ROGERS & LENARD

FAMILY COURT OF AUSTRALIA

ROGERS & LENARD

[2012] FamCA 551

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the wife seeks orders for the children to live with her in Melbourne and the husband seeks orders for the children to live with him in Sydney – Where the wife had attempted to relocate to Melbourne with the children without the husband’s knowledge or consent – Where the wife has repeatedly failed to facilitate the children spending time with the husband and is unlikely to in the future – Orders for the children to live with the husband in Sydney and spend significant and substantial time with the wife.

FAMILY LAW – PROPERTY SETTLEMENT – Future needs – Where the parties’ contributions to the net matrimonial assets are equal – Where the husband’s household has two income earners and the wife’s household has only one – Where the husband will have the greater burden of the children’s expenses – Orders for a property adjustment of 5 per cent in the wife’s favour.

APPLICANT:

Mr Rogers

RESPONDENT:

Ms Lenard

FILE NUMBER:

SYC

1585

2010

DATE DELIVERED:	13 July 2012
ORDERS DELIVERED:	16 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25, 26, 27, & 28 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Siggins

SOLICITOR FOR THE APPLICANT:

Sweeney Tiggemann

COUNSEL FOR THE RESPONDENT:

Mr Battley

SOLICITOR FOR THE RESPONDENT:

In person

ORDERS

IT IS ORDERED

That the parents have equal shared parental responsibility for the children of the marriage X Rogers born … September 2003 and Y Rogers born … July 2005 (“the children”).
That the children live with the husband.
That during school terms the children spend time with the wife:
(a)       each Thursday from the finish of the school day until Friday morning at the commencement of the school day;
(b)       each alternate weekend from the close of the school day on Friday until the commencement of school on Monday morning or Tuesday if the weekend is a long weekend;
(c)       in the event that Mothers’ Day does not fall on a day when the children will ordinarily be spending time with the wife then the children will spend time with the wife on the weekend of Mothers’ Day in accordance with order 3(b);
(d)       in the event that Fathers’ Day falls on a weekend when the children would ordinarily be spending time with the wife then the wife will not have time with the children that weekend;
(e)       if the wife’s birthday does not fall on a day when the children would ordinarily be spending time with the wife then the children will spend time with the wife on the wife’s birthday from the close of school until 8.00 pm or from 10.00 am until 8.00 pm should the wife’s birthday fall on a weekend.
(f)       In the event that M’s birthday falls on a day when the children would normally be spending time with the wife, then the wife will not spend time with the children on that day.
That in the short school holidays (not including the Christmas holiday period) the wife shall spend time with the children:
(a) In 2012 and each alternate year thereafter from the close of school on the last day of the school term until midday on the day which marks the mid point of the holidays;
(b) In 2013 and each alternate year thereafter from midday on the day which marks the mid point of the holidays until 5.00 pm on the Sunday before school resumes.
That during the Christmas holiday period the wife shall spend time with the children as follows:
(a) In each alternate year commencing in 2012 from the close of school on the last day of the school term until midday on the day which marks the mid point of the Christmas school holiday period;
(b) In 2013 and every alternate year from midday on the day which marks the mid point of the Christmas holiday period until 5.00 pm on the Sunday before school resumes.
That on those occasions when the children’s time with either parent does not commence at the beginning or end of the school day the husband shall deliver the children to the wife at R shopping centre at the commencement of contact and the wife shall return the children to R shopping centre at the conclusion of contact.
On any occasion when either the wife or the husband is required to deliver or collect the children any person or organisation nominated by that parent is entitled to collect or deliver the children.
That each parent when the children are in their care, shall facilitate the children’s contacting by telephone, email or otherwise the other parent at any time and in any event, not less than on two occasions each week.
That subject to these orders the husband shall be solely entitled to the personal assets in his possession at this date.
That subject to these orders the wife shall be solely entitled to the personal assets in her possession at the date of these orders.
That the parties forthwith do all acts and things and sign all documents required to transfer to the wife the monies in the parties’ joint account with the ANZ Bank, the rental income being applied against the mortgage and the parties equally to meet any shortfall.
That from the monies to be received by the husband by virtue of the sale of real estate referred to below the husband shall pay to the wife, from his share of the proceeds of sale, the sum of $23,480.
That the parties do all acts and things and sign all documents required to effect the sale of the R property, the Melbourne property 2, and the Melbourne property1 nd to distribute the net proceeds of sale in the following manner and priority:
(a)       In payment of any mortgage registered over the title of any property;
(b)       In satisfaction of any capital gains tax assessed consequent upon the sale;
(c)       In payment of 55% of the balance then remaining to the wife;
(d)       The balance to the husband.
That each of the parties shall provide to the other if requested, or to an accountant engaged by either of them to prepare returns in relation to capital gains tax, any documents which are required to complete any return relating to capital gains tax and any documents required to effect the issue of a Certificate of Occupancy.
That each party shall be solely entitled to the exclusion of the other to his or her respective superannuation entitlement.
That in the event that either party refuses or neglects to sign a document to give effect to these orders then within 7 days of a written request to do so a Registrar of the Family Court of Australia, Sydney Registry, be permitted pursuant to Section 106A of the Family Law Act 1975 to execute any document in the name of the defaulting party required to give effect to these orders.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Lenard 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 SYDNEY

FILE NUMBER: SYC 1585 of 2010

Mr Rogers

Applicant

And

Ms Lenard

Respondent

REASONS FOR JUDGMENT

Before the Court are competing applications by Mr Rogers (“the husband”) and Ms Lenard (“the wife”) relating to the parenting arrangements for their children and the division of their property.
The parties were married in December 1993 and finally separated on 28 February 2009. There are two children of the marriage X born in September 2003 and Y born in July 2005.
The husband has remarried and he and his wife, Mrs Rogers (“the stepmother”), have a new son, M, who is six weeks old. The wife has not repartnered.

