships.

   [6] Bevan & Bevan [2013] FAMCAFC 116 paragraph 70

10. In this case, the parties were in a de facto relationship for at least 8 years. They have a child who has not yet attained the age of 18 years.

11. Property was bought and sold during the relationship such that the parties now have an interest in the Property H property as well as various other assets and significant superannuation entitlements.

12. It is clear that there cannot be common use of that property now that the relationship is over.

13. In those circumstances I find that it is just and equitable in all the circumstances to alter the property interests of the parties.

C. What were the contributions, financial and non-financial, direct and indirect, of the parties to that property?         

1. Section 90SM of the Act gives the Court the power to alter the interests of de facto parties in property.

2. Like the power provided in s.90SL, this power is subject to the provisions of ss.90SB and 90SK of the Act.

3. Section 90SB states that the Court must be satisfied as to one of the following matters before it can make an order under s.90SM:

   a)That the period, or the total of the periods, of the de facto relationship is at least two years; or

   b)That there is a child of the de facto relationship; or

   c)That:

   i)The party to the de facto relationship who applies for the order or declaration made substantial contributions of the kind mentioned in S90SM(a), (b)or (c); and

   ii)the failure to make the order or declaration would result in serious injustice to the applicant; or

   d)That the relationship is or was registered under a prescribed law of a State or Territory.

4. Section 90SK(1) states that the court may make an order under s.90SM in relation to a de facto relationship only if the court is satisfied:

   (a) that either or both of the parties to the de facto relationship were ordinarily resident in participating jurisdiction when the application for the declaration or order was made (the application time) and

   (b) that either:

   (i) both parties to the relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   in one or more states and territories that are participating jurisdictions at the application time;

   or that the alternative condition in subsection (1A) is met.

5. Section 90SK(1A) states that the alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction in the relationship broke down.

6. In this case the provisions of s.90SB are clearly satisfied, and, as the State of Victoria is a participating jurisdiction, the provisions of s.90SK are also satisfied. In those circumstances the court clearly has the power to make orders under s.90SM.

7. The relevant parts of s.90SM read as follows:

   Section 90SM(1) In property settlement proceedings after the breakdown of a defacto relationship, the court may make such order as it considers appropriate:

   (a)  in the case of proceedings with respect to the property of the parties to the defacto relationship or either of them--altering the interests of the parties to the defacto relationship in the property;

   including:

   (c)  an order for a settlement of property in substitution for any interest in the property; and

   (d)  an order requiring:

   (i)  either or both of the parties to the defacto relationship

   to make, for the benefit of either or both of the parties to the defacto relationship or a child of the defacto relationship, such settlement or transfer of property as the court determines.

8. The matters to be taken into account when deciding what orders ought to be made in a de facto property settlement are set out in s.90SM(4), which I set out here in full:

   Section 90SM (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:

   (a)  the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

   (i)  to the acquisition, conservation or improvement of any of the property of the parties to the defacto relationship or either of them; or

   (ii)  otherwise in relation to any of that last-mentioned property;

   whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

   (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the defacto relationship, or a child of the defacto relationship:

   (i)  to the acquisition, conservation or improvement of any of the property of the parties to the defacto relationship or either of them; or

   (ii)  otherwise in relation to any of that last-mentioned property;

   whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

   (c)the contribution made by a party to the defacto relationship to the welfare of the family constituted by the parties to the defacto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and

   (d)  the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and

   (e)  the matters referred to in subsection 90SF(3) so far as they are relevant; and

   (f)  any other order made under thisAct affecting a party to the de facto relationship or a child of the de facto relationship; and

   (g)  any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.

   Section 90SM(4)(a)-(c)

9. In relation to the contributions made by each of the parties to the property of the relationship, when I consider the entirety of the evidence, documentary and oral, I find that it indicates that the Applicant made approximately 10 per cent of the contributions to the business enterprises controlled by the Respondent and 50 per cent of the contributions to the welfare of the family. Overall, I quantify the Applicant’s contributions to the property of the relationship, financial and non-financial, at 30 per cent.

10. It is the Applicant’s evidence that she was working full time until X’s birth and that after his hospitalisation on an unnamed date she continued to work part-time. It is her evidence that her wages were applied to family expenses, that she also performed tasks in the Respondent’s business and that she performed the majority of the homemaker and parent tasks in the family.

11. I will return to the issue of the Applicant’s part in the Respondent’s business enterprises shortly but I can find no evidence to contradict her claim to having performed the majority of the homemaker and parent contributions to the family’s welfare or to having applied her wages to family expenses.

