RAMIREZ & RAMIREZ

FAMILY COURT OF AUSTRALIA

RAMIREZ & RAMIREZ

[2014] FamCA 153

FAMILY LAW – CHILDREN – Child has increased needs in respect of various ongoing health conditions and physical difficulties – Father seeks increased time with child including overnight time – Whether the father’s mental health condition affects his parenting capacity and creates a risk of harm to the child

FAMILY LAW – PROPERTY – Dispute as to valuation of certain items – Dispute as to contributions – Husband’s failure to make full and frank disclosure of post-separation assets and income – Whether there should be an adjustment in respect of contributions or factors set out in Section 75(2) of the Family Law Act 1975 (Cth) – Just and equitable

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 79(4), 75(2)

AJO & GRO (2005) FLC 93-218, [2005] FamCA 195
Bevan & Bevan [2013] FamCAFC 116
G & C [2006] FamCA 994
Kowaliw & Kowaliw (1981) FLC 91-092
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92
Stanford v Stanford (2012) 247 CLR 108
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Ms J Ramirez

RESPONDENT:

Mr Ramirez

FILE NUMBER:

PAC

2655

2010

DATE DELIVERED:

18 March 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 – 17 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Michael Vassili Lawyers

Orders

Parenting

All previous Orders in respect of the child E, born … 2001, (“the child”) are discharged.
The mother is to have sole parental responsibility with respect to day-to-day and long-term matters relating to the education and health care of the child, and the parties are to otherwise share parental responsibility in respect of all other long-term decisions regarding the child.
The mother is to keep the father advised from time to time, and as soon as practicable of:
(a)Any major long-term decisions she makes regarding the child in respect of education and health care;
(b) The child’s treating health care professionals; and
(c)Any treatment for any condition other than a common ailment required for the child.
The child is to live with the mother.
Until the father provides a report from his treating psychiatrist that he is responsive to his prescribed medication and that his symptoms in relation to his bipolar disorder are controlled, the child is to spend time with the father from 9.00 am until 6.00 pm each Saturday, with such time to be supervised by the paternal aunt, Ms K Ramirez.
The father is to continue to provide a report to the mother each six (6) months, following the provision of the first report as per Order 5, from his treating medical practitioner confirming the following:
(a)That his symptoms of bipolar disorder are controlled; and
(b)That he is complying with all reasonable treatment directions including prescribed medication, if any.
In the event the father fails to comply with Order 6, his unsupervised time with the child is to be suspended and the regime in place under Order 5 is to operate.
Upon the father providing a report as required under Order 5 and so long as he continues to provide the reports required under Order 6, the child is to spend unsupervised time with the father as follows:
(a)In the first three (3) month period, each Saturday from 9.00 am to 6.00 pm.
(b)Thereafter and for a three (3) month period:
(i)On the first, third and fourth Saturday of each month from 9.00 am to 6.00 pm; and
(ii)On the second weekend of each month from 4.00 pm on Saturday to 6.00 pm on Sunday.
(c)In addition to time as per Orders 8(a) or (b) above, during school holidays from 10.00 am on Wednesday to 6.00 pm on Thursday.
(d)Thereafter:
(i)Each alternate weekend from 9.00 am on Saturday to 6.00 pm on Sunday; and
(ii)In addition, during school holidays, for a period of three (3) consecutive nights in each fortnight as agreed between the parents, and failing agreement from Tuesday 9.00 am to Friday 6.00 pm in the alternate week to the weekend in Order 8(d)(i).
(e)On Christmas Day in even numbered years from 10.00 am to 3.00 pm and in odd numbered years from 3.00 pm to 8.00 pm, unless the child is otherwise spending time with the father under these Orders.
(f)On Easter Sunday in even numbered years from 10.00 am to 3.00 pm and in odd numbered years from 3.00 pm to 8.00 pm, unless the child is otherwise spending time with the father under these Orders.
(g)On Father’s Day from 10.00 am to 6.00 pm, unless the child is otherwise spending time with the father under these Orders.
(h)On the child’s birthday from 4.00 pm to 7.00 pm, or as otherwise agreed for a three (3) hour period, unless the child is otherwise spending time with the father under these Orders.
(i)On the father’s birthday on a non-school day from 10.00 am to 6.00 pm, or as otherwise agreed.
The father’s time pursuant to these Orders is to be suspended on:
(a)Mother’s Day;
(b)The child’s birthday from 4.00 pm to 7.00 pm, or as otherwise agreed for a three (3) hour period; and
(c)The mother’s birthday.
For the purpose of these Orders in respect of the father’s time, the father is to collect the child from and return the child to the mother’s residence, or such other place as agreed between the parties. Whilst the father’s time is to be supervised pursuant to Order 5, the paternal aunt is to accompany the father to and from changeover.
Whilst the child is in the father’s care:
(a)In the event that the child has a medical appointment, the father is to ensure that she attends such appointment.
(b)In the event that the child is unwell and requires medical attention, the father is to forthwith notify the mother by telephone or text message, and is to follow instructions given by the mother in respect of the child’s medical needs.
(c)The father is to ensure that the child undertakes any exercises that she is required to undertake, and for the purpose of this Order, the mother is to provide to the father details in writing as to the nature of the exercise required to be undertaken, including frequency and duration of same.
Each party is to ensure that the child is able to telephone the other parent whilst she is in their care.
The mother is to authorise the school attended by the child to provide the father to obtain copies of school reports and notices in respect of the child, including copies of school photographs, at his expense.