the parenting proceedings

The dispute in relation to the children relates to their primary place of residence. Their husband seeks an order that the children live with him in Sydney and the wife seeks an order that the children live with her in Melbourne.
Each party sought orders that there should be equal shared parental responsibility for the children.
On the first day of the hearing, the Court, and the husband, learned for the first time that it was the wife’s proposal that she would move to live in Melbourne with or without the children. That had not been a position which was explained to Dr B, who was the court appointed expert, and neither was it the wife’s position on the first day of the less adversarial trial which took place on 20 December 2011. The wife gave evidence that she had come to that position within the last few months. The wife swore an affidavit in the proceedings on 21 June 2012, only days before the commencement of the hearing, but in that affidavit she makes no mention of her intention to live in Melbourne regardless of the place of residence of the children. She did not give evidence-in-chief in relation to her intention to move to Melbourne with, or without, the children.
Both of the parents are school teachers. During the time the parties were together the husband worked full time. During the marriage it was a condition of his employment that he coach school sports and for that purpose that he attends both training events on week days and matches on Saturday morning. The wife was well aware of those commitments. The husband continued in the same employment after separation.
During the marriage the wife worked part time, teaching and tutoring, and she continued in the same employment after separation.
After the parties separated in February 2009 they were able to negotiate and agree upon the appropriate arrangements for the children. Because the wife’s work took place on Tuesday and Thursday evenings and on Saturday afternoons the parties agreed that the husband would care for the children each Tuesday and Thursday evening until the wife returned from work at about 10.00 pm and on Saturday afternoons until the wife returned from work at about 6.30 pm. They also agreed that the husband would see the children, in February and March, on Sunday mornings when he would take the children to Nippers.
The husband did not have any overnight time with the children during 2009 because he did not have suitable accommodation. He was criticised by Counsel for the wife for not giving priority to adequate accommodation over consolidating his financial position. He had access to the joint accounts until December 2009. He withdrew $41,000 in 2009. He chose not to look for independent accommodation. It was his evidence that he started asking for overnight time with the children in about April 2010 and then looked for suitable accommodation for the children.
While the wife criticises the husband for not having overnights with the children in 2009, when he asked her to allow overnight time in April 2010 she would not agree. It was not until the matter came before the court that the husband was able to have the children overnight.
In addition to the time that the husband spent with the children whilst the wife was working, the paternal grandmother also assisted in the care of the children during 2009 when the wife needed assistance.
On or before 15 December 2009 the wife, without informing the husband, took the children to Melbourne to spend Christmas with the maternal grandmother. The wife returned to Sydney leaving the children with the maternal grandmother and on 14 January 2010 met with the husband. During that meeting the husband was told that the children were still in Melbourne. By that time he had not seen the children since prior to 15 December 2009. The evidence does not establish when the wife caused the children to be returned to Sydney. However the husband was not able to spend any time with them over the Christmas period.
The husband gave evidence that during the Christmas 2009/2010 holidays the wife was working casually throughout the holidays earning approximately $1,000.00 per week. It would appear that she left the children with their maternal grandmother so that the grandmother could care for the children while the wife worked. There is no suggestion that the husband was offered that opportunity.
Both of the children attend S primary school. Y’s first day at school occurred on 29 January 2010. The husband attended at the school with Y as did the wife. The husband, according to the wife, took numerous photographs of Y and was very excited. The wife determined that the husband had taken enough photographs and held a large sheet of cardboard in front of Y’s face to prevent the husband from taking any more photographs. She told the husband that she had called the police and to avoid any confrontation the husband left the school. The wife was unable to give any logical explanation about the reason for calling the police or the necessity to do so.
The husband next saw the children on 20 February 2010 when he met them on the beach in the company of the maternal grandmother. The grandmother gave evidence that she was concerned that the husband had not seen the children and she arranged for them to be at the beach where she believed the husband might be. She did not suggest that the wife was aware of her arrangement or that it was prompted by the wife.
From about 23 February 2010 until June 2010 the husband saw the children by going to their school. He made arrangements with the headmistress of S primary school to come to see the children during recess, lunch or morning assembly and he made arrangements with his employer to start work late on Tuesdays so he could go to the school on Tuesdays.
The wife gave evidence that the reason the husband was not seeing the children during this period was that he was uninterested. I do not accept that evidence, having regard to the efforts he made to see them at school.
Annexed to the husband’s affidavit are copies of the correspondence from the husband’s solicitor to the wife asking for time with the children and copies of emails sent by the husband to the wife on numerous occasions between the beginning of March 2010 and May 2010.
The wife in cross-examination gave evidence that she responded to the husband’s emails by text message and tendered a printout of text messages from her telephone.
On 26 February 2010 the husband sent an email to the wife asking for time with the children on Saturday 27 February, Wednesday 3 March, Saturday 6 March and Sunday 7 March. He received no response to that request and he forwarded the email again to the wife on 3 March 2010. The wife on 3 March 2010 sent the husband a text message saying “Yes 6.30 pm at [W park]”. There is no indication of what time the text message was sent. On 4 March 2010 the wife sent an email to the husband agreeing to time on that day (not a day that the husband had requested to spend time with the girls) and declining his request for time on either 5 March or 7 March. On 5 March 2010 the husband sent an email to the wife referring to an offer of time with the children the previous day which had arrived too late for him to be able to accept. He again sought to make arrangements to spend time with the children. That email was reforwarded to the wife on 6 March 2010.
On 8 March 2010 the wife sent an email to the husband asking if he would like to see the children on Wednesday afternoon at the park from 3.30 pm. The husband was unable to accept that suggestion because he was required for coaching on Wednesday afternoons, a matter which must have been known to the wife. On 9 March 2010 the wife sent an email to the husband repeating the same offer.
On 10 March 2010 the husband advised the wife by email that he was required to work on both Monday and Wednesday afternoon and that he wished to make ongoing arrangements to spend time with the children including weekend arrangements. The wife replied by text message proposing that the husband see the children at the park from 5.45 pm. He did so.
On 15 March 2010 the husband requested by email time with the girls on Thursday 16 March and on the following Saturday. That email was reforwarded to the wife, in the absence of any reply, on 16 March.
On 19 March the wife sent a text message to the husband suggesting that he spend time with the girls on Sunday afternoon.
On 3 April 2010 the husband sent an email to the wife asking to have time with the children over Easter. He pointed out to the wife that he had been denied the opportunity of seeing the children over the Christmas holidays and said that he would like to have time with them both during the Easter period and during the school holidays. The wife replied to him by text message on the same day saying that she had already made arrangements for the children for Easter. On 5 April 2010 the wife sent a text message to the husband advising that arrangements had already been made for the Easter holidays and offering time with the children on the weekend of 17 April.
In neither of those text messages did the wife advise the husband that she intended to take the children to Melbourne for the Easter school holidays. Without notice to the husband and without allowing him any opportunity to see the children during the holidays the wife took the children to Melbourne between about 1 April and 18 April 2010.
On 19 April 2010 the husband sent another email to the wife noting that he had not been able to see the children the day before, as he had been promised, and asking to see them the following weekend, preferably all day Sunday. On 22 April 2010 the wife sent a text message to the husband offering him time with the children on Friday from 3.30 pm or Monday from 4.00 pm. There was no explanation by the wife for her consistent refusal to accede to the husband’s request for time with the children on a Saturday or Sunday when he was not working.
The parties appeared in the Federal Magistrates Court on 29 April 2010 for the dissolution of their marriage. On that day the wife told the court, in response to the husband’s explanation that he was having difficulties seeing his children, that she wished to have contact with the husband only by telephone and text message as she did not have time to check her emails. She also told the Court that the husband could have time with the children over the weekend of 8 and 9 May.
The husband sought confirmation of the arrangements for the weekend in text messages sent on 3 May and 4 May and an email on 5 May. On 6 May the wife sent a text message to the husband asking if he wished to see the children on Sunday. On 7 May the wife sent a text message to the husband saying he could see the girls for three hours on Sunday.
The wife has refused to communicate with the husband by email since 29 April 2010. In all of the emails sent by the husband to the wife between March 2010 and May 2010 there was nothing in the tone of those emails that could cause offence to the wife. The wife has offered no explanation for her refusal to communicate with the husband via email, except for her explanation offered in the Federal Magistrates Court that she did not have time to check her emails. The wife has since closed down all of her email accounts.
Between 1 January 2010 and 12 May 2010 the husband had contact with the children out of school hours on Tuesday 2 March from about 8.45 am until 9.05 am; on Thursday 11 March from about 5.45 pm until about 7.00 pm at a park when the wife remained within about 10 m of the children at all times; and on Tuesday 26 April at the park again, with the wife remaining within about 10 metres of the children at all times. The husband says that he saw the children on about 16 occasions during the first half of 2010 of which all but two were at their school.
Whatever may have been the passage of emails and texts passing between the husband and the wife, I accept the husband’s evidence that they did not result in his having face-to-face time with the children other than the times when he went to the children’s school to spend time with them there, and the two occasions in the park referred to above.