12. The Respondent’s evidence is that while the Applicant worked for most of the relationship she was not involved in his business enterprises and therefore made no contribution to them. It is his further evidence that he was an active parent to X during the relationship.

13. The evidence of the orders made 21 March 2005 together with subsequent parenting orders made in 11 April 2012 makes clear that the Respondent is significantly involved in X’s life.

14. There is little if any evidence of the Respondent’s contributions to the household other than as a parent to X, although the Applicant deposes that she and the Respondent paid for the household expenses roughly equally[7].

    [7] The Affidavit of the Applicant sworn 21 December 2012 paragraph 23

1. In relation to the Applicant’s alleged contributions to the Respondent’s business ventures, it is her evidence that she was mostly ignorant about the detail of the circumstances under which the properties owned by (omitted) Pty Ltd were bought, sold and/or let.

2. However, it is her adamant evidence that she was fully aware of and involved in the (omitted business) enterprise in relation to the purchase and sale of various blocks of land.

3. It is the Applicant’s evidence that she assisted in the business conducted by (omitted business) in that she assisted in the office, preparing and binding contracts and performing other administrative tasks.  

4. She gave evidence at trial of having prepared and physically bound eight contracts of sale for the enterprise, which involved the purchase and sale of blocks of land in outer Melbourne suburbs to developers. Indeed she described that enterprise as a partnership.

5. Her evidence on this issue was detailed and displayed knowledge of the mechanics of that enterprise which in my view goes beyond that of a mere observer.

6. The Applicant tendered an email to the Respondent from Harry Singer and Associates, a law firm in (omitted), dated 10 December 2010 which indicates that the settlement of sale of four blocks in Property A would take place on 14 and 16 December 2010.

7. It is the Applicant’s evidence that the net return on each of these transactions was at least $18,000. It is her evidence that she does not know how those monies were applied because the Respondent controlled all monies passing through (omitted business).

8. The Respondent’s evidence is that the Applicant did not perform any tasks in the business and that the purchase and sale of the blocks of land was his sole enterprise.

9. It is his evidence that (omitted business) bought and sold only three blocks of land in Property A, and that the net profit from those three properties was $48,316.

10. It was his evidence at trial that the fourth block mentioned in the email from Harry Singer & Associates in December 2010 was actually bought by his brother.

11. I note that significant parts of the evidence given by the Respondent in these proceedings involve his brother, but that the brother himself swore no Affidavit and did not give evidence at trial. Those parts of the Respondent’s evidence that refer to debts owed to his brother are therefore not corroborated.

12. On the whole of the evidence before me on this issue I find that at least four blocks of land were bought and sold by (omitted business) in 2010 or thereabouts and that it is probable that there were more. I find that the average net profit from that enterprise was approximately $16,110 per block sold. The net profit from that whole enterprise was therefore at least $64,440, to which both parties contributed, although it is not possible to say how those monies were applied.

13. On balance I am persuaded that while the Respondent was clearly the major player in the enterprises of (omitted) Pty Ltd and (omitted business), the Applicant too made contributions to those enterprises in the terms she describes. I find that the contributions of the Applicant amount to 10 per cent of the Respondent’s business ventures and those of the Respondent to 90 per cent.

14. Overall, I find that the Applicant made 30 per cent of the contributions to the property of the relationship in that she contributed her wages to the joint expenses of the parties, she performed the majority of the homemaker and parent contributions and she assisted in the Respondent’s business ventures.

15. The Respondent owned two properties at the commencement of the relationship, those properties providing the basis for future property transactions and acquisitions. It is clear that he provided the vast majority of the financial contributions to those properties. He shared equally in the household expenses and performed some of the parent tasks.

16. His contribution to the property of the relationship is therefore set at 70 per cent.

    Section 90SM(4)(d).

17. None of the Orders I propose to make will have any effect on a party’s earning capacity.

    Section 90SM(4)(f).

18. The only other orders made under this Act affecting a party to the de facto relationship or a child of the de facto relationship are the parenting orders made in this court on 4 April 2012 and 11 November 2013. None of those orders has any bearing on these deliberations.

    Section 90SM(4)(g).

19. The Respondent currently pays child support for X at a minimal rate although he provided evidence at trial that he has paid larger amounts in the past. He has a current child support debt said to be in the order of $5,000.

