Royston and Reynolds

FAMILY COURT OF AUSTRALIA

ROYSTON & REYNOLDS

[2008] FamCA 804

FAMILY LAW – CHILDREN - Best interests
FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

APPLICANT:

Mr Royston

RESPONDENT:

Ms Reynolds

FILE NUMBER:

SYF

2099

2006

DATE DELIVERED:

2 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

28-29 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

COUNSEL FOR THE RESPONDENT:

Mr Campton

Orders

Children’s Issues

The children C born … March 1998 and N born … August 2000 live with the husband as follows:
(a)       During school term:
(i)in each 14 day period, in Week 1 from after school Thursday afternoon until the start of school Monday morning, and in Week 2 from after school Wednesday afternoon until the commencement of school Friday morning;
(b)       During holiday periods:
(i)for half of each school holiday period as agreed between the parties, but failing agreement for the first half of each school holiday period in a year ending with an odd number, and for the second half of each school holiday period in a year ending with an even number;
(ii)each Father’s Day from 9.00 am to 6.00 pm;
(iii)
each Christmas alternating between 6.00 pm on 24 December and 2.00 pm on 25 December, and 2.00 pm on 25 December until

6.00 pm on 26 December each year with the children to be in the care of the husband from 6.00 pm on 25 December 2008;
(iv)on the children’s birthdays, in the event that the children are not ordinarily in his care then from 3.30 pm to 6.30 pm;
(v)in the event that the children are in the husband’s care on their birthday, then the wife is to have the children in her care from 3.00 pm to 6.30 pm on their birthday instead.
(c)       At all other times the children are to reside with the wife.
Either parent may travel overseas with the children during their respective school holiday residence periods provided:
(a)the travelling parent provides the other with two months written notice of his/her intention to travel, with such notice to include but not be limited to details of the departure and return times and dates, the travel arrangements, all destinations, and contact details of where the children can be contacted throughout the period of travel;
(b)that the travelling parent is to ensure the children telephone the other parent at least twice per week whilst they are travelling overseas;
(c)in the event that a parent wishes to travel overseas with the children for a period in excess of their school holiday residence period, then they may do so provided the other party agrees in writing. In the event that that occurs, then the non-travelling parent is to have the option to travel overseas for a similar period in the next appropriate school holiday period.
Both parties are to do all things and sign all documents necessary, including payment of all fees, to ensure the children’s Passports remain current.
The parent holding the children’s current Passports is to make the Passports available to the travelling parent within 14 days of the travelling parent complying with Order 2(a) hereof.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property Issues

Within 90 days of the making of these Orders the husband shall do all acts and things and sign all documents necessary to transfer to the wife all his title and interest in the property known as and situate at K in the State of New South Wales (“the [K] property”).
Simultaneously with the husband’s compliance of Order 6 above, the wife shall do all acts and things and sign all documents necessary to refinance Mortgage No … with the State Bank of New South Wales Limited over the K property into her sole name and the wife will simultaneously pay to the husband the sum of $83,877.
As against the husband, the wife is declared the sole beneficial owner as from the date of these Orders, of the furniture and contents currently in the K property.
Within 28 days of the making of these Orders the wife do all acts and things and sign all documents necessary to transfer to the husband all of her interest in the Ducati motor bike.
As against the husband, the wife be declared the sole beneficial owner as from the date of these Orders, of the jewellery collection and otherwise the personalty in her possession.
As against the wife, the husband be declared the sole beneficial owner as from the date of these Orders, of the musical equipment collection and otherwise the personalty in his possession.
The joint account with the Commonwealth Bank be closed with 14 days of the making of these Orders.
As against the husband, the wife be declared the sole beneficial owner of the funds held in her ING account, as from the date of these Orders.
As against the husband, the wife be declared the sole beneficial owner of the funds held in her Commonwealth Bank account, number 20… as from the date of these Orders.
As against the wife, the husband be declared the sole beneficial owner as from the date of these Orders, of all funds held in his Swiss Account (if any).
As against the wife, the husband be declared the sole beneficial owner as from the date of these Orders, of all funds held in his Commonwealth Bank account.
A against the wife, the husband be declared the sole beneficiary, at the date of these Orders, of the debt owed by LE to the husband or the proceeds of its repayment.
The husband and the wife each be entitled solely to the exclusion of the other, of all superannuation policies and entitlements in their respective names.
Save as otherwise herein provided, it is declared that each party has the sole obligation to pay and indemnify the other with respect to any debt presently in their name.
Any joint tenancy of the parties in any real estate is hereby expressly severed.
The parties do all acts and things and sign all documents necessary to give effect to these Orders.
In the event that either party refuses or neglects to execute any deed or instrument to give effect to these orders a Registrar of the Court or their appointee pursuant to section 106A of the Family Law Act may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.
The wife’s application for spousal maintenance is dismissed.
Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application.
Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely.
Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2099 of 2006