On 11 May 2010 the wife sent a letter to the husband by Express Post advising him that she would be moving to Melbourne with the children at the beginning of July 2010.
On 19 May 2010 the husband went to the school to see the girls during their lunch hour. When he arrived at the school he was advised that the children were not at school and had not been at school for two days. Records produced by the school confirm that Y and X were both absent from school between 17 May 2010 and 20 May 2010. The husband was not told by the wife of any reason for their absence from school.
On 24 May 2010 the husband attended at the children’s school to have lunch with the children and was told by the children that they had been to Melbourne on an aeroplane the previous week. There is no suggestion that the husband was either advised that the children were being withdrawn from school to go to Melbourne or that he consented.
On Friday 11 June 2010 the husband visited the children’s school during the lunch break and was informed by the Headmistress that the children were not at school and had not been to school for the whole of the week. That evening the husband drove to the wife’s home and discovered that there were police officers in attendance. There was no evidence relating to the necessity for police to be at the wife’s home. They were not called by the husband. He asked the police officers to ascertain the whereabouts of the children. The husband was told, by a constable of police, that the wife was in the house but the children were not. Some time later the husband was told by the police constable that the children were with the maternal grandmother in Melbourne. The husband then returned home and telephoned the maternal grandmother and the wife’s sisters but received no answer. The husband left a message on the maternal grandmother’s phone.
The wife in cross-examination about these events insisted that the husband was well aware that the children had been taken to Melbourne, however, she is unable to point to any communication where she advised him of that fact and I accept his evidence that the children were taken to Melbourne without his knowledge.
The wife gave no explanation for taking the children to Melbourne in early June of 2010 when she had specifically advised the husband in her letter dated 11 May 2010 that she intended to take them in July. The wife’s evidence in her affidavit is that she and the children moved to Melbourne in the first week of June in 2010. They had obviously been in Melbourne for some time before the husband was aware that they had gone. Subsequently the wife withdrew the children’s enrolment at S primary school from 4 June 2010 and I infer that the children were taken to Melbourne on or before that date.
It was the wife’s evidence that she took the children to Melbourne with the intention that they should reside permanently in Melbourne. She gave no explanation about why she took the children and left them with her mother, and then herself returned to Sydney. It is not clear how long the wife stayed in Melbourne with the children but she refers in her affidavit to a telephone conversation with X on 12 June 2010 when she says “[X] spoke to me on the telephone from Melbourne.” The wife must have been in Sydney by 12 June 2010.
On 12 June 2010 the husband telephoned the home of the maternal grandmother but received no answer. He then telephoned the police who again advised the husband that the children were in Melbourne. The husband asked the police to investigate whether this was correct and called the maternal grandmother again but with no answer.
On the same day the maternal grandmother telephoned the husband and advised him that the children were with her. He asked her if he could speak with them and she told him that they were not available.
On 17 June 2010 the husband was advised by the principal of S primary school that the wife had withdrawn them from the school from 4 June 2010 and had informed the principal that the children had been enrolled at a school in Melbourne which she declined to name. Both her withdrawal of the children from their school in Sydney and her re-enrolment of the children at a school in Melbourne were without the husband’s consent or his knowledge.
Whilst the wife in cross-examination was adamant that the husband was aware and consented to her moving to Melbourne with the children I do not accept that evidence. I accept the husband’s evidence that his inquiries in relation to the children with the police were genuine and that he did not know where the children were. The wife is unable to point to any document, text message, letter or email in which the husband was advised either that the children were moving to Melbourne in the first week of June or that they were being enrolled in other schools and removed from their school in Sydney.
The wife deposes to a conversation with the husband at S primary school on 1 June 2010 where she says she told the husband that she had paid school fees for a private school in Melbourne where the girls would start on 7 June. Again she can produce no text, email or letter to corroborate that assertion and I do not accept it.
The husband took proceedings in the Federal Magistrates Court and on 9 July 2010 the Court made orders that the wife return the children to Sydney within 14 days and that the wife re-enrol the children at S primary school. The orders also made provision for the husband to spend a week with the children at the home of the paternal grandparents.
On 11 July 2010 the husband collected the children from the wife for the commencement of the week which was ordered by the Federal Magistrate. On 12 July 2010 he received a message from the wife asking if she could spend three hours with the children the next day. The husband agreed and arranged for the wife to collect the children at 12.00 noon from McDonald’s. The wife collected the children and did not return them until about 4.10 pm.
It is to the husband’s credit that he allowed time for the wife with the children in those circumstances and is indicative of his willingness to foster the children’s relationship with their mother.
On 19 July 2010 the husband ascertained that the children had not been re-enrolled at school and on 20 July 2010 he attended at the school but the children were not there.
Records produced by the school indicate that the children were re-enrolled on 26 July 2010.
On 6 August 2010 orders were made by consent in the Federal Magistrates Court for the children to spend time with the husband during school terms from 3.00 pm on Tuesday to 9.00 am on Wednesday and each alternate weekend from 12.00 pm Saturday to 6.00 pm Sunday. The children spent time with the husband according to those orders until early February 2011. On 1 February 2011 the wife advised the husband that she had organised for the girls to attend ballet lessons every Saturday starting at 12.00 pm, this in circumstances when the children were supposed to commence the time with their father at 12.00 pm. On 4 February 2011 the husband attended to collect the children at noon but the children were not delivered.
On 12 February 2011 the husband attended to collect the children at noon but the children were not delivered. The husband was informed that the wife had taken the children to work with her. They were delivered to him at 6.15 pm that evening.
On 26 February 2011 the husband arranged for his parents to collect the children. His parents attended to collect the children but the children were not made available. In the following week the husband instructed his solicitor to write to the wife’s solicitors requesting compensatory time with the children. She did not agree.
On 12 March 2011 the husband arranged for his parents to collect the children but they were not delivered.
On 26 March 2011 the husband collected the children at noon and this was the first time in 2011 that the husband had spent time with the children that was specified in the orders.
On 7 May 2011 the husband attended to collect the children at noon but they were not there. He sent a text message to the wife asking where the children were but she did not reply. The husband then went to the children’s ballet school where the wife, upon seeing him, put the children in a friend’s car and drove off.
On 28 May 2011 the wife requested that the husband collect the children from G Public School at noon. When he arrived the wife told the husband that X had a class at 12.40 pm and Y had a party at suburb T at 12.30 pm. When the husband asked the wife how he was to carry out both of those arrangements she replied “you sort it out”.
Up until July 2011 the husband had made arrangements with P Before and After School Care (“P”) to collect the children on Tuesday afternoons and look after the children until he could be there to collect them. Until July 2011 the wife made no complaint about those arrangements.
In July 2011 the wife determined that if the husband was not at the school by 3.00 pm to collect the children then she would remove them and they would not spend time with him on Tuesday evening. The wife gave evidence that she had made the decision to remove the children because the children were spending too much time in day care and not enough time with the husband. She was adamant in her oral evidence that she really wanted the children to spend time with their father and was unable to explain the inconsistency between her wanting them to spend time with the husband and refusing to allow him to have them on Tuesday afternoons and overnight.
On 19 July 2011 the husband arrived to collect the children at about 3.40 pm but the wife had collected the children and removed them.
On 26 July 2011 the husband arrived at the school at about 3.40 pm and was advised that the wife had removed them.
On 30 July 2011 the husband arranged for his parents to collect the children at noon on Saturday. His parents arrived to collect the children but the wife refused to let them go saying to the grandparents “[The father] knows the orders”. The wife’s complaint was that the orders, on her interpretation, required the husband personally to collect the children and she had determined that if he was not available to collect them then contact would not take place.
On 2 August 2011 the husband arranged for his parents to collect the children from school. They arrived at the school at about 2.45 pm and the wife was there. The Deputy Principal refused to let the children go with the wife. The wife started to scream and make threats and the school called the police. The children did not go with their grandparents on that day. Both children were absent from school for the period from 3 to 5 August 2011 and 8 and 9 August 2011.
