Selkin & Artliff-Selkin

FAMILY COURT OF AUSTRALIA

SELKIN & ARTLIFF-SELKIN

[2013] FamCAFC 19

FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made orders allowing the wife to relocate the children’s residence from S to C and providing for the children to spend time with the husband as agreed, or failing agreement, each alternate weekend and at specified times during the school holidays and on special days – where the Federal Magistrate in her reasons for judgment described the orders she proposed as affording the children “substantial and significant time” with their father – where the orders made did not fit within the definition of “substantial and significant time” in s 65DAA(3) of the Family Law Act 1975 (Cth) – where the Full Court was satisfied the Federal Magistrate correctly followed the legislative pathway and made the orders that she intended to make but she mis-described them as “substantial and significant time” – where there is no appealable error – where the Full Court also found the Federal Magistrate did not elevate the interests of the wife to be equal or more important than the children’s interests when allowing the relocation, that her Honour carefully and thoroughly assessed each party’s proposal in the context of the s 60CC factors, and that her Honour correctly found the children could relocate and still maintain a meaningful relationship with their father – no merit found in these grounds of appeal.

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – where the Federal Magistrate made orders for the parties to have equal shared parental responsibility, except in relation to the children’s health for which the wife had sole parental responsibility – where the Federal Magistrate erred in stating that the s 61DA(1) presumption was “rebutted because of family violence”, rather than not “enlivened” – whilst the Federal Magistrate erred in making no finding of family violence, the Full Court found her Honour’s intention was still clear, namely that the presumption was rebutted in the area of the children’s health by the evidence that the husband failed to respond in a timely fashion to the children’s need for dental treatment – no appealable error found in this ground of appeal.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – where the husband’s solicitor argued on appeal that the parties’ initial contributions favoured the husband six to one and could not have equalised over the ten year relationship, and that real property the parties still possessed at the time of trial could be sourced to the husband’s initial contributions – where it was clear from the Federal Magistrate’s reasons that her Honour was aware of these issues and had regard to the husband’s contributions – where the Full Court was not persuaded the Federal Magistrate exceeded the “generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong” – no merit found in this ground of appeal.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the husband consented to the wife paying her legal fees of $21,200 from a line of credit and the Federal Magistrate proposed the wife reimburse the husband from the proceeds of sale of the former matrimonial home – where the Federal Magistrate omitted to include this in the orders she made for property settlement – appeal allowed in relation to this issue and the discretion re-exercised to vary the Federal Magistrate’s orders such that the wife is obliged to pay the husband the sum of $21,200.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
McCall & Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
Norbis v Norbis (1986) 161 CLR 513
Pottinger & Bainton [2009] FamCA 124
Taylor & Barker (2007) FLC 93-345

APPELLANT:

Mr Selkin

RESPONDENT:

Ms Artliff-Selkin

FILE NUMBER:

BRC

5435

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

25 February 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Faulks DCJ & Strickland J

HEARING DATE:

7 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 September 2011

LOWER COURT MNC:

[2011] FMCAfam 866

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPELLANT:

Mr Cooper

SOLICITOR FOR THE APPELLANT:

Cooper Family Law

FOR THE RESPONDENT:

In person

Orders

The appeal be allowed in part.
The orders as to property settlement made by Federal Magistrate Purdon-Sully on 7 September 2011 be varied to include the following further order:
24A.That the wife pay to the husband the sum of $21,200 by way of reimbursement of the money withdrawn by the wife from the Westpac Line of Credit to pay legal fees.
The appeal be otherwise dismissed.
The application in an appeal filed on 25 July 2012 by the husband be dismissed.
The husband pay the wife’s costs of and incidental to the appeal as agreed, and in default of agreement as assessed on a party/party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 74 of 2011
File Number: BRC 5435 of 2010

Mr Selkin

Appellant

And

Ms Artliff-Selkin

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 11 January 2012 Mr Selkin (“the husband”) appeals against parenting and property orders made by Purdon-Sully FM on 7 September 2011. The respondent in the appeal is Ms Artliff-Selkin (“the wife”). The parenting proceedings relate to the parties’ three children,

L Selkin, I Selkin and F Selkin (“the children”).
The parenting orders appealed against provided for the children to live with the wife and for the wife to relocate the children’s residence from S to C, a distance of 78 kilometres. The parties were to have equal shared parental responsibility for major long term issues including education, religious and cultural upbringing, names and living arrangements, whilst the wife was to have sole parental responsibility for major long term issues in relation to the children’s health. The children were to spend time with the husband as agreed, or failing agreement, each alternate weekend, at specified times during the school holidays and on special days, and there was to be telephone communication twice per week.
In relation to property settlement, the orders provided for the wife to retain her superannuation and motor vehicle and for the husband to retain his motor vehicle, share portfolio and real property at T. The orders also provided that the wife be appointed trustee for the sale of the former matrimonial home in S, with the net proceeds to be divided to effect an overall settlement of 62.5

per cent/37.5 per cent in favour of the wife.
On appeal the husband seeks orders that the matter be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Purdon-Sully FM.
Although she was legally represented at trial, the wife appeared before us without representation.

Background

The parties commenced cohabitation in about March 2000 and married in February 2003.
The parties’ three children, L, I, and F, were respectively born in November 2003, August 2005 and August 2008.
The parties physically separated in February 2010 when the wife left the former matrimonial home (“the S property”) with the children and obtained rental accommodation. The husband remained living in the S property.
Consent orders were made on 19 July 2010 providing for the children to live with the wife and spend a total of five nights each fortnight with the husband.
At the time of trial the husband was 44 years of age and in full-time employment as a professional, and the wife was 42 years of age and a full-time parent receiving a government benefit. The husband was residing at the S property and the wife was living in rented accommodation nearby. It was accepted the S property would be sold and at the time of trial it had been on the market for over 12 months. The wife had also formed a relationship with Mr N who lives in a town north of Brisbane, although it was not a live-in relationship.