MR ROYSTON

Applicant

And

MS REYNOLDS

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the court are ones in which the parties seek orders in relation to parenting and for alteration of property interests and maintenance.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The wife was born in the United Kingdom in March 1959 and is presently aged 49 years.
The husband was born in South Africa in August 1960 and is currently 48 years of age.
The wife was educated in the United Kingdom and qualified as a medical technician in 1980. She subsequently acquired a second qualification as a medical technician in 1987.
In April 1987 the wife migrated to Australia and gained employment. In 1991 she obtained employment with a medical company T Limited and worked in that occupation from 1991 to 1993, earning approximately $60,000 gross per annum.
Prior to his arrival in Australia the husband worked for a company overseas. He arrived in Australia in 1994 and the parties met in that year and commenced cohabitation, the wife asserted in February 1995, and the husband asserted that they commenced cohabitation in June 1995.
It seems likely that the parties commenced cohabitation some time between March and June 1995.
In any event, although time is spent on this issue I do not think it matters much as to which date is correct.
The parties commenced cohabitation in 1995 and resided in rental accommodation. It was asserted by the wife that the husband was unemployed at this time and by the husband that he was then employed. The husband, the wife conceded, subsequently commenced employment with V Pty Ltd.
The wife, after suffering from back pains gained employment at a hospital for 20 hours per week in an occupation which was less stressful on her back. She augmented her income with various private work and her income in fact increased to around $70,000 per annum.
The wife asserted that at the time of commencement of cohabitation the parties shared expenses equally and that she and the husband each had motor vehicles, in the case of the wife a Daihatsu Charade motor vehicle and in the case of the husband a panel van and a motorcycle. The wife had savings of about $30,000. The husband asserted that he had about $100,000, the vehicles referred to, two guitars and no liabilities. The wife says that she does not know what the husband had in savings.
The parties purchased a property at K, New South Wales, for a sum of $341,000, as tenants in common in equal shares. The purchase incurred solicitors fees and stamp duty.
The wife asserted that she utilised her savings in the payment of stamp duty, solicitors fees, home and contents insurance and bank fees and says that she spent about $17,000 in relation to the purchase. The balance of her savings, being about $13,000, was applied in the purchase of shares in the company Qantas Limited. The balance required to complete the purchase was made available by the husband.
The wife asserted that at about the time the mortgage was taken out the wife’s income was in the order of $70,000 and that the husband was earning a similar amount. The husband asserted that throughout the relationship his income exceeded that of the wife, but he does not appear to put in issue the statement of the wife as to their relative incomes at this time.
The wife attested that the parties shared outgoings and expenses equally. The property at K was rented during 1999 for a time and the rent applied to the outgoings of the property. The parties at the time of the purchase each had and operated separate bank accounts.
A joint account was established to deal with the mortgage and the parties each transferred money from their separate accounts to that account to meet the mortgage repayments.
The wife established a separate ING account which she utilised between May 2001 and June 2005. Deposits were made into that account of an amount of $1,500 by the wife and other deposits from the wife’s parents of $2,500 for the benefit of the children, which was added to by the wife depositing a further $3,000.
The husband opened an account with the National Australia Bank and into that account deposited the sum of $1,500 received by him from his parents for the benefit of the children.
The husband had a bank account with a Swiss Bank. The wife says that the husband has been reticent about providing information concerning the account, but on hearing statements were tendered for the period from 30 December 2005 to 3 June 2008.
The parties married in March 1998.
C, the parties’ elder daughter was born in March 1998, and is presently 10 years of age.
The parties transferred to the United Kingdom for a period of about 12 months, commencing in December 1998, and returned to Australia in late 1999.
In late 1999 C began attending a crèche at the husband’s place of employment for two to three days per week, and the wife worked during those days.
Shortly before the birth of the child N the wife ceased working.
N, the parties’ second daughter, was born in August 2000, and is presently 8 years of age.
In February 2002 an amount was withdrawn from the mortgage redraw facility of $30,000 and applied to the purchase of a Toyota Camry Motor Vehicle.
In 2002, application was made to the local authority for approval to construct a parking spot in the matrimonial home.