On 13 August 2011 the husband again arranged for his parents to collect the children at noon on Saturday. The wife arrived with the children but refused to let them go with the grandparents.
On 23 August 2011, 6 September 2011, 13 September 2011, 20 September 2011, 11 October 2011, 25 October 2011, 1 November 2011, 8 November 2011, 15 November 2011, 29 November 2011 and 6 December 2011 the wife attended at the children’s school at 3.00 pm and refused to allow P Care to collect the children and the husband did not see the children on those days.
On 30 August 2011 the wife collected the children from school at 3.10 pm and the husband did not see them.
On 22 October 2011 the husband arrived to collect the children at noon on Saturday but the wife did not attend.
On 5 November 2011 the husband arranged for his parents to collect the children at noon on Saturday but the wife refused to allow the children to go with the grandparents.
On 4 February 2012 the husband arranged for his brother to collect the children at noon on Saturday but the wife refused to allow the children to go with their uncle.
On 18 February 2012 the husband arranged for his parents to collect the children at noon on Saturday but the children were not made available.
On 21 February 2012, 6 March 2012, 20 March 2012, 3 April 2012, 1 May 2012, 15 May 2012 and 29 May 2012 the husband arranged for P Care to collect the children from school but the wife arrived at the school at 3.00 pm and took the children.
On 28 April 2012 the husband arrived to collect the children at noon but the wife did not attend and the children were not made available.
On 22 May 2012 the husband arrived at the school at 3.00 pm to collect the children. The wife was at the school and waiting with the children but allowed them to go with their father.
On 15 May 2012 the husband received a letter from the wife offering time with the children on Friday 25 May 2012. He accepted her offer by way of a text message, this being a Friday when he was on paternity leave. He attended at the collection point and waited until 9.00 am but the children were not delivered.
On 2 June 2012 the paternal grandmother attended to collect the children but the wife did not permit the children to go with their grandmother.
On behalf of the wife it was argued that she had at all times complied with the orders of the court in relation to the times the children should spend with their father. It was her position that the orders required him personally to collect the children and that she was therefore entitled to refuse to hand the children over to any one other than the husband.
That position does not sit well with the fact that she, on occasions, caused her mother or her friend to deliver or collect the children, an arrangement which the husband accepted as sensible and practical.
While I do not accept the wife’s narrow interpretation of the orders, it is not her strict compliance with orders, but her willingness to encourage and facilitate the children’s relationship with their father, that I must consider.
The wife’s refusal to allow the children to be collected by anyone other than the husband had the effect that on many occasions as set out earlier, the children were deprived of the opportunity to enjoy his love and company. She gave no convincing explanation of her considered decision to deprive the children of the time with their father.
Against this factual background, I turn to consider the matters to which I must give weight in determining what orders are in the best interests of these children.
Dr B saw the family in July 2011.
The children were seen by Dr B together and with each of their parents. Because the wife had not, at that time, formed the intention to move to Melbourne with or without the children, that aspect could not be explored with them and their views in relation to their mother’s proposal are unknown.
Dr B reports both Y and X as appearing to have been rehearsed and expressing adult concerns. He reports that in the course of his conversation with Y, “[X] was mouthing to [Y] to say ‘that it was a bit better with mum’. Clearly she had been prompted to cue [Y] in what to say”. X, who was seven years old at the time of interview, told Dr B that she would be better off in Melbourne at an all girls’ school and that “dad wouldn’t spend much on us”. Both of the children expressed a dislike of being on the airport watch list, a somewhat adult concept for children then aged five and seven.
In contrast, when Dr B saw the two children with their father he reports that they both appeared very happy and relaxed with their father and that when Y, in her father’s presence, was asked if she had anything she wanted to say, she said that she wanted to see her family more.
When Dr B saw the children with the wife, the wife was clearly and obviously prompting the children.
In his conclusions in relation to the wishes of the children and the weight to be given to those wishes, Dr B reported:
I formed the view that the two children were developing normally both cognitively and emotionally for their respective ages. I believe that they both care equally about both parents and that they had a very close relationship with them and also their extended families on both paternal and maternal sides.
The children both made statements that suggested that they had been prompted by an adult supposedly the mother. They made statements that they slightly preferred the mother and that they wanted to go to Melbourne. My conclusion that they had been influenced by the mother was the prompting that I witnessed from [X] to [Y] by trying to say that she would prefer the mother slightly. Also it seemed rather odd that the children would use descriptions of preferring to be in Melbourne. They appeared to be giving adult interpretations of events. For example, saying that they’d prefer to be at an all-girls school rather than a mixed school. [X’s] description of liking mum better suggested that she had been prompted to show her preference. [Y] also said the same thing that she liked her mother better. [Y] indicated that one of the reasons she wanted to be with the mother was that the father buys “cheap stuff”. This was also a suggestion of being prompted. [X] said that “He didn’t send a text and he came anyway.” This again suggested that she’d been listening to or prompted by the mother. [X] also indicated that the father didn’t pay as much attention to medical needs and taking her to the doctor as the mother, again suggests that an adult was prompting her.
There is no reliable evidence of the children’s wishes.
Dr B in his conclusions says:
… I formed the view that the children both had a very close loving relationship with both parents or despite the stated preference for the mother, the interaction with both parents was equal and I formed the view that the closeness with both parents was equal.
Dr B did not observe the children with their stepmother and, at the time of the interviews, M had not been conceived. The stepmother in her affidavit evidence referred to a regime over the Christmas holidays in 2011/2012 which had the effect of helping Y deal with bed wetting. She gave evidence of a growing and strengthening relationship with the girls and about their happiness when M was born. In cards they prepared when M was born they refer to M as “our baby brother” and they prepared a drawing, grouping the names (the stepmother), M, Y, X and (the father) around a central heart.
The girls do drawings and make little gifts when they are with the husband and stepmother and some of those drawings were annexed to the stepmother’s affidavit. She refers to the girls appearing very happy and engaging easily with her. She says she loves them very much and understands that her role is not to replace their mother but to be an “extra parent”.
The stepmother demonstrated sensitivity for the girl’s reactions if they were to live with the husband. She is aware that their feelings towards her might change if they don’t see their mother and hopes that they will maintain a strong relationship with their mother so they don’t feel cut off from her.
X told Dr B that she liked (the stepmother) “a little, I like mum better”. Y also told Dr B that she liked (the stepmother) “a little”. There is no independent evidence of the relationship as it exists now between the children and their stepmother but neither is there any suggestion from the wife’s case that they have other than a good and appropriate relationship.
I have set out at length, earlier in these reasons, the evidence relating to the husband’s time with the children and the wife’s willingness to facilitate their spending time with him. There was nothing in the wife’s affidavit evidence, or in her oral evidence, which gave any comfort that the wife’s attitude in relation to the children’s spending time with their father will be different, if she is permitted to live with the children in Melbourne, and the Court can have no confidence that, in the event the wife is permitted to relocate with the children to Melbourne, the children’s relationship with their father will be sustained.
Dr B in his report said:
I don’t have confidence that the mother would support regular substantial contact between the children and the father. There are signs of the children being influenced against the father by the mother, such as the children’s comments about preferring Melbourne over Sydney and also the father not wanting to spend money and not wanting to pay enough attention towards their health. There are signs that the mother has been questioning the children and putting a certain degree of influence to have these negative feelings about the father.
However this influence has not been extreme and as yet the children have not developed alienation. However, I do have concerns that should it be difficult for the father to have regular contact with the children. I don’t believe there is a strong commitment from the mother to ensure handovers and transport would work effectively. The father would need to travel to Melbourne to see the children and there would also be significant issues with regard to handovers. I therefore, believe that there is a significant risk that the relationship between the children and the father could be jeopardised if the children and the mother relocated to Melbourne.