Property

Within two (2) months from the date of these Orders, the husband is to remove all items related to the husband’s business including second hand goods and stock (the “stock-in-trade”) from the property known as and situate at I Street, Suburb B NSW 2… (“the Suburb B property”), and he is to be solely liable for any costs arising from removing such items from the property.
After the expiration of the two (2) month period as per Order 14 above, the wife is appointed trustee for the sale of I Street, Suburb B, NSW 2… (folio identifier …) and such property hereby vest in the wife as trustee for its sale and in respect of the interest of the husband in the Suburb B property with the ordinary power of a Trustee to, amongst other things, do all acts and things and sign all deeds, documents and instruments so as to effect the sale of the Suburb B property.
By way of implementation of Order 15 the wife:
(a)Shall have the powers of a Trustee for sale and shall sell the Suburb B property by private treaty or public auction.
(b)May incur advertising expenses in respect of the proposed sale of the Suburb B property to such amounts as may be advised by the agent acting on the sale of the listing agent.
(c)May incur costs for the cleaning, redecorating or improving the presentation of the Suburb B property to such an amount as may be advised by the agent acting on the sale of the Suburb B property.
(d)May at her discretion list the Suburb B property for sale with an agent and may enter into appropriate agency agreement/s with such agent/s.
(e)Is authorised at her discretion to nominate sale prices for the Suburb B property as she may be advised by the listing agent/s for the Suburb B property from time to time.
(f)May retain a solicitor of her choice to act on the sale.
(g)Is authorised to enter into contracts for the sale of the Suburb B property on such terms as advised by the solicitor acting on the sale.
The wife is to do all acts and things necessary to prepare the Suburb B property for sale, including engaging stock removalists and such other persons/organisations as deemed necessary by the wife to undertake the cleaning and refurbishing of the external and internal of the Suburb B property, in general and particularly in the event of the husband failing to remove his items from the property as per Order 14, and the costs associated with the removal of the husband’s stock-in-trade at the Suburb B property shall be deducted from the husband’s share of the net sale proceeds. Any sums received on the sale of the husband’s stock-in-trade shall be included in the proceeds of sale of the Suburb B property.
The parties are to do all things and sign all documents necessary to cause the property to be distributed in the following manner and priority:
(a)In payment of agents fees and commissions in respect of the sale;
(b)In payment of legal costs and disbursements in respect of the sale;
(c)In payment of advertising costs in respect of the sale;
(d)In payment of all council and water rates, and all other property adjustments in respect of the property;
(e)In payment of costs incurred in cleaning, redecorating or improving the presentation of the property, other than the removal of the husband’s stock-in-trade as per Order 14;
(f)As to the wife sixty-five (65) per cent of the net proceeds; and
(g)As to the husband thirty-five (35) per cent of the net proceeds, deducting any costs incurred by the wife as trustee for the sale of the property in the event of the husband failing to remove his stock-in-trade from the property pursuant to Orders 14 and 17.
Simultaneously with payment to the parties pursuant to Order 18, the wife is to pay to the husband the sum of $118,280.50.
Unless otherwise specified, each party is solely entitled to all property in his or her possession or control as at the date of these Orders, including but not limited to real property, money held in bank accounts, superannuation entitlements, insurance policies and collectable items.
Each party is to be solely liable and indemnify the other against any liability encumbering any item of property to which they are solely entitled to pursuant to these Orders.
In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Parramatta Registry of the Family Court of Australia shall be authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same. Such default shall be proved by way of affidavit evidence.
All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramirez & Ramirez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 2655 of 2010

Ms J Ramirez

Applicant

And

Mr Ramirez

Respondent

REASONS FOR JUDGMENT

Introduction

Ms J Ramirez (“the wife” or “the mother”) and Mr Ramirez (“the husband” or “the father”) lived together as a married couple for nine years from June 2000 until they separated in December 2009. They are yet to be divorced.
The parties have one child, E (“the child”), who was born in 2001 and is currently 12 and a half years old. The child was born with mild cerebral palsy and a genetic condition and has special needs. The child has lived with the mother since the date of the parents’ separation.
Each of the parties owned assets, including real property, prior to their marriage and together they built a home upon the land owned by the husband, in which they lived for some years.
Both parties seek orders for property adjustment and the father also seeks parenting orders, to which the mother has responded and seeks orders in her own right.
The wife seeks a property adjustment which would see her receive 75 to 80 per cent of the overall property pool. The father’s approach to property orders is different in that he seeks that the Court take an asset-by-asset approach, rather than a global one. If the asset-by-asset approach were taken by the Court, and the orders sought by the husband were made, this would see the husband receive 79 per cent of the overall property pool. In the alternative, if a global approach is taken by the Court the husband’s proposed orders would see him receive 65 per cent of the overall property pool.
So far as parenting orders are concerned, the father seeks an increase in the time the child spends with him. Currently, the mother has concerns about the father due to his behaviour, which she believes is related to a mental condition. The father’s position is that there is no basis for the mother’s perception in relation to any risk of harm to the child and that the orders he proposes are in the best interests of the child.

Background

The parties married in June 2000 and had not lived together prior to that date. They separated on 7 December 2009 and are not yet divorced.

At cohabitation

At the date of marriage each party owned assets. The wife owned a property at Suburb C (“the Suburb C property”), which was not mortgaged and comprised a house, which was rented until the parties commenced to live there when they were married. The parties agree that the value of that property as at June 2000 was $225,000.00. The wife also held term deposits and cash in the bank in the sum of $160,504.00, AMP shares with an agreed value of $15,075.00 and had a superannuation entitlement of $12,181.00, being total assets valued at $412,760.00 at the date of the marriage.
At the date of the marriage the husband owned a property at I Street, Suburb B (“the Suburb B land”), which he had purchased in 1996. The property comprised vacant land, other than a large vehicle and a work shed, and was not mortgaged. The value of the land at the date of the marriage is one of the matters in dispute, dealt with later in these reasons. At the commencement of the relationship the husband also held savings in the sum of $145,144.69 and collectable items, which are also dealt with later in these reasons.
The husband works for himself in a business where he buys and sells second hand goods. He earned a modest income in this business throughout the marriage and carried on his business from the Suburb B property.
The wife initially worked on a full time basis and her income was used to support the family. She ceased work in December 2001, after the child was born, and has not returned to work since that date.