Reasons for judgment of the Federal Magistrate

The Federal Magistrate commenced her reasons for judgment by outlining the competing proposals of the parties, detailing their background, and outlining the evidence relied upon by each party.
The wife sought orders that the children relocate with her from S to C and attend X College, that the children spend time with the husband on alternate weekends, and that the parties have equal shared parental responsibility for the children, save that she have sole parental responsibility if the parties were unable to agree on the children’s health issues. The husband sought orders that the children reside within 30 kilometres of their school, Y College near S, and continue to attend that school. The husband also sought orders for equal shared parental responsibility for long term decision making and for the parties to have care of the children on an “equal-time week-about regime” or, in the event the wife relocated, that the children live primarily with the husband and spend time with the wife on alternate weekends.
In relation to property settlement the wife sought a 70 per cent/30 per cent division of the net pool of assets valued at $978,210 in her favour and spousal maintenance in the weekly sum of $300 for a period of two years. The husband sought a 65 per cent/35 per cent division of the net pool of assets valued at $988,058 in his favour and opposed the wife’s application for spousal maintenance.
As to credit, the Federal Magistrate found the parties presented as “intelligent and articulate” but had a “volatile, toxic relationship”. In particular,

her Honour noted the husband had not made “reasonable post-separation adjustments”, which impacted negatively on the children. Overall her Honour found the husband was an “unsatisfactory witness” due to the discrepancies in his evidence and his lack of frankness, particularly in relation to his work situation and his knowledge as to the whereabouts of certain sums of money. In contrast, the Federal Magistrate found the wife to be an “overall truthful witness” who was clear in her evidence and prepared to make concessions. Ultimately, her Honour determined it was “dangerous to accept the husband’s evidence unless unchallenged, corroborated or otherwise presented as inherently believable or probable”.

Parenting

After setting out the relevant legal principles, the Federal Magistrate first turned to consider the additional considerations in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”). Her Honour’s findings can be summarised as follows:
·The Federal Magistrate did not place any weight on the children’s views because of their young ages, the level of conflict they had been exposed to, the husband’s involvement of the children in the parental dispute, and the children’s enmeshment with the husband’s negative view of the wife and her new partner, Mr N.
·Her Honour found the children had a strong attachment to both parents but placed significant weight on the “historical care structure of the children”, which supported a continuation of the wife as primary carer. On the evidence the Federal Magistrate was unable to conclude a change in the children’s residence to C would negatively impact upon their relationship with their father. Despite the family reports and his attendance at counselling, the Federal Magistrate found the husband continued to demonstrate poor insight into the effect of his behaviour on the children. Her Honour considered the husband’s concerns and extensive investigations of Mr N, but was unable to conclude the children were at risk in Mr N’s care.
·The Federal Magistrate was unable to find any evidence to support the husband’s assertions that the wife lacked the capacity to meet the children’s physical and emotional needs, nor that her own emotional health was compromised such that she posed a risk to the children. Whilst her Honour acknowledged the wife’s introduction of a new partner at the time of the relationship breakdown evidenced some lack of insight, the Federal Magistrate was unable to conclude it evidenced such a lack of parental insight that it significantly impacted on the above conclusions. In contrast, the Federal Magistrate found the husband had failed to protect the children from the conflict and his views about the wife and Mr N, that he had delayed in attending to the children’s required dental treatment, and that he had disseminated personal information about the wife to a range of third parties following separation.Her Honour also found the husband demonstrated poor parental decision making, such as his supplementation of nannies for the care of the children when the wife was available to care for them and his retention of the children in June 2010 after the wife had an appendicitis attack.
·The Federal Magistrate found the wife’s proposal required a lesser degree of change as the children would remain in the primary care of the wife. Her Honour was also unable to conclude there were any ongoing risks to the children by the burden of travel between C and S or by a change of school at an early primary school level. In contrast, the Federal Magistrate found the husband’s proposal required greater adjustment for the children because the husband had no history of their primary care and would be more reliant on third party carers.
·Her Honour found the geographical distance created by the wife’s proposal presented some practical difficulties, but that they were “not insurmountable or significant” because the travelling time was not significant if the children were to spend alternate weekends with the husband.
·The Federal Magistrate found no evidence to suggest either school would not afford the children an appropriate education or enable them to continue their extra-curricular pursuits. Her Honour also found no evidence that C would not afford the children a lifestyle similar to that which they enjoyed at S.
·
Whilst the children had been exposed to considerable conflict, on the evidence the Federal Magistrate was unable to conclude the wife and

Mr N “engaged in acts of intimidation or a vendetta against the husband”. There were no protection orders in place. Her Honour also noted the wife had engaged in domestic violence counselling and that there was an order in place for the parties to attend a post orders parenting program.
·The Federal Magistrate determined the wife’s proposal was least likely to lead to further conflict. Her Honour acknowledged the importance of the wife being able to make a “fresh start” given the embarrassment the husband had caused her in his contact with various third parties, although her Honour considered relocation was “unlikely to fix the underlying problem between the parents”.
·Lastly, the Federal Magistrate accepted the husband’s evidence that, in the event the wife and children relocated to C, he wished to remain in the area around S.
The Federal Magistrate then turned to consider the primary considerations in

s 60CC(2) of the Act. On the basis of the above findings her Honour determined the wife’s proposal was more likely to afford the children the opportunity to benefit from having a meaningful relationship with both parents, and was the proposal that presented the least risk to the children because of the wife’s greater insight and parental capacity. In contrast, the Federal Magistrate determined the husband’s proposal presented a greater unacceptable risk because of the husband’s lack of insight and the children’s enmeshment in the husband’s negative views about their mother.
In relation to s 60CC(4) and (4A) of the Act, the Federal Magistrate relied upon her earlier findings and noted that, whilst the wife complained of late payment of child support, the evidence was that the husband had historically met his child support obligations.
It was counsel for the husband’s submission that the presumption of equal shared parental responsibility should be applied, however, the Federal Magistrate found it to be rebutted on the basis of family violence. Given the past issues in relation to the children’s dental care, the Federal Magistrate determined to make an order for the wife to have sole parental responsibility with respect to the children’s healthcare, but otherwise concluded the children’s best interests would be served by both parents engaging equally on long-term decisions. In addition, the Federal Magistrate considered an order along the lines of that made by Rose J in Pottinger & Bainton [2009] FamCA 124, namely one which required the mother to give written notice to the father prior to making decisions and to take into consideration the father’s views, would “provide the parents with an opportunity to communicate about health and dental issues in an environment that reduces the potential for conflict and yet provides a mechanism for the making of a decision where there is no agreement”. His Honour was satisfied the wife would comply with such an order.
Turning to the issue of equal or substantial and significant time, the Federal Magistrate noted she had made an order for “equal shared parental responsibility, albeit in hybrid form”. It was counsel for the husband’s submission that equal time would only be “an adjustment of two further days per fortnight”, but the Federal Magistrate determined such a regime would not be in the children’s bests interests nor reasonably practicable. Ultimately, the Federal Magistrate found the wife’s proposal would afford the children substantial and significant time with their father, and that in the circumstances such an arrangement would be in the children’s best interests and reasonably practicable.