In late 2002 the wife returned to work for one or two days a week.
In 2003 the child C began attending Kindergarten class at K Public School.
In 2003 N attended the ABC Daycare centre each Wednesday, Thursday and Friday.
In September 2003 the husband was granted 5,000 options in V Pty Ltd, his then employer.
In 2004 V Pty Ltd was purchased by the company VT Pty Limited.
The husband was granted 100,000 share options in VT Pty Ltd at a strike price of $US2.07. The options are exercisable at different periods.
In March 2004 the husband was paid a retention bonus of $US30,000 from VT Pty Ltd.
In March 2004 the husband’s shares in V Pty Ltd were purchased by VT Pty Ltd for an amount of $115,000 which was payable in three tranches.
In April 2004 the husband was paid the first tranche from the share buyout in the sum of $35,862 and deposited the amount to the credit of his Commonwealth Bank Account.
In April 2004 the wife withdrew a total of $30,000 from the husband’s Commonwealth Bank Account and deposited it to the credit of the Commonwealth Mortgage Account.
In July 2004 the husband received the second payment for buyout of V Pty Ltd shares in the sum of $68,099 and deposited it to the credit of his account.
In October 2004 the husband received the first payment of his retention bonus of $US13,399 (after tax) and deposited into his Commonwealth Bank Account.
The husband made a loan to LE in November 2004 in the sum of $50,000 and the amount was withdrawn from the husband’s bank account.
In 2004 the parties procured the local authorities approval for the development of the parking spot.
In December 2004 the husband took the family on a holiday to South Africa and some of their expenses were met by his family.
In January 2005 the husband withdrew $11,455 from his Commonwealth Bank to purchase a Ducati motorcycle, he says with the wife’s approval, which she denied.
In late January 2005 the husband subscribed to an employee share purchase scheme for VT Pty Ltd and purchased 2,000 shares.
The husband asserted that the parties separated on the 2 February 2005 at which time the balance owing on the mortgage on the matrimonial home was $29,805.
The wife visited the United Kingdom and the husband contributed the sum of $5,000 toward her expenses.
In March 2004 the children live with the wife and spend time with the husband each alternate weekend from Friday after school until overnight the following Thursday.
In March 2005 the husband received his final payment of his retention bonus from VT Pty Ltd in the sum, after tax, of $US18,656.
In April 2005 the husband received the final payment of the buyout of the V Pty Ltd shares and the gross sum of SF10587 is deposited to the credit of his Swiss Bank Account.
In April 2005 the husband withdrew $30,000 from the Mortgage redraw facility and deposited the said sum into his bank account.
On 1 May 2005 the husband was granted 30,000 options in VT Pty Ltd.
On 19 May the husband utilised $17,901 to pay the taxation impost on the V Pty Ltd share buyout.
On 23 May 2005 the husband withdrew an amount of SF4886 to repay his father for holiday expenses met by him.
On 24 May the husband received a Child Support assessment for the amount of $2,150.58 per month.
In June 2005 there was a reverse split effected on the husband’s share options and his 132,000 shares and share options become 13,200 share options and shares.
In July 2005 the husband purchased 200 shares in VT Pty Ltd under the provisions of an employee share purchase plan.
In September 2005 the parties received a demand for the removal of a wall at the matrimonial home from the local authority.
In December 2005 LE repaid her loan and the husband deposited it into his bank account.
In January 2006 the child N was enrolled in Kindergarten class at K Public School.
In January 2006 the husband paid the second taxation instalment with respect to the V Pty Ltd in the sum of $32,689.
In January 2006 the husband purchased a further 200 shares in VT Pty Ltd.
Rectification work and the completion of the parking spot at the matrimonial home was completed at a cost of $11,869 in May 2006.
In April 2006 an amount of $20,000 was withdrawn form the Mortgage redraw facility and used with other monies by the wife to purchase a Toyota Avensis motor vehicle for a price of $36,990.
In April 2006 the husband transferred $10,877 to the mortgage account.
In the same month an amount of $12,900 was withdrawn from the mortgage account to meet necessary improvements to the home.
In July 2006 the husband purchased 200 shares in VT Pty Ltd.
There was an incident in which the wife left the children at home and broke into the husband’s apartment. The wife expresses contrition and shame in relation to her conduct. In the event I think it was an aberration and does not reflect on her capacity to be seen as an effective caretaker for her children.
In December 2006 the parties were divorced.
The proceedings before this Court were commenced by an Application for Final Orders filed on 23 January 2006.
At the date of the hearing the parties had substantially agreed the orders which should be made in relation to parenting but there was an unresolved issue in relation to the extent of the period in the week in which the father did not have the children for the following weekend that the children should spend with him.