The child and her health

The child, who was born extremely prematurely in September 2001, has experienced difficulties in the development of her speech, language, fine motor, gross motor, emotional and learning skills, which will persist into adult life. The child has four areas of problems, the first being her life-long condition of cerebral palsy. Due to this the child’s gait is abnormal, she runs in a clumsy manner and is prone to falling over. Her fine motor coordination is poor, which impacts upon her ability to dress herself and, although her physical disability is mild, it significantly impacts her in respect of daily living activities and functioning at school. She requires assistance in many daily activities, takes a longer time over activities such as writing and drawing compared to her peers and her sports and physical activities are limited, which leads to difficulties in socialising with other children.
Secondly, the child has a mild intellectual disability, which manifests in delayed acquisition of speech and language skills as well as learning difficulties. She has difficulties with memory, understanding concepts and problem-solving, all of which adversely impact on her ability to organise day-to-day activities and perform academic tasks at school. Thirdly, the child has a short attention span and is easily distracted, and also has an anxiety disorder. Finally, the child is a Fragile X permutation carrier (as is her mother) or suffers from Fragile X syndrome. According to a paediatrician who treated the child from infancy (“the first paediatric report”), she will have permanent physical and intellectual disabilities and on-going health, developmental and educational issues, which will place significant demands on her mother’s time, effort and finances.
As a result of the difficulties associated with her prematurity, since infancy the child has received early intervention services such as physiotherapy, speech therapy, occupational therapy and early education support to optimise her development. Since July 2012, the child has also suffered from seizures and has been diagnosed with epilepsy. In a report (“the second paediatric report”) the child’s current paediatrician describes the child as suffering from Fragile X syndrome, a genetic condition associated with intellectual disability and behavioural problems rather than being a Fragile X permutation carrier. The paediatrician describes the child as having ongoing learning, concentration and behavioural difficulties related to this diagnosis as well as cerebral palsy, which is envisaged by the doctor to be ongoing and persistent. The doctor said the child needs a high level of care by her mother on a day-to-day basis and that will need to continue for the foreseeable future.
Central to the dispute between the parties is the level of the child’s disabilities, the services she needs and the way in which her needs have been met. The father asserts that the mother is exaggerating the child’s disabilities and needs whilst the mother says that the father has provided little assistance, including financial support, or involvement in attending appointments and making decisions in relation to the child’s care and needs.
Having regard to the uncontradicted medical evidence set out above, the extensive evidence in the mother’s affidavit concerning the range of early intervention services she has organised for the child, the absence of these matters in the father’s evidence, the father in his affidavit and under cross-examination being overly concerned with the child’s particular diagnosis rather than the difficulties she experiences, overall I gained the impression that the father has a very poor understanding of the extent of the child’s disabilities, the services she has required and continues to require, and has little appreciation of the extent to which the mother has met the child’s needs when she was an infant and since that time.
The wife does not propose returning to paid employment as she wishes to be available for the child, to supervise her and do all that she says is required to meet the child’s needs.

During marriage / cohabitation

After they were married, the parties initially lived at the Suburb C property and saved money to build a home on the Suburb B land.
Throughout the marriage the wife attended to the running of the household, including shopping, cooking, cleaning, laundry and associated tasks. The wife also says she managed the finances and paid the household bills, whereas the husband contends that the parties managed their own separate financial affairs during the course of the marriage.

When referring to her management of the finances, the wife did not use language in her affidavit to indicate she was exclusively managing her own financial affairs, though under cross-examination she did agree that the parties maintained separate bank accounts and that she used her own funds in relation to expenses for the Suburb C property.
The wife said that the husband gave her $500.00 per week and from that sum she was expected to pay for all household expenses. When there was insufficient money to pay bills she also used money from her bank account. The tenor of the wife’s evidence in relation to the payment of bills generally was that she paid them from whatever funds were available rather than from accounts quarantined for a particular purpose. For example, she did not agree that the rates for the Suburb B property were paid by the husband out of his account, and said these were part of the expenses she was expected to pay.
In his affidavit the husband does not say that the parties managed their own financial affairs during their marriage, nor was there any oral evidence from him to this effect. The only evidence from the husband in this regard is to the effect that the parties maintained separate bank accounts and that the rent from the Suburb C property was paid into the wife’s account and that account was also the source of the wife’s contribution to the building of the house. Under cross-examination the husband agreed that the wife managed the finances including paying the bills. The husband agreed that when money was withdrawn for a particular purpose he could not say that the money came from a particular source. He did not agree, however, that this meant that the money was intertwined.
In my view, although the husband maintained that the money was not intertwined, considering the evidence in its entirety, this is exactly what did occur. I am not satisfied that the parties managed their own separate financial affairs during the marriage but I am satisfied that they were managed by the wife. I am also of the view that the evidence does not support the husband’s contention that he maintained the Suburb B property as a separate, identifiable asset.
After the child was born the mother cared for her which, given her special needs, included attending at hospital on numerous admissions, taking her for treatment, caring for the child when she was sick and participating with her in many early intervention programs necessary for her development. As the child became older, the mother took the child to and from preschool and school, prepared her for school each day, volunteered as a classroom assistant and assisted the child with her homework. The mother continues to take the child to various medical appointments and to other services and extracurricular activities and the father attends some of these appointments and activities also.
The father contends so far as the child’s current needs are concerned that the mother continues to exaggerate the extent of the child’s limitations and appeared to be suggesting under cross-examination that the child could make her own way to school and there was no reason why the mother could not find employment during school hours. For the reasons given earlier, I am not satisfied that the mother is exaggerating the extent to which she is involved and needs to be involved in the child’s daily activities to meet her needs. I am also not satisfied that the child could travel alone between school and home given the uncontested evidence as to her disabilities. I am also satisfied that the child requires significant supervision, and in light of behavioural difficulties which have been experienced at school referred to in the second paediatric report, the mother needs to be available during school hours to support the child, if required.
Throughout the marriage all parenting payments and other money such as gifts received for the child were paid into a trust account for her future benefit and, at the time of hearing, this account had a balance of $60,000.00. Although the husband initially included this money as part of the pool of assets, he now agrees with the wife that this money is for the child and should not be treated as an asset of the parties in these proceedings.

The Suburb B property and at time of separation

The parties constructed a home on the Suburb B land (“the Suburb B home”) in 2003 with the construction costs of $200,000.00 being provided by the parties equally.
The family moved into the Suburb B home in 2003, according to the wife, or in 2004, according to the husband, and the Suburb C property was tenanted and the income utilised by the family.
The family lived at the Suburb B home until the parties’ separation in December 2009. There was an incident at the home on 8 December 2009 when the wife says she was assaulted by the husband, resulting in her making a complaint to the police and the police applying on her behalf for an Apprehended Violence Order (“the AVO”).
The husband was removed from the Suburb B home by police on 8 December 2009 and moved to his parents’ home, where he has remained living since this date. Although the AVO, which was made on an interim basis by telephone on 8 December, prevented the husband from entering the property, it was varied the following day on the application of the husband to allow him to attend the property for the purpose of accessing the shed and stock, though he was not permitted to enter the house at that stage.
In the course of the hearing, the wife became aware for the first time of $52,041.00 which was held in a CBA account in the husband’s name (“the CBA account”). Upon maturation of a term deposit, $52,500.00 was deposited into the CBA account at around the time of separation. The husband said under cross-examination that between 4 December 2009 and 12 January 2010 he withdrew the majority of the funds from that account and had the benefit of the money. Some of that amount appears to have been used to pay a credit card debt in the husband’s name.