Property

After outlining the relevant legal principles, the Federal Magistrate proposed to include the parties’ superannuation entitlements in the property pool and adopt the “global” approach when evaluating the parties’ respective contributions.
The issues as to the property pool were whether there should be an add-back of money withdrawn by the wife, and whether their respective bank balances should be included in the pool. It was counsel for the husband’s submission that a draw-down by the wife of $22,281 from her superannuation (allegedly for dental treatment) should be added-back. However, on the evidence

her Honour determined the husband had failed to discharge the onus upon him to prove it was a case where justice and equity required the draw-down to be included in the pool. The Federal Magistrate though did accept counsel for the husband’s submission that, in the event the $22,281 was not added-back, the $3,000 remaining in the wife’s bank account from that sum should be added-back and the husband’s bank balance of $4,996 (which reflected his income and day to day expenditure) should be ignored.
Ultimately, the Federal Magistrate found the parties’ property pool had a net value of $967,806.
Turning to initial contributions, the Federal Magistrate noted that at the commencement of cohabitation the husband was earning an income in excess of $100,000 and that he had net assets worth about $360,000, including four real properties with a total gross value of $489,000, superannuation of $80,000, cash savings of $25,000 to $30,000, shares, and liabilities of $209,627. The wife was also in full-time employment with an annual income of about $65,000 and had net assets worth no less than $59,000, including two real properties with a total gross value of $137,000, company shares valued at $25,000, superannuation, and liabilities of about $103,000. At the commencement of cohabitation the parties lived in rented accommodation in Sydney.

The Federal Magistrate’s findings in relation to the parties’ employment during the relationship can be summarised as follows:
·The husband lost his job in 2001 and received a redundancy payment of about $30,000.
·During the husband’s subsequent two year period of unemployment and further training, the Federal Magistrate found it was the wife’s employment that assisted the husband in securing extended lines of credit. Her Honour also found the wife’s full-time income during that time, along with rental income from the parties’ properties, was applied for the benefit of the family.
·In November 2003 the wife ceased work before the birth of the parties’ first child and thereafter was a full-time homemaker and parent.
·Between 2004 and 2009 the husband was training and/or working both interstate and overseas, with the wife assuming sole parenting responsibilities.
·Between April and November 2006 the family moved to Malta and the United Kingdom to enable the husband to take up a contract, before relocating to Brisbane.
·In between the husband’s overseas contracts he undertook other work in Australia and property renovation. It was the husband’s evidence that if the wife had not been supportive he would not have taken up the work opportunities overseas.
·In September/October 2009 the husband secured employment with his current employer.
The parties’ property dealings during the relationship can be summarised as follows:
·In January 2001 the parties jointly purchased a property in Sydney for $427,000, with the husband contributing $35,000, the wife contributing $25,000, and the parties jointly taking out a bank loan of $385,000.
·The wife’s B property (which was previously tenanted for about $150 per week) was sold in September 2002 and the sale proceeds were used to pay out the mortgage on the wife’s M property. The M property continued to be tenanted at $100 to $120 per week until it was sold in June 2008.
·The husband’s properties were rented and were producing income.
·Between March 2006 and May 2007 the husband sold his three properties in S. It was the husband’s evidence that he applied the proceeds of $700,000 to paying off debt.
·In 2006 the husband purchased a property in his sole name in D for $130,000 by extending his line of credit.
·In February 2007 the former matrimonial home at S was purchased for $360,000 using a bridging loan, joint savings from income, and sale proceeds from other properties.
·In 2007 the husband received an inheritance of about $132,000, which was absorbed into the parties’ joint funds.
·In November 2007 the Sydney home was sold for $725,000 and the sale proceeds applied to pay off all the parties’ debts.
·In 2008 the wife sold her M property. The Federal Magistrate accepted the wife’s evidence that after a $10,000 church donation, the sale proceeds went towards the husband establishing two options trading accounts and funding home renovations.
·In August 2009 the husband’s D property was sold for $225,000. It was the husband’s evidence that the net proceeds of $107,000 were applied to renovations of the family home, that $60,000 was deposited into the wife’s account, and $80,000 was placed in the husband’s options trading accounts. However, the Federal Magistrate found the husband’s evidence at trial “posed more questions than it answered”. For example, the husband gave evidence that he had deposited $75,000 (rather than $60,000) into the wife’s account, that he withdrew $200,000 from his bank account in September 2009, that there was nothing left of the $80,000 deposited into his options trading accounts, and that he could not account for a further withdrawal of no less than $50,000 or who drew a cheque for $27,000 from his account. However, no submissions were made as to how the losses should be treated, rather the wife complained of the husband’s lack of full and frank disclosure.
·The husband’s T property continued to be tenanted throughout the relationship and at the time of trial was being rented for $166 per week and had doubled in value.
The Federal Magistrate noted renovations were carried out on a number of the parties’ properties and that some of the work was done by the husband himself. Of significance, the husband had commenced a “surprise” renovation of the S property, which was not completed by the time he left for overseas, and the wife subsequently withdrew money to pay tradesman to work on the house.
The Federal Magistrate also determined that, whilst the parties employed a cleaner at various times and the husband engaged in some housekeeping endeavours, those things did not detract from the wife’s primary homemaking and parenting role.
As to post-separation contributions, the Federal Magistrate noted the husband continued in employment and had the use of the former matrimonial home, whilst the wife received a government benefit supplemented by capital payments and some spousal maintenance, and lived in rented accommodation. Her Honour found the husband also had access to the options trading accounts and the rent from the T property, and that both parties had access to some “matrimonial” funds. On the evidence the Federal Magistrate rejected the husband’s submission that he had “more than met his obligations” following separation, particularly as he had cut off the wife’s access to joint funds and ceased paying spousal maintenance. Her Honour also took into account the disparity in the parties’ living and financial circumstances, including the wife’s unchallenged evidence that she had relied on food parcels to feed the children. As to legal fees, it was the husband’s evidence that he had spent $180,000, which the Federal Magistrate found was over 20 per cent of the value of the net pool, and over three times what the wife expended.
It was the husband’s submission that the parties’ contributions-based entitlements should be assessed as 75 per cent/25 per cent in his favour, whilst the wife sought an equal division. Ultimately, the Federal Magistrate determined to assess the contributions at 52.5 per cent/47.5 per cent in favour of the husband, primarily on the basis of the husband’s greater initial contributions and his direct financial contributions in the form of his redundancy and the inheritance he received late in the relationship.
Turning to the factors arising under s 75(2) of the Act, the Federal Magistrate noted the wife had the capacity for full-time employment but that her ability was circumscribed by her care of the children and her time out of the workforce. Her Honour accepted the wife’s evidence that it would no longer be suitable for her to work in the industry in which she was previously employed because of the impact it would have on her care of the children. Her Honour also accepted the wife would need to undergo a period of re-training to be able to use her teaching qualifications, and even then she would be unlikely to secure work in the education field because of the current oversupply of teachers. The wife’s weekly income from government benefits and child support was approximately $785 and the weekly expenses for her and the children were $1,125. The Federal Magistrate found the husband had the capacity to continue in his full-time employment and that his total weekly income was about $2,352. It was the husband’s evidence that his average weekly expenses (excluding fixed expenses) were $2,579.
It was the husband’s contention that the s 75(2) factors favoured the wife on the basis of earning disparity, which he put at 10 per cent. Ultimately, the Federal Magistrate determined an adjustment of 15 per cent should be made in favour of the wife because of the earning disparity and the wife’s primary care of the children.
The Federal Magistrate was satisfied the orders were just and equitable as the wife would receive $527,159 in non-superannuation assets and $77,719 in superannuation, and the husband would receive $227,928 in non-superannuation assets and $135,000 in superannuation. Her Honour noted both parties would retain a motor vehicle and that the money would enable the wife to purchase an unencumbered home for her and the children, meet any establishment costs, and pay the $36,000 debt she owed to her friends.