The Issues

The parenting issues in this case fall within a small compass. The parties are agreed that the children, C and N, should reside with the father from the cessation of school hours on Thursday to the commencement of school on Monday in week one and in week two from the cessation of school hours on Wednesday until the commencement of school hours on Thursday. The parties are also in agreement as to the other arrangements for the sharing of parental responsibility and time with the children between them. That agreement will form the basis for the orders made by me.
The issue between the parties seems only to be whether the children should spend an extra night with the father in week two so that the children would reside with him from cessation of school hours on Wednesday until the commencement of school hours on Friday. Such an arrangement would mean that the children would spend a total of six nights per fortnight instead of the present five nights.
The submission of the wife is that the present arrangements are satisfactory and settled and that they ought not to be changed, and are accepted by the children.
The wife further says that the change sought is motivated by a desire to reduce the payment of child support by the husband by a significant amount and not by any desire to provide additional benefit for the children. It appears from calculations made by the wife’s solicitor that a reduction would occur in child support in the order of $3,640 per annum. In my view, my determination of whether or not the children should spend another night with the father is not going to be influenced by the variation that would occur to the father’s child support obligation. I could however take into account, were I to think it so, that the father was motivated by this factor rather than a desire to provide care for the children, in determining his attitude to parenting.

The father says that he is not so motivated and that in a practical sense the additional time will enable him to better provide support for the children and benefit them. In addition, the father asserted that the arrangement for two nights is less disruptive to the children than a single night.
Although a significant amount of time was devoted to historical matters of child care which were previously in issue, given the current situation and the extent of agreement between the parties it seems to me that the mother is not saying and could not be seen as saying that the father is in any way unsuitable to care for the children. We are after all dealing only with one night being in issue in each two week period. Whatever the problems in the past it seems that the children are happy with the present arrangements. The mother had earlier expressed anxiety at the interruption to the children’s school routine by reason of a change in the arrangements with the father but that anxiety has not borne any fruit with a prior change and I think it likely that the proposed change to the present arrangements will fall into the same category.
The mother says that the father is struggling with the present arrangements and, in view of the launch of his new business, he will have increasing trouble and be unable to utilise the additional time with the children. For their part the mother reported that the children love their father and have a good time with him. They happily converse it seems with their mother as to what they have done and where they have been with their father. The children report that they like the father’s partner.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
In this case there is no issue that the parties should have shared parental responsibility. I have considered whether the parties should have equal time with the children and can find no basis for not making the orders sought by the husband which although not so providing will provide almost that amount of time with him. I am of the view that the time the children spend with him at the end of school week, in the way I propose to order it, will be less disruptive for the children and enable the father to play a really effective part in the children’s education. In this way he will be better able to make a contribution to their achievement of their potential in their school life as well as their life outside of school.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

These parties agree with this aim and that agreement is reflected in so much of the orders as are not in issue. I have come to the conclusion that the order I propose to make will afford the children the opportunity of spending more continuous school week time with the father in a way which is likely to be less disruptive of their school week, and better provide the children with the opportunity for contribution by the father to their achieving their potential in their endeavours in this part of their life.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is evidence of past problems with the father playing with the children in a way which caused hurt. There was also a suggestion, which was denied by the father, that he choked one child. I cannot determine the truth of those allegations but in any event that is not a current allegation and the airing of it, in my view, will afford sufficient deterrent and a reminder of the need for care in this regard. There is equally past evidence of the mother leaving the children alone whilst engaged in the pursuit of evidence whilst breaking into the husband’s then residence. I accept the mother’s acknowledgement of the inappropriateness of her behaviour and her assurance it will not recur. The attitude of the father to the proposed consent orders would suggest that he likewise accepts that this is not a current problem. Each of the mother and the father, given the orders that they have agreed to, do not suggest that there is any present likelihood of a child being exposed to physical or psychological harm or abuse or neglect or family violence.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