In his oral evidence, Dr B said that, of the factors which must be taken in account when determining what arrangements were in the best interests of the children, the greatest weight should be given to the parent who is most likely to give the children the opportunity to have a relationship with the other parent.
He said that the husband is the parent most likely to be able to achieve that result. He said that there is a risk that the children, with the wife and the extended family in Melbourne may find the enmeshed relationship of the maternal family will make it difficult for the children to have confidence seeing their father. Dr B said that the children are already attuned to the wife’s needs and making sure she is happy with what they say and do but that he did not have the same concerns of the children with the husband.
Dr B in his report says:
Should the children reside with the father I believe, that he would be able to care for them well. He does have a demanding job and it would be very challenging for him to care for the children if they were in his care in a permanent amount of time. Nevertheless, I do believe that he would also support a relationship with the mother. There is no suggestion that the father had been attempting to question or influence the children. In fact, the father, although perhaps a bit oversensitive and concerned about the mother attacking him, there was no indication that he was trying to wrest the children from the mother. I believe that the children would be puzzled and concerned about the mother. The mother would be extremely distressed about not returning to Melbourne but also about not having the primary care of the children. This would be a major worry for her.
In essence, the issues in this matter appear to be firstly whether the mother should relocate to Melbourne to be close to her family. I formed the view that the relocation to Melbourne was as much about trying to move the children from being near the father. I do believe that there is a significant risk of the children becoming distanced from their father and that his ability to maintain his relationship with the children would be far diminished should the children be moved to Melbourne. The compensating benefits of reducing the stress on the mother and the closeness with the extended maternal family, I do not believe, would outweigh the loss in diminishing relationship with the father. I do see the father as extremely important and an essential part of the children’s upbringing.
It is also of significance that the children now have a small step-brother. He is only six weeks old. If they are removed from regular and frequent contact with him, his relationship with them as siblings will not be able to develop to its full potential and their relationship with him will not have an opportunity to be developed.
I do not accept that the wife will move to Melbourne if the consequence is that the children will live in their father’s care. Although she said in her oral evidence that this was a position that she had come to in the last few months it is not a position that she appears to have given a great deal of thought. Throughout the hearing, she had no proposal about the time she would spend with the children if she moved to Melbourne and they remained in Sydney. She gave no evidence-in-chief about her intentions or her proposals. She appeared to have given no consideration at all to the effect on the children if she moved to Melbourne and they remained in Sydney although she was adamant in cross-examination that the children were her priority rather than moving to Melbourne.
In submissions on behalf of the wife it was put that she would not move to Melbourne unless the children were permitted to relocate. Her counsel prepared suggested orders on the alternate bases that:
1.the children live with the mother in Melbourne;
2.the children live with the father in Sydney and the mother lives in Melbourne
3.the children live with the mother in Sydney
4.the children live with the father in Sydney and the mother lives in Sydney.
She gave no evidence about what she proposed in relation to those four scenarios and I am left with no evidence about what she intends except that it is obviously in her contemplation that she and the children may live in Sydney, whether the children live primarily with her or with the husband.
In the event that the wife decides to remain in Sydney then there are no practical difficulties in the children spending time with both of their parents.
In the event that the wife moves to Melbourne without the children or that the wife moves to Melbourne with the children there will be considerable difficultly in arranging for the children to spend time either in Sydney or in Melbourne with the non-resident parent. There is no evidence before me of the expense which would be involved but clearly each of the parents would be required to pay airfares and accommodation for themselves and on occasions for the children.
Elsewhere in these reasons, concerns have been expressed about the wife’s willingness and ability to foster the children’s relationship with their father.
Her position, stated in her oral evidence, in relation to the move to Melbourne causes further concerns about her willingness and ability to give priority to the children’s needs where their interests do not coincide with her wishes.
Dr B, when asked to comment on the significance which should be placed on the wife’s stated position, that is, that she would move to Melbourne with, or without, the children, found her attitude “quite extraordinary”. He said that most parents would make it quite clear that what is best for the children comes first and what is best for the parent comes second. Dr B queried whether the wife was engaging in “brinkmanship”, a matter about which I can make no finding in the absence of that proposition having been put to her in cross examination. He went on to say that if the wife is desperate to be with her family, knowing that the children will be well enough cared for by the husband, and that she would have a relationship with them on a regular basis, then he was concerned that her intense need was making it difficult for her to put the children’s needs before her own.
In his report, Dr B says “I recommend that, should there be a strengthening of alienation, between the children and the father or should the mother not be facilitating the contact and arrangements become unpredictable or irregular then a change of residence to the father may be the only way of ensuring that the children have a good relationship with both parents” (my emphasis).
Dr B’s report was dated 4 July 2011 and his interviews with the family took place in May 2011. It was in July 2011 that the wife decided that the children would not be handed over to third parties, either after school, or on Saturday, and from July 2011 until June 2012, the contact arrangements were increasingly unpredictable and irregular. I can make no finding that there has been a strengthening of alienation of the children from their father and I do not do so. However I am satisfied that since July 2011 the wife has not been facilitating contact and arrangements have become unpredictable and irregular.
It is significant that the wife’s decision not to make the children available to the husband if he did not attend to collect them in person was made in July 2011. The wife must have received Dr B’s report soon after she made that decision. His strong recommendations do not appear to have caused her to reflect on her decision.
Both parents and the stepmother are teachers. All of them are capable of fostering the children’s educational needs.