Her Honour noted the husband had a good income, would retain the T property, and had a number of financial options to extinguish his debt and purchase another home.
Lastly, in relation to spousal maintenance, the Federal Magistrate found the wife was unable to support herself adequately and that she would require a period of time to re-train and re-enter the workforce. Given the age of the children and the wife’s evidence in relation to re-training, her Honour considered a period of two years was reasonable to enable the wife to re-train. Disregarding the wife’s government assistance, the Federal Magistrate found the wife had a need of not less than $300 per week. In relation to the husband’s expenses, the Federal Magistrate “pruned” the husband’s nanny expenses by half and disallowed the expenses of $140 per week for gardening, house cleaning and boat and trailer registration, creating a saving of $290 per week and reducing the husband’s weekly expenses to $2,289. This left the husband with a weekly income surplus of $63 and the Federal Magistrate therefore ordered the husband to pay the wife spousal maintenance in the amount of $60 per week until the settlement of the sale of the S property.

Orders made 9 September 2011

Purdon-Sully FM made the following orders in so far as they are relevant:
Children
1. That the children [L SELKIN] born … November 2003, [I SELKIN] born … August 2005 and [F SELKIN] born … August 2008 live with the Mother.
Relocation
2.That the Mother shall be permitted to relocate the children’s residence to [the C region].
3.That the Mother is at liberty to enrol the children at [X College].
Parental responsibility
4. That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children including decisions regarding the children [sic]:
(a) education, both current and future;
(b) religious and cultural upbringing;
(c) names;
(d)living arrangements, in terms of any changes thereto that would make it significantly more difficult for the children to spend time with the other party.
5. That the Mother have sole parental responsibility for the children with respect to the major long term issues of the children with respect to health issues (inclusive of dental issues) and in the exercise in that responsibility the Mother shall:
(a) notify the Father in writing prior to making such decisions;
(b) invite the Father to indicate his views in writing;
(c) take the Father’s views into account in making such decisions; and
(d) inform the Father in writing of her decisions.
6.       That notwithstanding the provisions of the above paragraphs hereof:
(a) the Father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
(b) the Mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.
…
Time with the Father
11. That the children spend time and communicate with the Father at all times as may be agreed between the parties and failing agreement as follows:
(a) each alternate weekend from after school/day-care Friday until 5.00pm Sunday or before school Monday if the Father is able to deliver the children to school;
(b) on Father’s Day, from 4.00pm the day before Father’s Day until 4.00pm on Father’s Day;
(c)on the Father’s birthday as agreed;
(d)on the children’s birthdays as agreed;
(e)by telephone each Tuesday and Thursday from 6.00pm until 6.30pm with the Father to telephone;
(f)the children be at liberty to call their Father by telephone at any time.
School holidays
(g)Easter Queensland gazetted school holidays in 2012 from 5.00pm on the first day of the Easter school holidays until 5.00pm on the last day of the Easter school holidays (not including the Easter special days) and each alternate year thereafter;
(h)June/July Queensland gazetted school holidays:
(i)in 2012 and each alternate year thereafter for the second week of the holiday period from 5.00pm on the Saturday which falls in the middle of the holiday period until 5.00pm on Saturday which falls at the end of the holiday period;
(ii) in 2013 for the first week to commence at 5.00pm on the last day of the school term until 5.00pm on the Saturday which falls in the middle of the holiday period and each alternate year thereafter;
(i)     September/October Queensland gazetted school holidays:
(i)in 2011 for five (5) nights (six (6) days) to fall during the first week of the holiday period from 5.00pm on the first day until 5.00pm on the sixth day;
(ii)in 2012 for the second week of the holiday period from 5.00pm on the Saturday which falls in the middle of the holiday period until 5.00pm on the last Saturday of the holiday period and each alternate year thereafter;
(iii)in 2013 for the first week of the holiday period to take place from 5.00pm on the last day of the school term until 5.00pm on the Saturday which falls in the middle of the holiday period;
(j)Christmas Queensland gazetted school holidays:
(i)in 2011 for the first week of the holiday period from 5.00pm on the last day of the school term until 5.00pm on the Saturday that falls at the end of the first week of the holidays and for one (1) week in the fifth week of the holidays;
(ii)in 2012 for the second half of the holiday period from 5.00pm on the Saturday which falls in the middle of the holiday period until 5.00pm on the last Saturday of the holiday period and each alternate year thereafter;
(iii)in 2013 for the first week of the holiday period to take place from 5.00pm on the last day of the school term until 5.00pm on the Saturday which falls in the middle of the holiday period.
Changeovers
12.That for the purpose of changeovers, unless the children are collected to and from school as provided in this Order, all other changeovers shall take place at the [B] McDonald’s Restaurant unless otherwise agreed.
…
Property
18. That the Wife retain and the Husband relinquish any interest in the following:
(a)     the Wife’s MLC Superannuation Fund;
(b)     the Wife’s Trace Superannuation Fund;
(c)     the Wife’s Q-Super Superannuation Fund;
(d)     the Wife’s … motor vehicle.
19. That the Wife shall be solely responsible for and indemnify the Husband in relation to the following debts:
(a)     the Wife’s Australian Taxation Office debt;
(b)     the Wife’s personal debt to … [Mr B];
(c)     the Wife’s personal debt to [Mr A];
(d)     the Wife’s personal debt to [Mr R];
(e)     any credit card in the Wife’s name.
20.That the Wife shall retain and the Husband shall relinquish any interest in any funds standing to her credit in the Trust Account of [her former family lawyers].
21.That the Husband shall retain and the Wife shall relinquish any interest in the following:
(a)     the Husband’s … motor vehicle;
(b)     the Husband’s share portfolio;
(c)the real property located at [S Street, T] which is registered in the Husband’s sole name.
22. That the Husband shall be solely responsible for and shall indemnify the Wife and keep the Wife indemnified in relation to any debts in the Husband’s name including but not limited to:
(a) the Husband’s Australian Taxation Office debt;
(b)the Husband’s personal loan to [Mr S];
(c)the Husband’s personal loan to [Ms P];
(d)the Husband’s debt to Westpac Bank taken out as a line of credit encumbering the property at [S Street, T].
23.That the Husband shall retain and the Wife shall relinquish any interest in any funds standing to his credit in the Trust Account of [his former lawyers].
24.That the Wife be appointed Trustee for the sale of the property situated at [A Street, S] and that on sale, an accounting be undertaken such that the net proceeds be divided between the parties to effect an overall settlement in favour of the Wife of 62.5% of the net pool as assessed taking into account the property to be retained by the Wife pursuant to these orders with the balance of net proceeds of such sale to be paid to the Husband.
…
The husband appeals against Orders 1 to 5, 11, 12 and 18 to 24.

Application to adduce further evidence

On 25 July 2012 the husband filed an application in an appeal seeking leave to adduce further evidence, and a supporting affidavit.
However, at the commencement of the hearing before us the husband’s solicitor indicated that the application was no longer pressed.
Thus, we propose to make an order dismissing the application.

Grounds of appeal and orders sought

The grounds of appeal as contained in the Amended Notice of Appeal filed by the husband on 11 January 2012 are as follows:
Parenting
1.That the Learned Federal Magistrate elevated the interests of the Respondent Mother to make a fresh start with a new partner and to remove herself geographically from the Appellant Father as equal to, or more important, than the interests of the children and, in doing so, failed to comply with section 65CA [sic] of the Family Law Act 1975.
2.That the Learned Federal Magistrate found that the orders ultimately made by her Honour constitute the children spending substantial and significant time with the Appellant Father in circumstances where the orders ultimately made do not fall within the definition of substantial and significant time as defined in section 65DAA(3) of the Family Law Act 1975 and, in doing so, fell into error.
3.That the Learned Federal Magistrate found that the presumption of equal shared parental responsibility was rebutted as a consequence of family violence where:
a.The presumption of equal shared parental responsibility is not rebutted by such a finding; rather, the presumption is not enlivened; and
b.The Learned Federal Magistrate made no finding, nor could there be any finding on the evidence, that there was family violence within the meaning of section 4 of the Family Law Act 1975
and, in doing so, fell into error in the making of a parental responsibility order.
4.That the Learned Federal Magistrate failed to properly consider the Father’s proposal within the context of section 65DAA of the Family Law Act 1975 by failing to consider the Respondent Mother’s position should orders be made in line with the Appellant Father’s proposal and, in doing so, failed to comply with section 65DAA of the Family Law Act 1975.
5.The Learned Federal Magistrate failed to give any, or any sufficient weight to the views of the children with respect to:
a.The children missing a parent when in the care of the other parent; and
b.The child [L’s] love for her school and her cohort of friends.
6.The Learned Federal Magistrate failed to give adequate reasons for finding that orders in line with the Respondent Mother’s proposal would afford the children the opportunity to maintain a meaningful relationship with the Appellant Father in circumstances where it was found that:
a.The children would benefit from a meaningful relationship with the Appellant father; and
b.The toxicity of the co-parenting relationship was unlikely to change by the making of any order.
Property
7. That the learned Federal Magistrate erred in the exercise of her Honour’s discretion in assessing the parties’ respective contributions at 52.5% to the Appellant and 47.5% to the Respondent on the basis that this undervalues the Appellant’s contributions as found by the learned Federal Magistrate.
8.The learned Federal Magistrate erred in placing an onus on the Appellant to prove that the $22,281 withdrawn by the Respondent should be included as a notional adjustment to the property pool of the parties on the basis that:
a. The Appellant is not required to discharge any such onus; and
b. If there is any evidentiary onus upon the parties:
i. There is an onus upon the Appellant to establish that a premature distribution of funds had occurred, which was discharged; and
ii.There is an onus on the Respondent to establish that such premature distribution ought not be added to the property pool of the parties, which was not discharged;
and, by doing so, the learned Federal Magistrate erred in not including $22,281 as a notional adjustment to the property pool of the parties.
9.The learned Federal Magistrate erred in making orders which did not account for her Honour’s finding that there should be an adjustment to the Appellant of $21,200 for legal fees paid by the Respondent from the parties’ line of credit.