20. As a result of the sale of the Property R property in 2012, the Respondent’s income for that year, based on the capital gain from the sale, was increased for taxation purposes. The impact of that was that the assessment of his child support liability also increased, a situation which the Respondent is seeking to rectify through the Department of Human Services (Child Support).

21. What is clear in this case is that child support will continue to be an issue between the parties for as long as the Respondent does not have salary-based employment.

22. I will deal with the specific application made by the Applicant in relation to child support matters later in these reasons.

C. Should there be any adjustment made to the value of those contributions based on the factors set out in s.90SF of the Family Law Act 1975 (“the Act”)?

1. Section 90SF(3) states as follows, and I will address each matter in turn:

   Section 90SF(3) The matters to be so taken into account are:

   (a) the age and state of health of each of the parties to the defacto relationship;

2. The Applicant is 53 years old and the Respondent is 49. There is no evidence before me that either party suffers from any serious health issues.

   (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

3. The Applicant works part-time as a (occupation omitted) and earns $370 per week, or $19,240 per year. She also receives a part Parenting Payment from Centrelink in the sum of $130 per week and child support of $34.50 per week.

4. She owns no real property and rents her accommodation, paying $350 per week. Her evidence is that she has approximately $21,000 in superannuation benefits.

5. The Respondent stated in evidence that he has been restricted to work as (omitted) since he was made redundant from his previous employment, where he worked after (business omitted) failed in 2012. The Applicant’s evidence is that she believes that the Respondent works for his brother. I can make no finding of fact on that issue.

6. The Respondent’s Financial Statement sworn 28 March 2013 states that he receives income of only $150 per week, presumably for his (work omitted). His expenditure, including $27 per week in child support for X, is stated to be $205.

7. The Respondent owns the Property H property outright through (omitted) Pty Ltd and deposes to having about $123,000 in superannuation entitlements. The Property H property having no mortgage attached to it, he pays no weekly accommodation costs.

8. There is no evidence that either party’s mental or physical capacity to engage in gainful employment is impaired.

   (c)  whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years;

9. X is thirteen years old and lives with his parents pursuant to Orders made by consent in this Court in April 2012.  Those orders provide for him to live with his mother and spend time with his father on a regime of five nights per fortnight, half school holidays and on special days such as Christmas and birthdays.

10. While both parents have the care and control of X in substantial terms, it is the Applicant who bears the majority of that care. 

    (d)  commitments of each of the parties that are necessary to enable the party to support:

    (i)  himself or herself; and

    (ii)  a child or another person that the party has a duty to maintain;

11. Both parties must support themselves. The mother must also provide most of the material support to X, with the assistance of $34.50 per week in child support payments from the Respondent and with the Respondent supporting X while he spends time with him.

12. It is the Applicant’s evidence that she pays for all of X’s medical, dental and educational expenses.

    (e)  the responsibilities of either party to support any other person;

13. Not relevant

    (f)  subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:

    (i)  any law of the Commonwealth, of a State or Territory or of another country; or

    (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

    and the rate of any such pension, allowance or benefit being paid to either party;

14. As already stated, the Applicant receives a part Parenting Payment of $130 per week from Centrelink.

15. There is no evidence that the Respondent receives or is eligible for any Centrelink benefit.

    (g)  a standard of living that in all the circumstances is reasonable;

16. The Applicant claims that her standard of living has dropped considerably since the relationship broke down at the end of 2010. That occurs in the wake of most relationship breakdowns. It is simply not possible to maintain the same standard of living in two houses when a family has previously been reliant on the income of two people unless their income is significantly high.

17. The Applicant’s current financial situation, where she deposes to the above income and expenditure, and to a credit card debt of $7,000, results in a struggle for her to make ends meet. 

18. Similarly, the financial position deposed to by the Respondent, where despite the fact that he pays no weekly accommodation costs, his expenses outweigh his income, results in a weekly deficit of about $55. In addition, he has an income tax debt to the Australian Taxation Office of $32,786. 

    (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

19. Not relevant

    (i)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;

20. Not relevant

    (j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

21. Not relevant

    (k)  the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

22. The relationship lasted about ten-and-a-half years with a separation of up to two-and-a-half years in the middle. There is no evidence before me that the length of the relationship has in any way affected either party’s earning capacity.

    (l)  the need to protect a party who wishes to continue that party's role as a parent;

23. The Applicant’s evidence is that X suffers from a condition called chronic recurrent multifocal osteomyelitis, which requires constant monitoring and a major annual check-up at the (omitted) Hospital.

24. It was her evidence that she gave up working full-time when X was hospitalised early in his life and that she has worked part-time and cared for X since then.