The husband gave evidence that he will continue to live in proximity to S primary school so that the children do not have to experience “the rigours of changing schools” and will have the benefit of remaining with friends and familiar teachers.
The wife gave no such evidence and in submissions her counsel said that she would live where she could afford to buy a home, but could not say whether the children would remain at S primary school.
Another matter of concern to the husband is the children’s poor attendance record. Documents produced by S primary school show that, in 2009, X had 9 absences and 9 partial absences of which 7 were between 8.45 am and up to 10.20 am.
In 2010, X had 16 absences and 7 partial (morning) absences and Y had 10 absences and 2 partial absences (morning). These absences do not include the period between 4 June 2010 and 26 June 2010 when the children were unilaterally removed from the school by the wife.
In 2011 X had 9 absences and 25 partial absences of which 20 were from 8.45am and Y had 13 absences and 20 partial absences of which 14 were from 8.45am.
The wife explained some of X’s absences as illness and some of her partial absences as attendance at doctor’s appointments. Y’s absences, including partial absences, are largely unexplained.
The husband’s concerns about the wife’s commitment to having the children at school and getting them to school on time are legitimate.
The husband asserts that there has been, throughout his relationship with the wife, a pattern of her being violent towards him. In an affidavit sworn 30 June 2010 the wife said “throughout 2009 there had been a number of arguments between the husband and myself which had become violent and had involved the police.” However, in her oral evidence the wife was adamant that the husband had never done anything physically violent and in her affidavit sworn 21 June 2012 she stated “In 16 years of marriage, other than in January 2010, there has been no violence between [the father] and me” (I interpose that the violence in January 2010 was the wife’s stabbing the husband in the knee with her car key described later in these reasons). It is difficult to reconcile the wife’s two opposing statements. If I accept her evidence, given on oath in cross-examination and repeated more than once, that there had never been any physical violence from the husband, then I must assume that in her affidavit sworn 30 June 2010 she was willing to exaggerate in order to gain an advantage.
The husband asserts that there was an occasion very early in their relationship when the wife attempted to stab him with a Swiss Army knife. The wife denies that this occurred. I can make no finding.
The husband also asserts that on the day that the parties separated the wife brandished a knife towards him and threatened him with the knife. Although he says that he told police officers attending on that day about the knife there is no reference in the notes produced by the police to the existence of a knife or any threat. Again I can make no findings.
However there was an occasion on 24 January 2010 when the husband and wife met to discuss the children. On that occasion the wife stabbed the husband with her car key into his knee. He was taken by ambulance to Hospital and the wife was charged with assault. She pleaded guilty to the charge. No conviction was entered and she was directed to enter into a bond to be of good behaviour for six months. That incident causes some concern about the wife’s propensity to react violently.
The paternal grandmother gave evidence about an incident in July 2009 when she was caring for the children. She recorded the incident in her diary. In the presence of the children, the wife became so aggressive that she brought her face within an inch of the grandmother’s face while screaming at her.
The husband in cross examination said that he preferred not to see the wife in a private place. Counsel for the wife submitted that his evidence was patently fabricated. I do not accept that submission, I did not understand the husband to be expressing any fear of future physical violence from the wife but rather fear of her involving police which she has done on a number of occasions. The wife called the police to the home on the day of separation although she alleges no violence. She stabbed the husband with her key in January 2010. She called the police to the school on Y’s first day. She instituted proceedings seeking an Apprehended Domestic Violence Order in August 2010, again in circumstances where she maintained in cross examination that the husband had never been violent. The husband is justified in his apprehension about the wife’s behaviour towards him causing difficulties in the future.
In submissions, Counsel were asked to explore the possibility of making an interim order that the children live with the wife in Sydney as a way of ensuring that orders in relation to the children’s time with the husband would be given effect. Although both counsel saw some merit in the proposition, it was pointed out that an inevitable result would be that final orders for property settlement could not be made and that would have the effect of making it difficult for the wife to rehouse herself, as the home in which she lives will be sold. Ultimately, that solution has proved inappropriate. While it may have the effect that the wife will comply with orders in their spirit, and not just their letter, for the period of the adjournment, there is no evidence that such a regime would have a positive effect on the wife’s willingness and commitment to foster the children’s relationship with their father.
In weighing the factors which I am required to consider, I have placed the greatest weight, in accordance with the expert evidence, on the willingness and demonstrated commitment of each parent to foster the relationship of the children with the other parent. Despite the orders made in the Federal Magistrate’s Court on 6 August 2010, the wife has repeatedly failed to facilitate the husband’s time with the children. During cross examination, the wife refused to accept any responsibility for the disruption of the husband’s time with the children and emphasised that it was because the husband had not complied with the orders by not collecting the children in person that he had not had time with the children. The wife provided no assurances that she would facilitate the father’s time with the children in the future. In light of these matters and those discussed above, I cannot be confident that if the children live with the wife, she will facilitate their time with the husband.
In cross examination, Dr B gave evidence that the children may be anxious about their mother if they do not live with her but that he believed the children are robust and that it “wouldn’t be too great an adaptation” if they live with their father and spent time with their mother. The children will have the advantage, in his household, of forming and consolidating their relationship with M and their stepmother and of an ongoing relationship with the paternal grandparents. They will also spend substantial and significant time with their mother in accordance with her proposal.
Each of the parents submitted that the children should spend time with the other parent on alternate weekends, Tuesdays over night and for half of school holidays. Neither sought to extend the weekend time to include school days.
Although the parents agree that they should have equal shared parental responsibility, neither seeks an arrangement equivalent to equal shared time. Each seeks time which is substantial and significant. The orders which will be made are reasonably practicable although the children’s time with their mother will be more limited if she chooses to live in Melbourne.
I therefore propose to make the orders in relation to parenting as set forth above.