Post separation

Initially, following separation the wife and child lived at the Suburb B home, but on 1 May 2010 they moved to the maternal grandparents’ home and, at the time of the proceedings, lived in rented accommodation.
There had been further variation to the AVO on 24 February 2010 so that the Orders in relation to the Suburb B property would continue only until 30 April and after that date were to “dissolve”. Accordingly, from 1 May 2010 the husband had full access to the property, including the home, but has not lived there at any time since he left in December 2009.
The wife left the Suburb B home and immediate surrounding areas in a clean and tidy state.
In the course of the husband’s business, he has for a number of years stored stock and other items, particularly second hand goods that he had purchased and collected at the Suburb B property. There is a dispute about the value of these items and the extent to which the husband continued to carry on a business after separation. However, it is agreed that there was a considerable quantity of stock, second hand goods and other debris at the back of the property at the time the wife left.
Initially, it seems to have been proposed that the husband would purchase the wife’s interest in the Suburb B property, but this did not eventuate. It also appears to have been originally proposed that the husband would attend to clearing the property. Despite directions having been given for the clearing by the local council in August 2010, the property was not cleared and the wife says more debris has accumulated on the property since that date.
The parties negotiated an agreement in relation to the time the child would spend with the father following the parties’ separation, with the assistance of a child psychologist. The child apparently was showing signs that she was extremely anxious and afraid to see the father alone and, following consultation, it was recommended that arrangements for time with her father involve the mother being initially present and the time being gradually increased. At first, time with the father alone occurred under the supervision of a contact service and was initially two hours and increased to three hours on each occasion. From September 2010 the child spent time with her father during the day and often the father’s sister was present.
The child spent some single nights with the father on a number of occasions from November 2011 to March 2012, and from March 2012 until October 2013 had spent one night a month with him, generally staying from 4.30 pm Saturday to 7.00 pm Sunday. The child apparently has an excellent relationship with the paternal aunt, Ms K Ramirez.

The husband’s mental health

The husband was diagnosed with bipolar disorder in April 2011 and has sought treatment from various health professionals. Psychologist reports annexed to the husband’s affidavit noted symptoms of his condition include chronic procrastination and indecisiveness. The husband did not disclose this diagnosis to the wife and she was unaware of it until shortly before the hearing. Although it is not clear when the husband was first diagnosed with depression, he apparently has taken anti-depressant medication, which he ceased taking in November 2009.
At around the same time that he was diagnosed with bi-polar disorder, apparently in the course of a manic episode, the husband suffered a serious injury and was hospitalised. The husband’s consultant psychiatrist in Exhibit 6 described the husband as having ‘florid manic symptoms’ during his admission.
Hospital notes indicate that the husband was observed at the hospital to have been agitated, screaming, laying naked in bed, asking to re-arrange the furniture in the room, throwing linen at staff and demanding specific items and services. He was also described as being tangential in his speech, accusing the staff of lying and talking to himself. Medical certificates from two doctors for the purposes of involuntary treatment dated 4 May 2011 describe the husband as displaying aggressive, intrusive behaviour, throwing objects on the ward, being thought disordered and irritable with some grandiose ideation and elevated mood. The husband accepted under cross-examination that he had done “all sorts of crazy things” whilst in hospital. Although he did not remember it, he accepted that the wife said he was yelling and agitated during a visit by her and the child.
Following his discharge from hospital the husband could initially only walk short distances and at first could not drive a motor vehicle. There is no evidence about any ongoing impact or treatment for this injury, though there is no doubt he has been able to drive for some time.
The council was prepared to allow the husband additional time, up until mid-May 2011, to clear the property in light of his injury, but the property continued to remain uncleared.
The wife then proposed through her solicitor from at least November 2011 that the parties jointly develop a plan to clear the property so that it could be let or sold.

The condition of the Suburb B property

The wife obtained quotations for the house and property to be cleaned, stock and other debris to be removed, grass to be cut and gardens attended to, and collectables and furniture to be removed and stored at another location. The wife also expressed concern through letters from her lawyer that the parties were suffering a financial loss as a result of the husband’s failure to consent to the property being leased or agreeing to arrangements for it to be prepared for letting. The wife also obtained advice from real estate agents that the property could be let for $800.00 per week.
In March 2012 the wife filed an application seeking orders for the property to be cleaned up and for the collectibles, furniture, stock and debris to be removed and sold. The husband opposed those orders and in an affidavit dated 11 April 2012 indicated that the orders were not required as he had a plan to clear the property within three to four months. It appears that the wife did not pursue her application as a result, but the property was not cleared, nor has the husband consented to the property being let or prepared for letting, at any time.
It is the wife’s contention that the Suburb B property should have been leased from the time she vacated it in May 2010 and gave vacant possession to the husband and that in failing to do so, the husband has caused a loss to the parties.
The husband says that he has not worked from the Suburb B home, nor has it been let for various reasons. Firstly, he says he cannot afford to erect appropriate fencing to prevent tenants from entering the rear where his stock and other debris is located. The husband also says that there is only one driveway available to access both the house and the rear of the property and it would be necessary to make two separate driveways and also erect some fencing in this area also before the property could be rented. He also suggested in his affidavit that the AVO was an impediment to the property being leased. As I have already indicated, the AVO did not in any way affect the husband’s full entitlement to the property after 1 May 2010.
So far as fencing is concerned, the husband conceded under cross-examination, that the home was safe and secure when the family were living there and he had no concerns about the child playing in the yard. There is no evidence to indicate that the fencing deteriorated after the wife vacated the home and I find this reason proffered by the husband for his failure to lease the home unfounded.
The husband has not explained how the absence of a second driveway is an impediment to letting the property or, if it was, why an additional driveway could not have been constructed. No evidence about the cost of a driveway is given, but it seems inconceivable to me that the cost of building a driveway could genuinely be an impediment to letting the house for a period of three years. I take a similar view in relation to the cost of storing furniture.
In light of the best evidence available about the rental amount for similar properties in the area, I find that the husband’s failure to lease the property from May 2010 resulted in a significant loss to the parties of prospective rent.
Some of the items stored at the property, including second hand goods and stock, have deteriorated since the time the house has been vacant, though the extent of the deterioration is in dispute. The value of these items is also in dispute, as is the value of the items sold in the course of the husband’s business since separation.