In his written submissions the husband’s solicitor indicated that Grounds 5 and 8 were not pursued. Further, he grouped Grounds 1, 4 and 6 together, and addressed them collectively. We propose to do the same.

Discussion

Parenting

The husband’s solicitor commenced his oral submissions by indicating that the “gravamen” of the appeal is whether the parenting orders constitute substantial and significant time within s 65DAA(3) of the Act (Ground 2). He submitted that if they do not, and that is the husband’s case, then other errors flow from that as identified in Grounds 1, 4 and 6.
It is clear in our view that the orders made by her Honour were those she intended to make. They follow logically from her reasons and from the legislative pathway she correctly applied. It is clear that she considered those orders to be in the best interests of the children. It is equally clear, in our view, that they do not fit within the definition of “substantial and significant time”, although her Honour described them as such. Does this vitiate the decision as the appellant contends? We do not consider it does. In our view it is clear what orders her Honour intended to make and that she mis-described them as “substantial and significant time”. There is in our view no support from the judgment for the husband’s contention that her Honour intended to make orders (not articulated) fitting within the definition of “substantial and significant time” but instead made different orders. Hence we do not find that her Honour fell into appealable error.
The fallacy in the husband’s argument in this regard is demonstrated by the fact that there is now no issue that the children should live with the wife, and during the hearing the husband’s solicitor conceded, on the basis of the wife’s proposal to relocate as the residential parent, that it was not reasonably practicable for the children to spend substantial and significant time with the husband within the definition of that time in s 65DAA(3). There just could not be a day or days that did not fall on a weekend or holidays. Further, the husband was not proposing that there be such an order.
We also observe that although it was open to the husband to propose that there be a continuation of the consent interim arrangements, he did not do so, and his solicitor conceded that that too would not be reasonably practicable in the circumstances.
What the husband wanted was equal time on a week and week about basis, or if the wife relocated then the children should live primarily with him and see the wife on alternate weekends.
The evidence of the family report writer, was that it was not in the best interests of the children for there to be equal time or for them to live primarily with the husband, but there should be “substantial” time spent with him. The family report writer was unable to suggest specific time because of the husband’s work roster, but he said that the interim arrangements were “broadly in line with the needs of the children and their current development” (Family Report, 22 September 2010, paragraph 93).
However, because on both parties’ proposals there would be a change for the children, her Honour therefore needed to look beyond maintaining the current arrangement (see paragraph 85 et seq of her Honour’s reasons for judgment). In doing that, her Honour determined that it was in the children’s best interests to put in place orders which, although in line with the wife’s proposal, expanded it somewhat.
Given the view then that we take of how her Honour in fact approached and determined the parenting issues, we do not accept that her Honour erred by not in fact making an order that provided for substantial and significant time when she said that there should be such an order. Indeed, it is not the case that anywhere in her Honour’s reasons did she find that the children should spend substantial and significant time with the husband, and the husband was incorrect to assert otherwise.
Thus we find no merit in Ground 2.
As referred to above, the submission is that Grounds 1, 4 and 6 become relevant if her Honour did err in treating the orders she made as providing for substantial and significant time. Although we have found no error here we still propose to briefly address these grounds.
As to Ground 1 we are not persuaded that her Honour elevated the interests of the wife to be equal to or more important than the children’s interests.
It is plain that the wife had a number of reasons for wanting to relocate including that she wanted to make a fresh start and that she wanted to put some distance between herself and the husband, but it was equally apparent that those reasons were inextricably linked with the welfare and wellbeing of the children.
There was clear evidence that the relationship between the parents was toxic and there was considerable conflict to which the children were exposed.

Her Honour accepted the evidence of the family report writer “that the parental conflict has tainted the security of the children, particularly the elder children with respect to their parental attachments”. Her Honour found that the husband has exposed and “will continue to expose the children to his negative views of their mother and her partner”. That then had “the potential to negatively impact upon the children’s relationship with their parents where the children are, in the family report writer’s words, ‘becoming increasingly conscious of the mistrust and lack of cohesion between their parents’ and enmeshed in their father’s views” [original emphasis].
Thus, there was an obvious need here for the children to be protected from the conflict and in particular their father’s role in the same, and the wife’s case was that to create distance between her and her husband may very well achieve that.
Certainly, as the husband’s solicitor emphasises, the family report writer said in his report that “[o]f itself, [Ms Artliff-Selkin] moving to [C] – and decreasing the children’s time with their father – does not remove the underlying problems. The perceptual delineation for her – of starting a new life elsewhere – would be of importance for her” (Family Report, 19 May 2011, paragraph 62). However, that only serves to emphasise the point; if the wife is in a better place then the wellbeing of the children in her care can only be enhanced.
Her Honour clearly recognised this, and insightfully quoted from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 160 where his Honour said this at paragraph 144:
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. [Footnotes omitted]
We find that her Honour has appropriately taken into account the “legitimate interests and desires” of the wife and she has neither elevated them to being equal to or more important than the interests of the children, and nor has

her Honour failed to comply with s 60CA of the Act.
As to Ground 4, likewise, we are not persuaded that her Honour erred in the manner suggested. Her Honour was obliged to consider the proposals of the parties and assess their advantages and disadvantages in the context of the relevant s 60CC factors and, in so far as it was possible, in the context of

s 65DAA (Morgan & Miles (2007) FLC 93-343 at paragraph 81; Taylor & Barker (2007) FLC 93-345 at paragraph 60). A perusal of her Honour’s reasons for judgment indicates that her Honour carefully and thoroughly carried out this task, and in particular that her Honour properly considered the husband’s proposal and concluded that it was in the best interests of the children to put in place orders that were more in line with the wife’s proposal.
We also agree with the written submission of the wife that a fair reading of paragraphs 116 to 126 inclusive of her Honour’s reasons indicates that

her Honour did in fact address the wife’s position if her Honour was to make orders in line with the husband’s proposal.
There is no merit in Ground 4.
As to Ground 6, again, we are not persuaded that this complaint is made out. The path by which her Honour arrived at her finding is readily able to be discerned from her Honour’s reasons.
Her Honour found that the children would benefit from a meaningful relationship with the husband and her Honour was satisfied on the evidence that that could be achieved with the wife and the children relocating to C.