Property matters

The Court, after the conclusion of the hearing, was provided with the agreed balance sheet set out hereunder:

Assets	($)
1.	[R property] NSW	1,200,000
2.	[Melbourne property 1] VIC	720,000
3.	[Melbourne property 2] VIC	575,000
4.	ANZ Joint Account …58	20,315
5.	Husband’s Visa card	150
6.	Husband’s Suncorp shares	3,800
7.	Husband’s and [X’s] Pacific Brands shares	1,592
8.	Husband’s BHP shares (sold)	10,314.85
9.	Husband’s Telstra shares (sold)	4,313.85
10.	Wife’s Suncorp shares (sold)	4,031.76
11.	Wife’s Telstra shares (sold)	4,208
12.	Wife’s Pacific Brand shares (sold)	1,592
13.	Wife’s shares interest	21.01
14.	Household contents of [R property]	4,142
15.	Household contents of [K property]	1,500
17.	Husband’s ANZ Access cheque Account #...047	5,285.66
18.	Husband’s ANZ E Trade Cash Account #...76	20.44
19.	Wife’s ANZ account, ending in 633 – progress save	20.16
20.	Wife’s ANZ account, ending in 938 – access	1,750
21.	Wife’s ANZ Visa Card (debit card)	901.60
Addbacks
22.	Payment of funds withdrawn by wife in December 2009 from Joint Accounts	Judge to rule
23..	Transfer of Family Astra to [the wife] in July 2010	$6,000
24.	Husband’s withdrawal from joint account	$41,500
TOTAL	$2,606,458.33

Liabilities	($)
25.	Members Equity Bank held over [R property] NSW	454,000
26.	Members Equity Bank held over [Melbourne property 1] VIC	326,000
27.	Aussie Home Loans held over [Melbourne property 2] VIC	305,000
28.	Husband’s Capital Gains Tax to ATO for sale of [Melbourne property 3] VIC in 2011	11,000
Total Liabilities	$1,096,000

Superannuation	($)
29.	Husband’s NGS Super	136,553.32
30.	Wife’s NGS Super	91,265.96
Total Superannuation	$227,819.28

Nett Assets	$1,510,458.33
Nett Asset Pool (inclusive of Superannuation):	$1,738,277.61

In relation to the real estate, it was agreed that the R property would be sold. The husband wished to retain the Melbourne property 2 and to transfer the Melbourne property 1 to the wife.
The wife wanted to retain the Melbourne property 2 and did not want to keep Melbourne property 1.
Neither party led evidence to justify those positions and the properties will be sold. Capital gains tax will apply in relation to the two properties in Melbourne.
No submissions were made by either party about the manner in which I should treat the superannuation interests of the parties and I infer from their balance sheet that it is agreed that the superannuation should form part of the pool of assets. No splitting orders have been sought.
Because the three properties will be sold, there will be sale costs, and the vicissitudes of the market, to affect the ultimate amount available for distribution. In addition, capital gains tax will be payable in relation to the Melbourne properties but there is no evidence of the likely liability.
The only disputes arising out of the balance sheet relate to the “add backs” asserted by both parties.
The husband asserts that sums totalling $91,120 were withdrawn by the wife from the joint accounts, or debited to his Visa card by the wife, between 2 November 2009 and 30 December 2009. He seeks an add back against the wife of $45,560.
In his Amended Initiating Application he lists $10,666 debited to his visa card, $21,000 in cash withdrawals and $50,800 transferred from the joint account to the wife’s account.
To his affidavit the husband annexed the statement showing the transfer of $50,800. The wife agreed that she had transferred those funds. It was her evidence that she had used the money to pay various tradesmen for work done on the R property. She lists payments totalling $58,750 although she did not produce any receipts or invoices to corroborate her recollection. However, her evidence in relation to these transactions was not challenged.
Between October 2009 and January 2010 the wife made purchases totalling approximately $10,666 from the Visa card in the husband’s name for which she had a supplementary card. The major purchase was a table for which she paid $3,550. She appears on the statements to have paid for the table twice, on 3 October 2009 and again on 17 December 2009. Her evidence is that she purchased the table on 2 November 2009 and that the husband was with her when she made the purchase. Both the wife and her mother gave evidence that the grandmother gave the wife $5,000 to pay for the table. In any event, the table is reflected in the value of the contents of the wife’s home.

The wife withdrew $21,000 from the joint ANZ account between 7 December 2009 and 24 December 2009. The wife’s evidence that $6,000 was paid to tradesmen was not challenged. She also said that some of those funds were used to pay school fees.
The transactions occurred at a time when the wife had access, both to the joint account and to the Visa card, with the husband’s agreement. There is no evidence that the funds were used other than to pay for work on R property and for day to day living expenses during a period when the children were in the wife’s care and it is not appropriate that they should be added back.
The wife asserts that the husband withdrew $41,500 from the ANZ joint account between 24 April 2009 and 23 December 2009. He largely accepted that he had made the withdrawals and said the money had been spent on tradesmen working on R property and for living expenses. On the same basis, there will be no add back.
It appears to be agreed that I should add back the sum of $6,000 for the transfer of the Astra vehicle to the wife. No other evidence was led in relation to that transaction and I rely on the agreed balance sheet.
Thus the net assets (including superannuation entitlements) of the parties at trial are:
Assets$2,792,777.60
Less liabilities $1,096,000
NET ASSETS FOR DISTRIBUTION $1,696,777.60

Section 79(4) contributions to date of separation

The parties had modest assets at the commencement of their relationship. The husband had savings of about $5,000 and the wife of about $20,000.
They each worked as teachers, the husband earning more than the wife.
During their relationship they bought and sold property. In order to assist them the wife’s mother lent $100,000 for about six months, interest free and the wife’s sister lent $20,548.95 for a short period. Both amounts have been repaid.
The wife received a redundancy payment but as the whole period of her relevant employment occurred during the marriage, I give that no weight.
From separation the husband’s salary continued to be paid into the joint account, to which the wife had access and from which she made drawings, until December 2009 when the wife closed the account. Thereafter the husband had no access to their joint savings but the wife continued to withdraw funds from the joint accounts.
After separation, the mortgages on the three properties retained at the date of hearing (and on the property disposed of after separation) were paid from funds which had been accumulated by the parties during the relationship. Thus the wife, after separation, and for more than three years, remained living in the former matrimonial home on which the mortgage was being paid from joint funds and the husband paid to rent premises.
The wife continued to do some work on the matrimonial home, the building not being completed when the parties separated, and she had a greater share of the care of the children.
I find that the contributions of the parties until the date of hearing were equal.

Section 75(2) considerations

The husband is employed as a senior teacher earning approximately $122,000 per annum. His wife, who is currently on maternity leave, is also a teacher of 18 years experience and earns $98,000 per annum. She also has superannuation accumulated over 18 years, although there is no evidence of the value of that interest, and she owns a home unit in suburb V with an equity, on her estimation, of $210,000. They have a small baby, M.
The wife has not repartnered. She is currently teaching part time and earning about $72,000 per annum. She chooses not to work full time but there is no evidence which suggests that she could not do so. I do not know how much more she could earn if she worked full time but she will have that opportunity if she so wishes.
Each of the parties will retain superannuation, the value of the husband’s fund being $136,553 and the wife’s fund $91,266. The parties are both in their early forties and will not have access to superannuation for many years.
Both parties will need to provide housing for the children as each will spend substantial and significant time with them.
The husband’s household has two income earners who can contribute to their joint expenses and that of their children, and the wife’s has only one. The husband’s family will have two superannuation entitlements and the wife’s only one. However, the husband will have the greater burden of the expenses of the children and, if the wife continues to work part time, her contribution by way of child support may be limited. There should be an adjustment in favour of the wife.
The adjustment in the wife’s favour should be 5 per cent so that she will receive 55 per cent of the net property and the husband will receive 45 per cent.

Just and equitable

The wife will retain assets totalling approximately $933,000, depending on the ultimate sale price of real estate and the capital gains tax liability. The husband will retain assets totalling approximately $763,000.

Orders which should be made

Excluding the real property and the monies in the joint account, the husband has, or has had the benefit of, assets and superannuation totalling $163,530.12. He is liable for capital gains tax incurred on the sale of a property in 2011 of $11,000 leaving him with net personal assets of $152,530.12.
The wife has, or has had the benefit of, personal assets including superannuation totalling $113,932.49.
Thus, including the joint account, the parties’ net personal assets are:
Joint account $ 20,315
Husband$152,530
Wife$113,932
TOTAL$286,777
The wife is entitled to 55 per cent of the personal asset pool or $157,727 so she will receive the money in the joint account and the husband will pay to her, from his share of the proceeds of sale of the real property, the sum of $23,480.
The net proceeds of sale of the real property will be divided, after payment of selling costs and capital gains tax liability as assessed, in the same proportions.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 July 2012.

Associate:

Date: 13 July 2012

[2012] FamCA 551

13 July 2012

Key Legal Topics

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Family Law

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Jurisdiction

Procedural Fairness

Remedies

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