The husband’s financial disclosure

In his evidence the husband gives differing accounts of the extent to which he continued to carry out his business after separation but seems to suggest that it was minimal. He says that he prepared a schedule of the collectibles located at the property when the proceedings first commenced and a copy of that schedule is annexed to his affidavit and marked as annexure M (“annexure M”). I do not accept that annexure M was prepared by the husband at the time of the commencement of the proceedings (4 June 2010) as it includes the “value” of various items as at 30 September 2013 which could not have been known at that time. However, in annexure M the husband does indicate that he sold some second hand goods and stock between the date of separation and 30 September 2013.
The husband’s financial statement was originally prepared on 18 August 2010 (“the husband’s first financial statement”) and then an updated statement (“the husband’s second financial statement”) was filed on 14 October 2013 during the hearing. In the first financial statement the husband declared interest of $17.00 per week as his only source of income, whilst his second financial statement declares a sickness benefit of $292.00 per week as his only source of income. In the section dealing with disposal of property in the second financial statement the husband refers to a list setting out property disposed of in the 12 months before separation (valued at $4,950.00) and since separation. However, the value of items disposed of since separation is left blank and there are no schedules or lists attached to the financial statement itself.
At 4.30 pm on the fourth and final day of the hearing, the husband produced a schedule apparently relating to collectible items sold and retained, which became Exhibit 19 in the proceedings.
Although Exhibit 19 consists of seven pages, the pages are not numbered. The husband gave no evidence in chief, nor was he cross-examined generally, about the truth and accuracy of Exhibit 19 or the meaning that should be attached to the various headings on columns or entries. The Exhibit also refers to entries being “already included in the original list”, though the meaning of this is unclear.
The husband was cross-examined at length about the extent to which he carried on business and the income he earned after separation. He admitted to the buying and selling of many items for which he had received cash, which he said had not gone into a bank account. He also ultimately admitted he had failed to declare income to various entities such as the Taxation Office, Centrelink and the Child Support Agency over a period of years. In the course of this cross-examination, the husband said the last time he had lodged an income tax return was 2008 and that he was yet to disclose the income earned during this period to Centrelink.
Following cross-examination, I formed the view that the husband’s evidence in relation to financial matters generally is unreliable and unsatisfactory and that some documents filed by him in the proceedings are quite misleading. For example, the husband was unsure of the contents of the two financial statements he had sworn and did not agree that he had sworn the affidavits attached to them to show that he understood he had an obligation to make full disclosure to his wife and the Court. He subsequently agreed he had not disclosed all his income and then said:
… I was under the assumption when time comes to fully disclose the sale of [stock] I will give the papers over to [his then lawyer].
The husband agreed he had not disclosed income from selling stock, which was in his words “obviously” incorrect, but then immediately denied that he knew it was incorrect.
The cross-examination initially concerned income earned from the selling of stock since separation but the husband agreed there had also been an income earned from buying, selling and swapping second hand goods and agreed that he had not provided the information about this income to the Court also. The husband agreed that in his affidavit he had also not fully disclosed his income but diminished the significance of this, as he said he regarded the amount he had earned as “minimal”. When asked whether he accepted that the documents were quite misleading as to the level of income he had earned from the date of separation to date of hearing he said: “In hindsight yes”.
The parties have attempted to assist the Court in understanding the husband’s evidence by preparing tables within their submissions that they each say summarise Exhibit 19. In the case of the husband the submissions purport to explain the meaning that should be attached to the various entries in that exhibit in a manner that goes well beyond the evidence and the wife’s table appears to contain some mathematical errors. These tables and submissions are of course not evidence themselves, and to the extent it has not been explained by the husband, Exhibit 19 must speak for itself.
Exhibit 19 is not evidence as to valuation of the stock and other items as the husband is not qualified to express an opinion, nor is it in the same category as values given in a financial statement which is verified by affidavit. In his second financial statement under the heading “Property owned by you – Other personal property” the husband specifies:
[Second hand goods] and other assets schedule ([second hand goods] in question 40 have been included in attached schedules)
He values these items at $131,963.00. There are no attached schedules to the financial statement.

There is no other evidence relating to the valuation of these items and I cannot make a finding as to their value. It is clear, however, that the husband has made a modest income from the trading of these items since separation and that there was a considerable stock of these items available to him at the date of hearing, so that he could continue to carry on business in the future.
The only item remaining at the Suburb B property for which I can determine a value are the collectibles, which both parties agree are valued at $43,125.00. So far as the remaining items are concerned, each party accepts that they are of some considerable value with the wife estimating them to be worth $193,230.00 and the husband contending they are valued at either $131,963.00, according to his second financial statement, or $124,345.00, according to the balance sheet.
After the wife left the Suburb B home the rent from the Suburb C property was utilised by her for the benefit of herself and the child.