25. Parenting orders already discussed in these reasons provide for the Applicant to be the majority care provider for X and I take her wish to continue to be X’s major carer into account in my considerations.

    (m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

26. There is no evidence before me that either party is cohabiting with another person.

    (n)  the terms of any order made or proposed to be made under section 90SM in relation to:

    (i)  the property of the parties; or

    (ii) vested bankruptcy property in relation to a bankrupt party;

27. I propose to make an order that the Respondent pay the Applicant a sum of money and that upon payment, she relinquish all her right title and interest to any property of the Respondent.

    (o)  the terms of any order or declaration made, or proposed to be made, under this Part in relation to:

    (i)  a party to the subject de facto relationship (in relation to another de facto relationship); or

    (ii)  a person who is a party to another defacto relationship with a party to the subject defacto relationship; or

    (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);

28. Not relevant.

    (p)  the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:

    (i)  a party to the subject de facto relationship; or

    (ii)  a person who is a party to a marriage with a party to the subject de facto relationship; or

    (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);

29. Not relevant.

    (q)  any child support under the Child Support (Assessment) Act 1989that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship;

30. I have dealt with issues of child support insofar as they are relevant to the property proceedings in paragraphs 113-115 above.

    (r)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

31. The animus between these parties is palpable, and the contempt the Respondent has for the Applicant was obvious throughout the trial.

32. When she was being cross-examined by his counsel, the Respondent gesticulated, ostentatiously took notes and rolled his eyes to the extent that at one point I had to admonish him for attempting to intimidate her from his seat in the body of the court. He struck me as a somewhat mischievous and even vindictive man who took pleasure in the discomfort and distress of the mother of his son.

33. In the witness box, he presented as a jovial man, eager to please and impress the Court, but there was in my view an undercurrent of performance about that presentation.

34. There are allegations of family violence on both sides of this relationship and Intervention Orders have been made by the Magistrates Court of Victoria against both parties since the end of 2010.

35. The Applicant expressed a fear of the Respondent that appeared genuine, although the Respondent would not accept that she was afraid of him. I saw no indication whatsoever of any correlating fear of the Applicant in the Respondent.

36. The Applicant gave evidence at trial of the Respondent having complained to police about what she sees as minor infringements of the Intervention Order against her, and that she would be attending the Magistrates Court in March 2014 to defend the latest of these charges.

37. The Applicant sees herself as the victim in those proceedings and believes that the Respondent has made the allegations not because he is afraid of her, but because he wants to continue to harass her and make life difficult for her.

38. Indeed that was a common underlying theme in her evidence throughout the trial.

39. Her demeanour in court was one expressive of frustration at the Respondent’s refusal to acknowledge her contributions during the relationship and at her inability to access documents which she felt would support her case.

40. It appeared to me that she did not fully understand the scope of the proceedings, wanting to follow every tiny detail of evidence, many of them irrelevant to the Court’s task, to its end, although in the circumstances she acquitted herself well as a self- represented litigant.

41. The Respondent was unable to accept that the Applicant had made any contribution to the property of the relationship through her assistance in his business, however small. That position does him little credit in my view.

42. He understands that the outcome of these proceedings will be that he is ordered to pay a sum of money to the Applicant, but he appeared to be making every effort to minimise the amount of that payment as much as possible.

43. I acknowledge that that is not an unusual position for people in his situation to take.

44. The parties were civil when speaking directly to each other but that did not mask the conflict that appears to permeate their relationship, particularly their relationship as X’s parents.

45. It is to be hoped that the conclusion of these proceedings will lead to some settling of that conflict, although given the history, I have little confidence that these will be the final proceedings between the parties in this court. And that is an issue that will no doubt have a significant impact on X’s wellbeing into the future.

    (s)  the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship;

46. Not relevant.

    (t)  the terms of any financialagreement that is binding on a party to the subject de facto relationship.

47. Not relevant.

48. On the basis of all these factors, and particularly the fact that she has the majority care of the parties’ son, who has some health issues that will need care for the foreseeable future, I find it appropriate to make an adjustment to the Applicant of five per cent of the property.

49. I therefore find that a settlement which allows for 65 per cent of the property to be retained by the Respondent and 35 per cent to be retained by the Applicant is appropriate in this case.

E. What orders, if any, should the Court make to alter the current interests of the parties in that property so as to provide a just and equitable settlement between the parties?

1. The net value of the property in this case is $375,000.

2. 65 per cent of that sum is $243,750. That is the value of the property to be retained by the Respondent.

3. The value of the property to be retained by the Applicant is therefore $131,250.

4. The Respondent currently has in his possession the following property:

   Assets

   The Property H property   $280,000

   The Honda motor vehicle  $15,400

   The Timeshare  $8,000

   Household contents  $12,000

   His superannuation  $123,736

   Total assets  $439,136

   Liabilities   

   Capital gains tax on the Property R sale        $32,500

   His income tax debt  $32,786

   His credit card debt  $13,084

   Outstanding training fees  $2,756

   Total liabilities  $81,136

   Net Assets  $358,000

5. The Applicant currently has Superannuation of $21,000, household contents worth $3,000 and a credit card debt of $7,000. She therefore has net assets of $17,000.

6. In these circumstances, the Respondent will need to transfer property worth $114,250 to the Applicant to bring her total net property to $131,250 and his to $243,750.

Orders the Applicant seeks in relation to child support matters

1. The Applicant has sought in her Amended Application filed 26 April 2013 orders as follows:

   2.  That each party be responsible for the equal shared costs in relation to the child’s medical and dental expenses.

   3. That the respondent be responsible for the costs of the child’s school fees and school books.

2. The Applicant complains that the Respondent does not pay what she considers to be his fair share of the above-mentioned expenses. It is her evidence that she pays for all X’s medical, dental and educational expenses with no contribution from the Respondent. As I have already noted in these reasons, child support is an ongoing issue between the parties.

3. While the orders sought in her amended application are not in the usual form, I will treat that application as though it were an application for a departure order under the Child Support (Assessment) Act 1989.

4. However, while under cross-examination by counsel for the Respondent at trial the Applicant conceded that she was unable to make an application for a departure order without having first exhausted the objection processes available through the Department of Human Services (Child Support).

1. As those processes have not been exhausted I will make no orders in relation to that application.

The Applicant’s oral application for variation of parenting orders.

1. At trial, the Applicant made an oral application seeking a variation in the parenting orders made on 11 April 2012 which would allow her to attend the (omitted) Hospital in January each year to accompany X for certain annual medical tests. No objection was made to the making of that application.

2. As I have already stated in these reasons, X suffers from chronic recurrent multifocal osteomyelitis, a rare and painful auto-inflammatory disease believed to be inherited.

3. It is the Applicant’s evidence that X is required to attend the (omitted) Hospital in early January each year for the purposes of various medical tests, including an MRI with contrast, X-Rays and blood tests.

4. Parenting orders made on 4 April 2012 provide for X to live with his father “for one half of the long summer holidays commencing on Boxing Day”.

5. The Applicant complains that the Respondent refuses to allow her to accompany X to his annual day of testing because that day is always during the Respondent’s time with X.

6. The Respondent provided no evidence in relation to the issue at trial and it was not mentioned by his counsel in her submissions.

7. However, in his Affidavit sworn 23 September 2013 in support of his contravention application, the Respondent deposes to concerns that the Applicant did not want him to attend the (omitted) Hospital for a different appointment on 12 September 2013.

8. That day was a Thursday, a day on which X is to spend time with the Respondent from after school until before school on Friday pursuant to the Orders of 11 April 2012.

9. Text messages annexed to the Respondent’s Affidavit of 23 September 2013 display the Applicant’s concerns about the potential for conflict between the parties should the Respondent attend on 12 September. The Respondent’s response to those concerns was to allege that the Applicant had threatened to accuse him of family violence if he attended on that day.

10. That there is a dispute about this issue at all speaks volumes about the parties’ ability (or inability) to co-parent X in his best interests.

11. It is my view that issues such as major medical check-ups and appointments are governed by parental responsibility orders rather than orders governing a child’s living arrangements and that both parents ought to attend. I note that in this case the parties have equal shared parental responsibility for X pursuant to the Orders of 11 April 2012.

12. I will therefore make an order that the Applicant be at liberty to accompany X on the days in January each year when he attends the (omitted) Hospital for his annual check-up and testing.

Conclusion

1. On the basis of all the material before me and taking into consideration all the matters set out in these reasons, I will make orders that provide for a settlement that reflects a 65/35 division of the property of the relationship.

2. This will be effected by the payment of a sum of cash to the Applicant by the Respondent with a superannuation split making up the remainder and I therefore make the orders set out at the beginning of these reasons.

3. I will make a further order that allows the Applicant to accompany X to his annual medical check-up and testing.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  18 March 2014