There was a Family Report produced in January 2007 and now a document also of historical interest. The parties have, it seems, moved on from there and made arrangements which extend prior arrangements for the shared care of the children involving the time with the father being enlarged. The mother reports in evidence that the children love their father and get on well with his partner. The father described the mother as a very loving mother who would do anything for the children. The view that the children expressed with enthusiasm to the Family Consultant was that their parents stop fighting and to their credit they have heard that cry from their children and save for the minor issue raised in these proceedings as to parenting at least, they have heeded it and for that they are to be commended.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The relationship of the children with each of the parents seems entirely appropriate and loving and the relationship of the children with the husband’s new partner also seems appropriate.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Each party has demonstrated, and I am sure will continue to demonstrate, their willingness and ability to facilitate a close and continuing relationship between the child and the other parent.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The change proposed by the orders is minimal and in my view no detrimental effect is likely. The children will have the advantage by reason of the change for greater input from their father into their school experience and will have a less disruptive intervention in their school week.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no significant practical difficulty or additional expense occasioned by the change proposed. Each of the parents under the scheme proposed will be able to spend significant school and weekend time with the children as well as holiday time.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Both of the parents have the capacity to provide for the needs so described of the children. The father’s partner provides some additional support.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children and their parents share similar backgrounds and lifestyles and traditions and, although the mother brings a United Kingdom origin to the relationship and the father a South African origin, it does not seem to me that there is anything in those backgrounds or in the current lifestyle or culture or traditions of the parties or the children which would warrant particular consideration in the circumstances of the order I propose.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In my view there is nothing within this category which is determinative in the orders I propose other than to say that it appears to me that both parties are living up to their present responsibilities of parenthood. The applications made by the father in relation to child support it seems have fallen within the ambit of the proper exercise of rights of review. I am informed that child support continues to be paid by him.
(j)any family violence involving the child or a member of the child’s family
There is no family violence in the parties’ current lives and to the extent that it has been a feature of the past is in my judgment a property of the past not the present nor the future.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is my view that orders that I have now made ought (barring unforseen events) reasonably meet the needs of these children and the capacity of the parents to parent their children for the term of their childhood. It is not in my view likely having regard to the order I propose that further proceedings in relation to the children’s care are likely to be instituted.
(m)any other fact or circumstance that the court thinks is relevant
There are none.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence leads me to the conclusion that each of the parties have been able when the dust of the emotional trauma of the failure of their relationship settled to come to an agreement substantially responsive to the needs of the children and their desire for an end of conflict. It is my view that having shown that sense of responsibly and sensitivity to their needs, and being able to work co-operatively for their benefit I can be comfortable with the view that they can work co-operatively for the sake of their children and involve each other in the undertaking of their separate responsibilities as parents and will facilitate each other participating in the fulfilment of that responsibility.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the parties close to equal shared time with the children and I find that to be in their interests.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

Property matters

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
The Court at the commencement of the hearing was provided with the balance sheet set out hereunder for its consideration.

The Balance Sheet

Ownership	Description	Wife’s Value	Husband’s Value
Joint	[K property]	$800,000.00	$800,000.00
Wife	ING Bank Account	$313.00	$313.00
Wife	CBA Bank Account	$2,400.00	$2,400.00
Husband	CBA Bank Account	$7,128.00	$7,128.00
Husband	[Swiss Bank account]	$1,343.00	$1,343.00
Husband	ING Bank	$10,956.00	$10,956.00
Husband	1,000 shares in [W] Pty Ltd	$NK	$0.00
Husband	Renault Scenic	$10,000.00	$10,000.00
Husband	1998 Ducati 900ss	$9,000.00	$9,000.00
Wife	2005 Toyota Avensis	$28,500.00	$28,500.00
Husband	Household contents in husband’s possession	$10,455.00	$10,455.00
Wife	Household goods in wife’s possession	$11,332.00	$11,332.00
Wife	Jewellery	$2,740.00	$2,740.00
Husband	[W Pty Ltd] shares (not disclosed by Husband)	$NK	Disputed
Husband	Loan Account with [W Pty Ltd]	$28,364.00	$28,364.00 Disputed
Husband	Suzuki Swift	$2,200.00	$2,200.00
Husband	Paid legal fees	$70,621.00	$70,621.00 Disputed as Asset
Wife	Paid legal fees	$46,671.48	$46,671.48
Total	$1,042,023.40 + NK	$1,042,023.40 + NK
(Husband)	Credit on account of legal fees in trust account of husband’s solicitor, Mr Karras	16,763.00	16,763.00
1,058,786	1,058,786