Circumstances at time of trial

At the time of the hearing the child was completing year six at primary school and was progressing satisfactorily consistent with her capacity. She receives assistance from a special trained teacher and a teacher’s aide.
Due to her developmental delays, if the child is to be educated in the public school system she will need a placement in a special class, which the wife has not been able to secure to date. The father played no part in making enquiries or participating in negotiations with respect to the child’s schooling and the mother’s effort in this regard included her making submissions to the Department of Education and Members of Parliament.
At the time of the hearing it appeared that the only option for the child’s education was a private school, which will, according to the mother’s uncontradicted evidence, involve considerable additional expenses in school fees, uniforms and books in the order of $5,200.00 per year.
The mother has been able to obtain funding for a number of the services for the child through various programs and other expenses such as paediatric visits being funded through Medicare. The mother still bears some out-of-pocket expenses for occupational therapy, prescription glasses, podiatry, some ophthalmology costs and speech therapy costs yet to commence of $50.00 each weekly or fortnightly session, none of which is claimable under Medicare. The mother has at all times paid for the child’s extracurricular activities, including swimming and gymnastics.
The father’s general proposition in relation to financial support for the child after separation seems to be that he could not afford to pay anything more than a minimal contribution.
In his affidavit, the father said he did not qualify for Centrelink benefits due to the assets he owned and had been living off his savings in bank accounts in his name at separation. Elsewhere, such as in his second financial statement, the father states that a Centrelink benefit was his only source of income. I do not accept the father’s account of his finances and income since separation as he gives contradictory evidence in various documents and then further contradicted himself under cross-examination. The father also said that he has currently been assessed to pay an annual amount of $360.00 in child support, which equates to a monthly rate of $30.00. This is the only financial support the father has given the mother to meet the child’s needs since separation.
At the time of the hearing the mother was no longer in agreement to overnight time between the child and the father as she had only just become aware of the father’s bipolar disorder and was concerned about the risk that may be posed by the father’s mental state. Accordingly, since October 2013 the child has not spent overnight time with her father.
Each parent alleges conduct which would fall within the definition of family violence perpetrated by the other. Each says the other was verbally abusive and the mother gives examples of the father having damaged property, which is disputed by him. The father says that on two occasions he was assaulted by the mother, each involving the mother touching his skin with a knife, which appears to have been some form of threat, but he did not call the police in respect of these matters.
Although neither party submits that the child was exposed to domestic violence, each suggests that the other behaved erratically in the presence of the child and the mother alleges this at times caused the child to become frightened, which would fall within the definition of “family violence” under the Family Law Act 1975 (Cth) (“the Act”). The mother also says the child was exposed to the father’s behaviour during the course of a psychotic episode he was having when she took the child to see him in hospital in May 2011. The father says he cannot recall the manic episode but accepted it would have been concerning if he behaved in that manner in front of the child.
The mother also alleges that the child was in the car when the father was angry and drove the car partially through the garage door, denting it and on another occasion when the father was angry and drove too fast, the child became distressed. The father agrees the parties argued in the car but said that the dent was accidental. He also agrees that at times when the child had been in the car the mother has said that he has been too fast, but he does not agree this has made the child scared. Further, he agreed that the child was exposed to the mother shouting in the car.
It is not disputed that following the incident in December 2009 when the child was in the home, it was the father who was removed and against whom the Apprehended Violence Order was issued.

The father’s adjournment application

At the commencement of the proceedings the father sought an adjournment (which was refused) on the basis that he was not able to instruct his legal representatives adequately due to his bipolar disorder. A doctor’s certificate was tendered which said that:
…
[The father] has a long standing history of Bi-polar affective disorder. He has had an admission in the past with florid manic symptoms. Currently he is on medications with no remission of his symptoms.
[The father] is in the process of having medication changes with a hope of improvement to his mental state. Today I have made changes to his medication and I will monitor his mental state for ongoing efficacy.
…
No other evidence concerning this disorder has been placed before the Court.

The Family Consultant’s Evidence

The Family Consultant prepared two reports in this matter – a Children and Parents Issues Assessment Report (“the CAPIA report”) in November 2010 and a more detailed Family Report in November 2012. Those two reports were based upon interviews with the parents and the child, and in respect of the Family Report, the Family Consultant also had access to a number of documents, including medical, educational and psychological assessments.

The CAPIA report

The child was nine years old at the time of interview for the CAPIA report. At that stage, the Family Consultant made recommendations that the parents cooperate and devise arrangements for the child’s time with the father in the child’s best interests. She was of the view that the child’s time with her father should be extended, but not to overnight time at that stage, and that there was no longer a need for supervision. She envisaged a regime be put in place which gradually increases the child’s time with the father so as not to stress and “over stretch” the child. The consultant was of the view that both parents would need to feel comfortable with the child’s time progressing to overnight with the father.
At the stage she first saw the child, in October 2010, the consultant observed the child to be operating two years younger than her chronological age and the child was noted to have real physical limitations, for which she required assistance. The consultant found the mother to be an “extremely attentive mother and [the child] had learnt to be dependent on her”. She viewed that the mother would need to be instrumental in helping the child develop confidence and ability to gradually spend extended periods of time away from her.
The consultant stated the child appeared to have been affected by the parental conflict, and the mother reported the child was attending upon a psychologist to help her deal with the stresses of her parent’s separation.

The Family Report

The Family Report was prepared on 8 November 2012, following interviews with the parents and child in June 2012 and some follow up telephone conversations with the parties in July and November 2012. The child was 11 years of age at the time of interview for this report.
The consultant had the benefit of various medical, educational and psychological assessments in relation to the child, and the documents set out that the child had a range of problems that require special attention.
Drawings made by the child in the October 2010 interview and at the June 2012 interview illustrated to the consultant that the child had “progressed very little in her drawing and writing skills” over that period of time.
In play with her father the child was observed to be unable to consider compromise and possibly could not consider another person’s feelings. Overall, the consultant found the child to operate emotionally and socially at a much lower level than her chronological age of 11 years. The mother reported the child as being in a special needs class.
The Family Consultant made observations of the mother demonstrating patience and persistence in attending to the child’s special needs. This observation was supported by school and psychologist reports.
On the other hand, the father presented as focused on him not spending enough time with the child. He was critical of the mother and perceived her concerns about the child to be overprotective and that her attending to the child’s medical, educational and emotional needs as efforts to frustrate him spending more time with the child. He did not appear to fully accept the professional assessments in respect of the child’s various needs, which was consistent with concerns raised by the mother that the father (and his family) continued to minimise and ignore the child’s condition and needs.
The consultant reported the child as raising concerns about staying with her father, but that she was not able to articulate what her concerns were. The consultant was of the view that the child may have been perceptive of the father not entirely attending to her needs when she was in his care, which was supported by the consultant’s own observation of the father’s interactions with the child in the play room. The consultant reported that the father appeared to have “very little understanding of [the child]’s needs” despite spending reasonable and regular time with her and being informed of professional assessments.
The consultant raised concerns about the father persisting to return the child to the mother at 8.00 pm on a Sunday night, despite the mother voicing concerns to him that this was not in the child’s best interests. The consultant agreed that such a changeover would present problems in settling most children ready for school the next day, but the problems would be compounded for a child with special needs.
The Family Consultant did not recommend mid-week time with the father and, in this regard, took into account assessments from the child’s school and treating practitioners.
The consultant noted both parties were required by the Court to present letters from their treating medical practitioners as to any mental health or medical issues, as the parties had put in issue each other’s mental health and parenting capacity. A letter from the mother’s general practitioner stated the mother presented with “an Adjustment Disorder – mixed anxiety and depression type related to her social circumstances”, but noted the mother was responding well to medication and predicted her difficulties were connected to the legal proceedings and would resolve once the proceedings had concluded. The father supplied two letters in respect of his health. The letters related to his leg injuries, causing him difficulties walking and weight bearing, a sleep apnoea condition (for which he was receiving specialist advice and treatment), and also treatment for depression. One of the letters stated the father had been referred to the D Hospital Mental Health Team for follow up after a manic episode, but the doctor writing the letter had found the father of stable mind, with no symptoms of mood disturbance or psychosis in a July 2011 interview. The doctor reported the father as compliant with medication and follow up and having family supports.
The mother reported that overnight time between the child and the father had taken place about seven times, but she said on the last occasion the child had been clingy and cried, and she had refused to let the child go on that occasion. She reported the father making no effort to reassure the child to go with him. She raised concerns in general that the father and his family were not able to appropriately care for the child’s special needs, including her feminine hygiene needs. The mother reported that she was not able to communicate effectively with the father and that the father ignored any concerns she raised, such as the late Sunday night changeover.
The Family Consultant observed the child to look to the mother for direction and reassurance and their interaction was comfortable. The child voiced that she did not want to play with her father. The father was observed to try and engage the child, but had mixed results. The child separated easily from the father. The child reported that she was a little worried when she stayed with her father and repeated several times that she missed her mother when she was separated from her.