Her Honour said this:
58.The children have a strong attachment with both parents. However in my consideration of the competing proposals I place significant weight on the historical care structure of children this age which supports a continuation of their primary care by their mother. The weight of the evidence is that the wife acquitted herself well prior to and following separation in her care of the children.
59.I am unable to conclude that a change to the children’s residence on the wife’s proposal, one hour’s drive [from S], would negatively impact upon the children’s relationship with their father in circumstances where they have a secure attachment to him and where they would remain in the primary care of their mother.
These findings are consistent with the evidence before her Honour.

The family report writer, who was not cross-examined on his reports, did not give any indication in those reports that the strong bond between the children and their father would be diminished by the proposed move. He did say in his first report (at paragraph 89) that “the separation and recent events [had] tainted the security of their attachments”, but that is an entirely different matter and indeed suggests that the arrangement then in existence was problematic for the children and their relationship with their parents.
The husband’s solicitor suggested that the wife in her evidence “conceded that there would be a diminution in the meaningfulness of the Father’s relationship with the children should they relocate to [C]”. However, that is not an accurate representation of her evidence. What she said in cross-examination was as follows:
[MS CAREW]          All right, okay, but you would agree with me that your proposal, as you have just explained, is vastly inferior to what the children currently have with their father?---No, I don’t think so because he will lose two over nights but he will gain two extra nights of seeing the children and that will be on a time when he’s actually not working whereas at the moment he’s often working and requires three nannies.
[MS CAREW]          Well, I don’t quite follow that. He currently has five nights a fortnight. Your proposal is that he has two or maybe three nights a fortnight?---Plus dinner time, two extra nights per week for dinner and activities.
[MS CAREW]          You would certainly agree with me, wouldn’t you, that even if [sic] were to drive up, an hour up the road and then drive back another hour, so that’s two hours of travel for him and having a dinner engagement with three little children is a far cry from having them at home, doing their schoolwork with them, doing their activities with them, bathing them, feeding them, making them dinner, putting them to bed; you would agree with that?---Yes.
[MS CAREW]          So would you agree, it follows, that what you’re proposing is far inferior to what he is currently able to do?---Well, no, I don’t quite agree with that. I understand what you’re saying with the bathing and everything but just, no.
(Transcript 26 May 2011, p 37, lines 20-40)
There is no concession there as asserted by the husband’s solicitor.
It was then submitted by the husband’s solicitor that her Honour erred in how she addressed the question of a meaningful relationship. Mr Cooper referred us to the possible interpretations of s 60CC(2)(a) identified in McCall & Clark (2009) FLC 93-405 at paragraph 118 and submitted that instead of applying the preferred approach of looking to the future and framing orders to take into account the effect of the changes that will occur, her Honour applied the “present relationship” approach. Although, depending on the circumstances, both approaches are open, we agree with Mr Cooper that the better approach is as he suggested, but we do not agree that her Honour failed to adopt that approach. As is plain from paragraphs 58 and 59 of her Honour’s reasons,

her Honour was concerned to maintain the meaningful relationship in the context of the changes that would flow from the proposed relocation.
Accordingly, there is no error here.
Turning then to Ground 3.
The first issue raised here is her Honour’s statement in paragraph 139 of her reasons for judgment that the presumption in s 61DA(1) is “rebutted because of family violence”. Correctly, the husband’s solicitor says that the presumption is not rebutted when family violence is found, but rather it is not “enlivened”

(s 61DA(2)). Further, and again correctly, the husband’s solicitor says that there was no finding by her Honour, and nor could there be, of family violence.
Thus, there is error here by her Honour, but again we do not consider that that error is appealable. Her Honour’s intention was clear, namely that in the one area of the children’s health, the presumption was rebutted by the evidence, and the husband’s solicitor conceded that before us. Her Honour said this in paragraph 140:
Notwithstanding the otherwise clear legislative intent which provides that children’s best interests are met by both parents engaging in their long term decision-making, based on my findings with respect to the “best interests” enquiry, there are “exceptional circumstances” that lead me to conclude that I should make an order that the wife have sole parental responsibility for decisions to do with the children’s health, inclusive of their dental health. [Footnotes omitted]
Otherwise, her Honour concluded (in paragraph 141) “that the children’s best interests will be served by both parents engaging equally on other long-term decisions to do with them.”
The second issue, it is said, is that to provide sole parental responsibility in relation to the health of the children does not remedy the particular presenting problem, namely the failure of the husband to respond in a timely fashion to the need of the children to have dental treatment.
However, we consider that in making this complaint the husband has misunderstood the basis of the order made by her Honour. Her Honour was not intending to just address the husband’s failure to attend to the children’s need for dental treatment, but was using that as an example of why it was necessary for the wife to have the sole responsibility for the children’s health.

Her Honour said this in her reasons for judgment:
142.The difficulties in affording [L] and [I] responsive timely dental treatment was a serious abrogation of parental responsibility evidencing an inability by the parents to exercise “...the degree of communication, co-operation and agreement which the Act requires of parents who share parental responsibility equally.” That cannot be repeated.
143.As a result of the potential health consequences for the children’s health arising from that, I see no reason to limit final decision-making with respect to dental matters only, as opposed to health generally.
144.It is appropriate that the wife who has evidenced parental capacity and insight should be seized with ultimate decision-making in the event of a dispute.
145.However an order along the lines of that made by Rose J in Pottinger & Bainton [2009] FamCA 124 would provide the parents with an opportunity to communicate about health and dental issues in an environment that reduces the potential for conflict and yet provides a mechanism for the making of a decision where there is no agreement. I am satisfied that the wife would comply, not only with the letter, but the spirit of the order. [Original emphasis]
Accordingly, again, there is no error here by the Federal Magistrate.

Property settlement

Ground 7

The complaint here can properly be described as a “weight challenge” and the difficulties confronting the husband in succeeding in such a challenge are well known.
In Norbis v Norbis (1986) 161 CLR 513, Brennan J said at 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [[1948] 1 All ER 343 at p.345], Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230:
Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. [Footnotes omitted]
As the authorities make clear, the fact that members of an appeal court may have reached a different conclusion had they been determining the proceedings at first instance does not render the Federal Magistrate’s decision erroneous. It is in the nature of the exercise of judicial discretion that different minds will reach different conclusions, without any of those conclusions necessarily being erroneous. The authorities leave no uncertainty that that is the law.

In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In this case there was no dispute about the respective contributions of the parties and no challenge is made to her Honour’s findings in that regard; there was a dispute as to the use of the funds contributed, but her Honour’s findings as to that issue do not form the basis of any complaint by the husband.
In his submissions the husband’s solicitor focussed on the initial contributions of the parties which favoured the husband six to one ($360,000 to $60,000), and suggested that “[i]n the course of a 10 year relationship, it cannot be said that the contributions of the parties have equalised over time such as a disparity of initial contributions can be otherwise assessed.”
In addition, the husband’s solicitor emphasised that a particular piece of real estate that the husband brought into the relationship was still in the hands of the parties at the time of the hearing, and finally, he suggested that it was important that “[t]he substantial property the subject of the proceedings, the former matrimonial home, ‘can be sourced to the Husband’s initial contributions’” [original emphasis].
As pointed out by the wife in her written submission, her Honour was well aware of these issues and it is readily apparent from her reasons for judgment that she had regard to these contributions by the husband. For example, in paragraph 227 her Honour said this:
I take into account the husband’s initial contributions which favoured him
6 to 1, the nature and use to which his contributions were put during the relationship, that the net proceeds of the subsequent sale of real property introduced by him, save for the [T] property, favoured him, and that the [T] property, which was rented throughout the relationship, increased in value and represented just over 20% of the net pool at trial.
Relevantly, her Honour continued:
231.Whilst the husband’s financial contributions favour him, in assessing what weight, if any, should be made for that, I am unable to ignore the following.
a)I do not accept that that the husband’s initial contributions remained “separate” in the sense of “untainted” by “the myriad of other contributions that each of the parties…made during the course of their relationship”.
b)This is not a case where, unlike the facts in Cabbell (supra), it can be said that the husband’s initial or later direct financial contributions laid the foundation for the acquisition of significant wealth still in existence at the date of trial.
c)Although a precise analysis is not possible on the state of the evidence, and whilst the [S] property can be sourced to the husband’s initial contributions, that property being the significant asset of the parties at trial representing over 65% of the pool, to ignore the wife’s contributions to that property, both financial and otherwise, in the particular circumstances of this case would do her a significant injustice. [Original emphasis]
Her Honour then paid particular attention to the contributions of the wife, none of which were the subject of any challenge by the husband, and her Honour concluded as follows:
241.But for the wife’s weighty and significant contributions over a
10 year period the husband’s initial contributions and later direct financial contributions may have carried more weight.
242.Following separation the wife continued to bear the primary parenting role. There was a disparity in the parties’ financial circumstances which was not sufficiently addressed by the payment of capital sums, child support, a superannuation draw-down and spouse maintenance for a short period of time. This requires a small weighting in favour of the wife.
Her Honour was exercising an undoubtedly broad discretion. Others may have reached different conclusions with respect to the assessment of the respective contributions of the parties, but that is not the test. What is required is that the husband demonstrate to us that her Honour exceeded the “generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”. The husband has not persuaded us that that is the case here.
Accordingly, we find no merit in this ground.

Ground 9

This is a ground that must succeed.
It seems that with the consent of the husband, the wife was able to pay her legal fees of $21,200 from a Westpac Line of Credit. It also seems that it was accepted by the parties and her Honour that the wife would have to reimburse the husband for that amount. Indeed, her Honour, after calculating what the wife should receive from the proceeds of sale of the former matrimonial home, said this:
275.I propose that this [the amount she was to receive] be paid to her from the net proceeds of sale of the [S] property less an adjustment to the husband of $21,200 for legal fees paid from the line of credit.
However, her Honour omitted to include this in the orders that she made for property settlement.
The wife in her written submission says that she does not know if in subsequently ordering by consent the wife to pay to the husband $37,928 at the settlement of the sale of the former matrimonial home, the amount of $21,200 had been taken into account. In response the husband’s solicitor provided us with a schedule which set out how the sum of $37,928 was calculated, and we are satisfied that the $21,200 was not taken into account in that calculation.
The wife then submits that the husband should have raised this when the matter came back before her Honour on two separate occasions, including on the occasion referred to above when the amount to be paid to the wife from the proceeds of sale was calculated, and that it is a matter that should be dealt with under the slip rule rather than by way of appeal.
The husband’s solicitor has explained to us why this issue was not raised before her Honour, and we accept that explanation.
We accept that it is a matter that could easily have been dealt with under the slip rule, but given that it is now before us we propose to allow the appeal in relation to this issue and re-exercise the discretion resulting in a variation of

her Honour’s orders such that the wife is obliged to pay the sum of $21,200 to the husband.

Conclusion

We have found no merit in any of the grounds of appeal relating to the parenting orders, but we have found merit in one of the grounds of appeal relating to the property settlement orders. Thus, we will allow the appeal in part but otherwise dismiss it. We will then vary the orders for property settlement in the way that we have indicated.

Costs

At the conclusion of the hearing we received submissions from the parties as to the question of costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, the wife indicated that although she was representing herself, she had incurred legal costs in relation to the appeal. Thus she sought an order that the husband pay her costs.
In response to that application the husband’s solicitor indicated that there was nothing that he could say against such an order being made. Thus the wife should have a costs order in her favour.
Of course, the appeal has not been wholly unsuccessful, and we are allowing the appeal in relation to her Honour’s omission to make an order providing for the wife to reimburse the husband the sum of $21,200. However, given the circumstances that the husband could still have sought to remedy that omission by use of the slip rule, rather than by way of appeal, there is no basis for the husband to be given a costs certificate which is the application that his solicitor made in the event that the appeal was successful.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ & Strickland J) delivered on 25 February 2013.

Associate:

Date: 25 February 2013

[2013] FamCAFC 19

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Parental Responsibility

Relocation

Substantial and Significant Time

Property Settlement

Contributions

Spousal Maintenance