Liabilities	Description	Wife’s Value	Husband’s Value
Joint	CBA Mortgage	$97,038.00	$97,038.00
Husband	Capital Gains Tax on sale of shares	$4,228.00	$4,228.00
Husband	CBA Visa Card	$2,345.00	$2,345.00
Wife	CBA Mastercard	$2,800.00	$2,800.00
Wife	CBA Personal Loan	$23,000.00	$23,000.00
Wife	[CH] – Personal Loan	$5,000.00	$5,000.00
Wife	[NS] – Personal Loan	$5,000.00	$5,000.00
Total	$139,411.00	$139,411.00

Superannuation
Member	Name of Fund Type of Interest	Type of Interest	Wife’s Value	Husband’s Value
Wife	Health Industry Plan	Accumulation	$57,436.00	$57,436.00
Husband	AMP Custom Super	Accumulation	$178,749.00	$178,749.00
Total	$236,185.00	$236,185.00
Nett Asset Pool (inclusive of Super):			$1,155,560 + NK	$1,155,560 + NK
Nett Asset Pool (exclusive of Super):			$919,375 + NK	$919,375.00 + NK

Note: The bank account balances, credit card balances, paid legal fees and superannuation entitlements are subject to change and the exchange of documents

ADDBACKS
Repayment of Loan to [LE] during marriage, retained by husband after separation	$55,342.46	$55,342.46	AGREED VALUE But not conceded by Husband to be added back
The Husband’s redundancy less amount for legal fees ($110,247.45-$58,970.00)	$51,277.45	Disputed
[VT Pty Ltd] Shares (sold) less balance of Swiss account	US$33,419.71 – balance of Swiss account	Disputed
Part [V Pty Ltd] share instalment payment plus part retention payment (after tax)	$34,000.00E	Disputed

The first issue for consideration on the balance sheet is the value (if any) of the W Pty Limited shares and the husband’s loan account with that company. Produced in evidence is a balance sheet of the company for the year ended

30 June 2008
. That document discloses a total deficiency of assets of $26,681 and deficit on operating expenditure for the year according to the profit and loss account of $27,681. Whilst the loan account will afford the husband some advantage when the income of the company flows to profit and the shares have some value when there are assets to back them I can at the present time ascribe no asset value to either of them. That is not to say that I do not regard the company as valueless and note that it is the vehicle through which the husband intends to operate his business which on his predictions will be very profitable. For the present I remove them from the balance sheet.

1,000 shares in [W] Pty Ltd	$NK	$0.00
[W Pty Ltd] shares (not disclosed by Husband)	$NK	Disputed
Loan Account with [W Pty Ltd]	$28,364.00	$0
Total	$0

For reasons hereafter set out I decline to add back those amounts listed as “Addbacks” in the balance sheet submitted but include paid legal fees.
I find the assets and liabilities of the parties are as follows:

Assets	($)
K property (joint)	800,000
ING Bank Account (wife)	313
CBA Bank Account (wife)	2,400
CBA Bank Account (husband)	7,128
Swiss Bank account (husband)	1,343
ING Bank (husband)	10,956
Renault Scenic (husband)	10,000
1998 Ducati 900ss (husband)	9,000
2005 Toyota Avensis (wife)	28,500
Suzuki Swift (husband)	2,200
Household contents in husband’s possession (husband)	10,455
Household contents in wife’s possession (wife)	11,332
Jewellery (wife)	2,740
Credit on account of legal fees in trust account of husband’s solicitor, Mr Karras	16,763
Paid Legal Fees (husband)	70,621
Paid Legal Fees (wife)	46,671
Total Assets	$1,030,422

Liabilities	($)
CBA Mortgage (joint)	97,038
Capital Gains Tax on sale of shares (husband)	4,228
CBA Visa Card (husband)	2,345
CBA Mastercard (wife)	2,800
CBA Personal Loan (wife)	23,000
CH – Personal Loan (wife)	5,000
NS – Personal Loan (wife)	5,000
Total Liabilities	$139,411

Superannuation
Member	Name of Fund Type of Interest	Type of Interest	Wife’s Value	Husband’s Value
Wife	Health Industry Plan	Accumulation	$57,436.00	$57,436
Husband	AMP Custom Super	Accumulation	$178,749.00	$178,749
Total	$236,185.00	$236,185