The consultant’s oral evidence

Under cross-examination questions were asked by the father’s lawyer about the child’s exact diagnosis. The consultant said that her recommendations in her report were not really affected by whether the child suffers from the Fragile X syndrome or not and said that the important issue was the child’s functioning, rather than her formal diagnosis.
When asked about her observations of the father and the child in the playroom, the Family Consultant said the father was not able to divert the child’s focus following the child expressing a wish to be at school instead that day. She did not agree to the proposition that the child had rigid thinking and said that she would describe the child as “insistent”.
The Family Consultant was shown a recent letter from the father’s psychiatrist in respect of his diagnosis of bipolar disorder and being on medication, and indicated that such information was not available to her at the time of preparing her report. She could not formulate any recommendations with respect of the child having regard to that information, without more detail. She could not offer any further recommendations to those already set out in her report as to the father’s time with the child.
When questioned about the father’s overnight time with the child, the Family Consultant said she had no concerns about overnight time per se, but confirmed concerns set out in her report as to the parties’ level of cooperation and as to the father dismissing the mother’s concerns about the late changeover on Sunday nights.
In cross-examination by the mother’s counsel, the Family Consultant reinforced her view that the parties were unable to come to any agreement in respect of the child’s arrangements and that the father was entrenched in his view that the mother was deliberately overstating the child’s needs to reduce his time with the child. When put to her, she agreed with the mother’s counsel that the father lacks insight as to his understanding of the child’s needs.
The recommendations of the Family Consultant remained intact following cross-examination. For this reason, and having regard to the expertise of the Family Consultant and the sources of information available to the Family Consultant to corroborate her findings, I accept the Family Consultant’s evidence and attach significant weight to it.

The Law & Discussion –Parenting

The objects of Part VII of the Act and the principles underlying it, set out in section 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests. These proceedings were initiated on 4 June 2010 that is before the 2011 amendments so the applicable law is as it was prior to those amendments.
These proceedings were commenced prior to June 2012 and therefore the legislative provisions in respect of parenting that applied prior to the amendments to the Act apply.

Primary considerations

The primary considerations (under s 60CC(2)) are:-
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
These matters are to be balanced by the Court in its determination.

Meaningful relationship

As to the meaning of the phrase “meaningful relationship”, it is not defined in the Act itself. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[1] (2009) FLC 93-405, [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
The Full Court in McCall & Clark (supra) said at [117] that Bennett J in G & C (supra) discussed the terminology and said:
… the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

For the reasons given, as at separation, I assess the total contribution made by each party to be roughly similar.
So far as contributions after separation are concerned, there is significant disagreement between the parties, with the wife contending that her post separation contributions are significant and the husband contending that their contributions were roughly the same.
The husband has paid a negligible amount in child support for the child since separation and it is of particular concern that it was revealed under cross-examination that he has not given an accurate picture of his income to the Child Support Agency during the wife’s challenge to an administrative assessment. He has also not disclosed additional income to Centrelink or the Australian Taxation Office, but regardless of the true level of his income, he has provided minimal financial support for the child since separation. Although the father has refused to accept it, there were a number of additional expenses in relation to the child in this period, which were being met by the wife alone.
The husband in his submissions suggests that he has provided and consented to a significant amount of money being retained by the wife for the benefit of the child. I assume that this is a reference to the $60,000.00, which was accumulated from parenting allowances and other payments and gifts made to the child over the years. Initially, the husband inexplicably sought to include this sum in the matrimonial assets, but when confronted with the unreasonableness of this approach under cross-examination he agreed that the child’s money should not form part of the matrimonial pool. On the basis of that evidence, I do not accept that the husband has either “provided” or “consented to” a significant amount of money to be retained by the wife for the benefit of the child. Rather, it is money the parties accumulated together and both agree should be kept separate for the benefit of the child.
Since separation, the wife has supported herself and the child from the rental of the Suburb C property, together with a Centrelink benefit and allowance, which is declared in her Financial Statement. The husband declares an average weekly income of $292.00, entirely comprised of a sickness benefit. I am not satisfied that this reflects the true income of the husband and I am satisfied that he could have contributed to the costs associated with the care of a disabled child, rather than challenge the basis for those costs. The wife also continued to be involved in the manner previously described in the day-to-day activities required to parent her disabled child.
In my view, the post-separation financial and non-financial contributions of the wife towards the welfare of the family significantly exceed those of the husband and I make an adjustment in favour of the wife of five per cent on that basis.