Nett Assets	$891,011
Nett Asset Pool (inclusive of Superannuation):	$1,127,196

Section 79(4) contributions to date of separation

Initial Contributions

At the date of the commencement of cohabitation the wife contributed savings which she had of $30,000 and an unencumbered Daihatsu Charade motor vehicle valued at approximately $10,000.
At the date of the commencement of cohabitation the husband contended he had savings of about $100,000 in a National Australia Bank account and an amount of SF12,142 in a Swiss Bank account. The dispute between the husband and the wife of the extent of the husband’s savings was reduced to a difference of $10,000 on hearing, the wife asserting that the husband’s calculation was excessive by that amount. In the event I am unable to be satisfied as to whose version is correct and believe the difference to be of little significance in the outcome.

Contributions to date of separation

The wife asserted and I accept that during the period of the marriage the wife engaged in employment and applied her income and savings for the benefit of the family.
Each of the parties asserted and I accept that they each received gifts in the sum of $7,000 from their respective families and applied them for the benefit of their family.
During the marriage the parties made contributions to the maintenance and conservation of the home at K but the wife has been primarily responsible for its maintenance since separation.
The wife asserted and I accept that the wife had the primary responsibility for meeting the needs of the children on a day to day basis during the marriage. The husband also made a contribution to their care.
The wife asserted that the value of the parties’ contributions during the marriage should be assessed as equal. The husband asserted that his contributions should be assessed as against the wife’s in the order of 55:45.

Section 79(4) contributions post separation

The wife asserted that the husband engaged in conduct which has affected a pre-distribution of property that otherwise would have been available for adjustment between the parties and which should be notionally added back into the pool of property and then allocated to the husband as part of his distribution.
The husband opposed the course proposed and says that he has already included in the balance sheet some of the assets to which the capital has been applied in part and in any event what he did post separation was to apply both income and capital to his reasonable living expenses including child support and the establishment of a new business.
I have decided not to accept the invitation to add back assets save for paid legal costs because of the lack of evidence which I would regard as satisfactory as to the quantum and as to the application of the assets.
It is my view that the adding back of notional assets is only a method, among other methods, of formulating a result which, to me seems, in the exercise of my discretion, just and equitable. I have on the authorities a clear discretion not to follow that suggestion.
However I do note that I take into account in two ways the utilisation of those assets namely, that they represent a contribution by the wife to the development of a potentially very significant earning capacity of the husband and to the extent that they have been applied to liabilities which clearly the law cast on him for child support they represent a post separation contribution by the wife to the children of the marriage.
To the extent that the monies utilised by the husband resulted from entitlements acquired during the marriage in part and realised post separation, they are the product of an indirect contribution of the wife and in their application constitute a contribution to the income, property and financial resources of the husband albeit that they may have been used for reasonable purposes.
I note that the wife’s major contribution to the care and welfare of the children of the marriage continued also post separation and whilst the husband overall made a contribution which was significant it was not as significant as that of the wife.
I assess that but for that contribution the husband would not have been free to pursue his employment and acquire and improve his earning capacity, conduct his research and make his business plans.

Conclusion based on contribution

All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage of either of them including such property which is no longer the property of the parties to the marriage or either of them to be equal to the date of their separation.

Section 75(2) considerations

The wife is aged 49 and the husband 48. The husband is in good health. The wife suffers from pain in her back.
The husband had during the marriage a capacity to earn in the vicinity of $200,000 per annum. The wife’s income historically was less than that of the husband for the major period of the marriage.
The husband, although presently unemployed, has spent part of the time during the period post separation conducting market research into the services which, through his company structure, he proposes to supply as part of his future business. He gave evidence of his business plan and documents suggest that he has assessed his likely income from the business to be many times what he has previously earned albeit that it will take a period to time to get to that result.
Although it was contended by the wife that the husband’s actions in challenging his child support obligations make it more, rather than less, likely that he will in the future avoid his obligations, I do not accept that his proper use of the various means of review of child support obligations was improper in any sense or constitutes sufficient evidence on which I can come to the conclusion proffered.
Although the care of the children for the future will be shared the wife will nevertheless on be on the margin a greater contributor to their care and if the husband’s income projections do not immediately realise then she will have the major financial responsibility for their care.
Neither party has a responsibility to support another person other than the other party and the children of the marriage.
Neither party seeks a superannuation splitting order and their entitlements as to superannuation are included in the pool of assets for division.
The standard of living that in all the circumstances is reasonable. In this matter the husband does not appear to have suffered a drop in standard of living since he has had available to him his substantial post separation income monies derived from the realisation of assets and the payment of redundancy payments. He has been able from his own resources and the capital under his control to enjoy holidays and purchase a motor vehicle for his partner. He has been able to spend time, notwithstanding a lack of income, in the development of a higher earning capacity. The husband is positive in his assertions as to the commercial viability of his programme and the likely levels of his future income.
During the marriage the wife would have been able to a greater degree further pursue the gaining of experience and the development of her earning capacity were it not for her primary role during the marriage of care giver to the children.
In the utilisation of the capital in the support of the establishment of the business and the necessary research and planning, the wife has made an indirect contribution in addition to her contribution to his income and property, a contribution to the husband’s financial resources comprising his earning capacity. She has also, by her continued care of the children and bearing a financial responsibility which would not have been hers had the husband continued in employment, made a significant contribution to the development of that earning capacity by freeing up capital for the purpose of supporting the husband during the period in which he was doing his research and undertaking his planning. All the fruits of those contributions and that planning will be the husband’s. By making them, the wife has to some extent been deprived of assets which otherwise might have been available for distribution to her and the justice of this case requires that they be taken into account. The husband for his part points to her continued occupation of the home post separation but that was a position in which the husband acquiesced and, of course, the wife had a need to provide a primary residence for the children.
The husband has a new partner who has a significant earning capacity. She is well able to contribute to the costs of his household and there is no evidence that she is likely to be a burden financially upon him.
I have already referred to those matters which the justice of this case requires me to take into account. In particular, the opportunity provided to the husband to increase his income as a result of contributions by the wife, both directly from assets acquired during the marriage and from income earning capacity developed with her support, requires an adjustment to produce a just result.

Conclusion on section 75(2)

For all the reasons referred to above and in the circumstances where the wife is, has been and will continue to be so far as can be predicted, the financially weaker party, I believe a significant adjustment should be made in her favour. The differential in earning capacity on past demonstrated capacity of the husband to earn would be something in the order of a $100,000 per annum. The husband’s predictions would make the amount which represents the differential up to three times that amount. I believe that overall an adjustment of 15% in favour of the wife is appropriate to provide a just result.

Overall division of assets

The above determination will see the mother receive 65% of the parties’ assets and the father receive 35%.

Just and equitable

The division of assets would see the mother receive $732,677.40 worth of nett assets and the father receive $394,518.77 worth of assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	($)
· K property	800,000
· 2005 Toyota Avensis	28,500
· ING Bank Account	313
· CBA Bank Account	2,400
· Household contents in wife’s possession	11,332
· Jewellery	2,740
· Paid Legal Fees	46,671
· Superannuation	57,436
Total Assets (including superannuation)	$949,392

Liabilities
· CBA Mortgage liability over K property	97,038
· CBA Mastercard	2,800
· CBA Personal Loan	23,000
· CH – Personal Loan	5,000
· NS – Personal Loan	5,000
· Amount payable to the husband	83,877
Total Liabilities	$216,715
Net Assets (including superannuation)	$732,677

The husband will receive:

Assets	($)
· Paid Legal Fees	70,621
· Credit on account of legal fees held by Mr Karras, his solicitor	16,763
· CBA Bank Account	7,128
· Swiss Bank account	1,343
· ING Bank	10,956
· Renault Scenic	10,000
· 1998 Ducati 900ss	9,000
· Suzuki Swift	2,200
· Household contents in husband’s possession	10,455
· Superannuation	178,749
· Amount payable by the wife	83,877
Total Assets (including superannuation)	$401,092
Liabilities
· Capital Gains Tax on sale of shares	4,228
· CBA Visa Card	2,345
Total Liabilities	$6,573
Net Assets (including superannuation)	$394,519

The Wife’s Claim for Maintenance

The wife has brought a claim for continuing spousal maintenance but a consideration of her financial position at the present time does not, in my view, demonstrate that she has crossed the threshold of those matters required to be established for such a claim to be successful. In particular, she has not demonstrated a need in the circumstances required by the section, which she is unable to satisfy, from her income, property and financial resources. In the circumstances I propose to dismiss her application and will order accordingly.

Costs

Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.

I certify that the preceding one-hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 2 September 2008

[2008] FamCA 804

2 September 2008

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