Section 75(2) Factors

The mother is aged 50 and apparently in good health. Although the father, who is aged 49, has had mental health problems and is currently on a disability pension, he has clearly been able to operate a business since receiving that pension and there is no reason to suggest that he will not be able to do so for some time into the future.
It is submitted that the husband is still recovering from a leg injury and that he has greater future needs than his wife with respect to his health. However, there is no evidence about the extent of the injury or the way in which it may be said to inhibit the husband’s capacity to earn a living and he has continued earning a living after both the injury and bi-polar diagnosis. There is no evidence as to any ongoing expenses in relation to the husband’s treatment for his injury or his mental health problems.
Almost half of the wife’s weekly income is rent from her Suburb C property and any order which has the effect of having this property being sold would mean that this income source would not be available to her in the future. She also receives a government benefit and has limited other financial resources.
The husband’s stock-in-trade is located upon the land of the Suburb B property. There is no evidence to suggest that he will not be able to continuing trading in stock and other items when the land is cleared, as is submitted by him, and there is no reason why the items must be stored on the Suburb B property as opposed to any other place.
The husband earns an income by trading stock and other items. He has considerable financial resources by way of stock-in-trade available to him.
It is clear that the husband has the physical and mental capacity to continue to earn a modest living in trading stock and other items. Whilst there is no evidence to suggest that the wife does not have the physical and mental capacity to work, she has not worked for many years and the Family Report supports a conclusion that the child’s medical, educational and emotional needs require a significant amount of the wife’s time. As noted earlier in these reasons, the husband appeared to underestimate the extent to which meeting the child’s needs requires a considerable effort by the wife, in time, finances and commitment. Submissions to the effect that the wife could or should be employed outside the home, in my view, reinforce a lack of insight into the child’s needs.
The wife has the primary care and control of a child, who has not attained the age of 18 years, and, in my view, the justice of the case requires that I also consider that this child’s needs for support will continue beyond 18 years. The medical evidence which was admitted without objection includes the first paediatric report that said the child will have permanent physical and intellectual disabilities and ongoing health, developmental and educational issues, which will place significant demands on her mother’s time, effort and finances. The second paediatric report said that the child needs a high level of care by her mother on a day-to-day basis and that will need to continue for the foreseeable future.
The wife does have available for expenses related to the child around $60,000.00 in an account which has been accumulated from money intended for the child to meet her future needs.
On the evidence before me, the child has not been accepted into a special needs class at a public school and the appropriate services to meet her needs will only be available at a private school. The child has commenced high school this year and the evidence of the wife, which was admitted without objection, was that this will be an ongoing financial commitment of about $5,200.00 per year for a number of years.
Although the parties have had a modest income and led a modest lifestyle, they have owned their own home unencumbered and have been able to afford the additional services required for the child. Any property adjustment should allow the wife to continue in this position and to provide for the child in this way. The husband lived with his family before the marriage and returned to live with them after separation even, though he had the family home available to him for three years.
The wife wishes to continue the role as a parent and not work outside the home, especially in light of the child’s special needs, and on the basis of the evidence as to the husband’s involvement in meeting these needs to date, there is no prospect that he will assist in fulfilling this role.
Each of the additional factors that the husband submits I take into account under s 75(2)(o) has already been considered, other than the issue of Capital Gains Tax in the event that the Suburb B property is required to be sold and the issue of the child’s increased time with him in the future. In relation to the former issue, it is unclear how the husband wishes me to consider liability for Capital Gains Tax as there is no evidence as to the amount of Capital Gains Tax that would be payable. Further, it is likely that the husband’s taxation affairs will be complicated as the husband has not filed a tax return since 2008.
So far as time with the child is concerned, the increase in the husband’s time is to be relatively minimal and is not of such an extent that the wife will no longer be the primary carer. The wife will exercise sole parental responsibility for health and education and the husband will only be required to ensure that the child attends any of the services or appointments that she requires and that have been arranged for her by the wife. Accordingly, I do not propose making an adjustment on this basis.
The wife submits that I take into account under s 75(2)(o) that the husband has had the benefit of an unencumbered home that he has refused to lease and that he has continued to operate his business, the proceeds of which he has failed to disclose or apply for the benefit of the child.
In my view, the failure of the husband to lease the property, which on the best evidence available could have provided additional income to the parties between the date of separation and the date of hearing, is significant. An alternative basis for considering the matter is that he could have permitted the wife and child to return to that home so that the wife need not have rented alternative premises for three years. This factor and the failure of the husband to disclose his complete income to the wife and the Child Support Agency so that an appropriate calculation could be made are both factors which require some significant adjustment in favour of the wife.

The Property Orders

The husband’s initial contribution exceeds that of the wife’s. Having regard to the length of the marriage and the subsequent financial and non-financial contributions during the marriage, including the wife’s significant contribution to the care of the child during the marriage, in my view, the parties should be treated as being in a roughly similar position upon separation.
The post-separation contributions, which are essentially to the effect that the husband made very minor financial and non-financial contributions, favour the wife considerably and I make a 5 per cent adjustment in her favour for that component.
As indicated, the s 75(2) factors are also significant, especially in relation to the wife continuing to be the primary carer for the child, who is disabled. The husband accepts that an adjustment in the wife’s favour based on the s 75(2) factors of 10 per cent would be appropriate.
In my view, having regard to the total asset pool and all of the s 75(2) factors, an adjustment of 10 per cent is appropriate to do justice as between the parties.
The final orders I propose making involve the wife receiving 65 per cent and the husband receiving 35 per cent of the total asset pool.
As the wife will retain all the assets in her name, she will be required to pay the husband a sum of $118,280.50 to maintain his ratio of assets, excluding the Suburb B property. Upon its sale, the proceeds of the Suburb B property will be apportioned according to this ratio. Calculated on the estimated value of the Suburb B property, the wife should receive a total sum of about $1,128,142.50 and the husband should receive a total sum of about $555,166.50. The husband will also retain stock-in-trade, which at the very least he values at $124,000 and which did not form part of the pool, and he has already received the benefit of $52,295.00 from his CBA bank account.
I am satisfied, having regard to the financial and non-financial contributions made by the parties at the commencement of the marriage, during the course of the marriage and after separation, and the s 75(2) factors referred to, that the property orders I make are just and equitable in the circumstances.
The ownership of all assets other than the Suburb B property will remain as is currently the case, and as indicated the wife will be required to pay the husband a sum to retain the ratio calculated.
The only way to achieve a distribution on this basis is to order a sale of the Suburb B property, as it is clear from the evidence that the husband does not have the financial capacity to pay the wife her share. The orders will allow the husband to remove his stock-in-trade from the Suburb B property within a reasonable period of time. Having regard to the husband’s own medical evidence to the effect that he procrastinates and having regard to the procrastination evident in his actions in failing to clear and lease the property and his own evidence that he would be extremely upset if he was forced to sell the property, I have concerns as to whether he would act in a timely or proper fashion to dispose of this property.
The wife proposes orders which would see her appointed as trustee for the sale of the Suburb B property, which in these circumstances appear to be appropriate to do justice between the parties.
The orders that I make are set out at the forefront of these reasons for Judgment.

I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 March 2014.

Legal Associate:

Date: 18 March 2014

[2014] FamCA 153

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies