Sladin and Scabel (No 2)

FAMILY COURT OF AUSTRALIA

SLADIN & SCABEL (NO. 2)

[2007] FamCA 1079

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests of a child – Three children of the marriage aged 15, 12 and 10 – History of non-compliance with “live with” and “time with” arrangements by the husband particularly in relation to the youngest child, denigration of the wife by the husband, and development of an “unhelpful alignment” by the youngest child with the husband – It was appropriate and necessary having regard to the welfare of the children, to make orders on the final day of the hearing inter alia that all three children live with the wife and the youngest child have supervised time with the husband – Despite concerns as to the parties’ ability to practice joint parental responsibility, having regard to the best interests of the children, the presumption of equal shared parental responsibility is not rebutted – While equal time may be reasonably practicable, it is not in the best interests of the children – In relation to the best interests considerations, the husband is unwilling and/or unable to facilitate and encourage the relationship between the youngest child and the wife, resulting in adverse effects to the child’s emotional and psychological well being – Substantial and significant time is reasonably practicable and in the best interests of all three children however, in relation to the youngest child it will be postponed to enable therapeutic processes to be implemented – In relation to the youngest child the time and manner in which he spends time and communicates with the husband is subject to further information and submissions

FAMILY LAW – PROPERTY – Asset pool – Contributions – Section 75(2) factors – Just and equitable – Long marriage of 20 years – Wife aged 44 and husband aged 45 – The parties acquired various properties throughout their marriage for investment purposes as well as for renovation and sale for profit – Asset pool of a little over $1 million – Notional capital gains tax is not included in the asset pool under liabilities but provision is made in the orders to take these liabilities into account – Taking into account the long marriage, the different roles the parties’ adopted throughout the marriage, the husband’s initial contributions, both parties’ homemaker contributions though noting the wife’s vastly superior contributions in this regard, and the wife’s indirect financial contributions, the contributions of the parties are equal – In relation to section 75(2) factors, the wife’s limited earning capacity due to lack of formal qualifications, her role in the marriage and continued responsibility for the primary care of the children, and the husband’s greater capacity for gainful employment, call for a 15 per cent adjustment in favour of the wife – Having regard to the specific properties each party seeks to retain, the end result of a 35:65 per cent spilt in favour of the wife where the husband is entitled to $232,941 and the wife to $567,518 (these sums taking into account the $105,000 previously distributed to both parties pursuant to previous orders), is just and equitable

Family Law Act 1975 (Cth)

APPLICANT:

Ms Sladin

RESPONDENT:

Mr Scabel

FILE NUMBER:

DGF

1196

2005

DATE DELIVERED:

12 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Carter J

HEARING DATES:

2, 3, 4, 5, 6, 9, 10, 11 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Stewart

SOLICITOR FOR THE APPLICANT:

Richard Calley Pty Ltd

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :

Mrs B Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER :

T J Mulvany & Co

Orders

Property Orders

IT IS ORDERED

On or before 14 November 2007 the husband:
(1.1)do all acts and things required to transfer to the wife at her expense all of his interest in the property situate at and known as … (“the [B] property”);
(1.2)pay to the wife the sum of $94,518;
(1.3)pay to the wife the further sum of $1,000;
(1.4)pay the outstanding debt to S Real Estate (estimated at $5,000).
That contemporaneously with the transfer of the B property the husband shall do all things necessary:
(2.1)to obtain for the wife either a discharge of the mortgage to the Commonwealth Bank of Australia registered in Dealing No. … or a release by the said Bank in respect of the said dealing;
(2.2)to obtain for the wife either a discharge of the Viridian Line of Credit account No. … with the Commonwealth Bank of Australia or a release by the said Bank of the wife in respect of the said Line of Credit.
That the husband indemnify the wife in respect of all liability in respect of the said mortgage to the Commonwealth Bank of Australia and the said Line of Credit.
That the wife indemnify the husband in respect of any liability for any Capital Gains Tax which may arise in connection with the B property.
Contemporaneously with the transfer of the B property and the payment referred to in par (1) hereof and the discharge of, or release of the wife from, liability for the mortgage and Line of Credit as provided in par (2) hereof, the wife do all acts and things required to transfer to the husband at his expense and subject to all encumbrances, including but not limited to mortgages, all her interest in:
(5.1)the property situate at and known as … (“Unit 4”).
That the husband indemnify the wife in respect of all liability in respect of all mortgages and any other encumbrances secured by or affecting Unit 4, together with any liability for Capital Gains Tax which may arise in connection with that property.
That pending the husband’s compliance with pars (1) and (2) hereof and the wife’s compliance with par (5) hereof:
(7.1)neither the husband nor the wife encumber any of the real properties referred to in pars (1) and/or (5) hereof save with the written consent of the other;
(7.2)the provisions of pars (8)(b), (c), and (d) of the orders of 10 November 2005 shall continue in full force and effect.
That the husband and the wife do all such acts and things and sign all such documents as may be necessary to be caused to be put on the market for sale the E property and Units 6 and 7 (“the sales”).
That the wife be and is hereby appointed to conduct the sales on behalf of the husband and the wife and to give better effect to this order:
(9.1)the husband forthwith execute a Power of Attorney in favour of the wife authorising her to act as his sole attorney for the purposes of the sales;
(9.2)the wife have authority to conduct the sales, such authority to include but not be limited:
(9.2.1)to appoint a selling agent for the sales (“the Agent”);
(9.2.2)to carry out such works in preparation for the sales as the Agent may recommend;
(9.2.3)to fix a reserve price for the sales;
(9.2.4)to accept on behalf of both the husband and the wife any offer or bid made by any prospective purchasers;
(9.2.5)to execute any Sale Note or Contract of Sale in the name of the husband and the wife and to bind both the husband and the wife thereto;
(9.2.6)to sign all documents and do all acts and things on behalf of the husband and the wife as may be required under the Contract of Sale and to complete the sale;
(9.2.7)to effect a transfer of the property to the purchasers; and
(9.2.8)to disburse the proceeds of sale as set out hereinafter.
That the proceeds of sale be applied:
(10.1)in payment of costs of and incidental to the sale, including Agent’s commissions, advertising and legal costs;
(10.2)to discharge the mortgage to the Commonwealth Bank of Australia registered in Dealing No. … together with any mortgage or other encumbrance secured by or affecting the real properties referred to in par (5) hereof, save for any caveats registered on any of the real properties;
(10.3)to retain sufficient moneys for provision for payment in due course of Capital Gains Tax consequent upon the sales (“the Capital Gains Tax Fund”);
(10.4)to pay to the wife 39.6 per cent of the balance then remaining;
(10.5)to discharge the said Viridian Line of Credit;
(10.6)to pay the balance to the husband subject to him paying the debt to S Real Estate and the costs ordered by Dessau J on 13 August 2007.
Upon contracts being exchanged for the sale of the said units the husband and wife forthwith do all such acts and things as may be necessary to ascertain any Capital Gains Tax liability.
The Capital Gains Tax Fund shall be applied by the wife’s solicitors:
(12.1)to satisfy any Capital Gains Tax liability;
(12.2)to pay any accountants’ fees in ascertaining any Capital Gains Tax liability;
(12.3)to pay 65 per cent of any balance to the wife; and
(12.4)to pay any balance thereafter to the husband.
That the husband do all such acts and things necessary to effect the sale and completion of the sales, including but not limited to:
(13.1)co-operating with the Agents in relation to carrying out any works in preparation for the sales and in relation to the E property be open for inspection by prospective purchasers;
(13.2)keeping the E property clean and tidy in readiness for inspection by prospective purchasers;
(13.3)vacating the E property no less than seven days before the settlement of the sales.
That as and between the parties and pending payment or completion of the sales and subject to these orders:
(14.1)the wife have the sole right to occupy the B property; and
(14.2)the husband have the sole right to occupy the E property.
That in the event that the husband refuses or neglects to execute any deed or instrument necessary to give force and effect to these orders, the Court appoint an officer pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such Deed or Instrument in the name of the husband and to do all other acts and things necessary to give validity and operation to the said Deed or Instrument and that the husband pay the costs of the wife on a solicitor/client basis in relation to the obtaining of the Court-appointed officer’s signature pursuant to this order.
That the husband and the wife each be liable for and responsible to pay in equal shares any Capital Gains Tax liability arising from the sale of the share pursuant to the orders of this Court made 10 November 2005 and/or 27 February 2006.
Save as aforesaid each of the husband and the wife retain for his or her sole use, enjoyment and benefit absolutely all items of property of whatsoever nature, including but not limited to personalty, furniture, effects, appliances and chattels, motor vehicles, savings and investments, life insurance and superannuation entitlements in his or her respective possession free from any claim by the other.
That save as aforesaid all items of personalty situate in the B property shall be deemed to be in the possession of the wife and all items of personalty situate in the E property shall be deemed to be in the possession of the husband.
That:
(1.1)save as aforesaid each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and each party be solely liable for and indemnify the other in respect of all debts incurred in his or her name;
(1.2)the husband remove at his expense any caveat lodged by or on his behalf affecting the E property, the B property and/or Units 6 and/or 7;
(1.3)the wife remove at her expense any caveat lodged by or on her behalf affecting the E property, Unit 4, Unit 6 and/or Unit 7.
That the husband’s Form 2 Application in a Case filed 29 August 2007 be dismissed.
That all documents produced on subpoena be returned to the person or institution providing the same at the expiration of 45 days from this day.
That all exhibits be returned to the person, or solicitor for the person tendering the same provided that they be returned to the Court upon request.
That save as aforesaid all applications be otherwise dismissed and removed from the list of cases awaiting determination save for any applications for costs.
That each party be at liberty to bring an application for costs by filing written submissions in respect of such application within 14 days of this day.
The respondent to any such application shall file written submissions in response within 14 days of service of the other party’s submissions.
The cover sheet of any such submissions shall be annotated with the date of service of such submissions.
That the Reasons for Judgment for the orders of the Honourable Justice Dessau made 13 August 2007 be removed from the sealed envelope with a copy to the placed on the Court file in the usual manner and copies to be made available to both the husband, the wife and the Independent Children’s Lawyer.

IT IS CERTIFIED

That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

Children’s Orders

IT IS ORDERED

That in addition to the order made 11 July 2007 the following orders are made:
(1.1)that pursuant to s 65L(1)(a) of The Family Law Act1975 the parenting orders be supervised by a Family and Child Counsellor nominated by the Director of Court Counselling of this Registry of the Court for a period of 18 months, for supervision which shall be on a reportable basis by a Family Consultant to be nominated by the Manager, Child Dispute Services or nominee and I would request that Mr V be the Family Consultant to be involved;
(1.2)that further consideration of the time and communication to be spent by the son with his father be reserved.
That this matter be listed before me on 22 February 2008, with liberty to apply in the meantime, in order to consider future arrangements to be made in respect of the son spending time and communicating with the husband.
That the appointment of the Independent Children’s Lawyer not be discharged until further order and that Legal Aid Victoria be requested to continue to fund the Independent Children’s Lawyer.
That the Independent Children’s Lawyer be at liberty to make an application for costs by filing and serving written submissions within 14 days of this day. The respondent to any such application have a further 14 days to reply. The cover sheet of all submissions is to be annotated with the date of service.
That my Associate forward to each of the parties (including the Independent Children’s Lawyer) a copy of the Reasons for Judgment published this day by sending the same to him or her by email.
Notwithstanding the orders made 11 July 2007 the son spend time with the husband, together with his siblings for a meal and a movie on one occasion between 1 and 14 December 2007 and on a second occasion between 22December and 24 December 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1196 of 2005

MS SLADIN

Applicant

And

MR SCABEL

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(Reserved)

Mr Scabel (for convenience referred to as “the husband”) and Ms Sladin (for convenience referred to as “the wife”) are in dispute as to parenting issues and division of property consequent upon the breakdown of their marriage.
The children in question are an older daughter, V, born in May 1992 and currently aged 15 years; a younger daughter, M, born in November 1994 and currently aged 12 years and a son, R, born in May 1997 and currently aged 10 years. These children will be collectively referred to as “the children” and individually by their initials.

Short History

The husband was born in November 1961 and is currently 45 years of age. The wife was born in August 1962 and was 44 years of age at the trial. They cohabited from 1983 and married in March 1987. Separation took place on 24 October 2005 and they were divorced on 3 June 2007.
On the morning of 24 October 2005 the wife put a “stop” on all of the bank accounts operated by the husband and the wife. The wife’s father had been staying with his daughter and son-in-law for a few days at the time and he was asked by the husband to leave the property after the husband had been notified of the situation in respect of the bank accounts. The wife’s father telephoned the wife as a consequence and he and the wife collected the children from school at or around the middle of the day. Thereafter the wife and children went to the holiday property owned by the husband and the wife at B (“the [B] property”). The wife continues to live at this property together with the older daughter and the younger daughter, and more recently the son.
Following negotiations between their respective solicitors, arrangements were made for all three children to spend time with the husband for the following weekend. The arrangement was that the older daughter, who had a curriculum day at school, was to be returned to the wife on Monday, 31 October 2005 at 10:30am or thereabouts at McDonalds in N and the younger daughter and the son were to be returned to their school. It was the husband’s case that he had had discussions with all three children during the weekend during which he had given them a choice of whether they would go back to their mother or remain with him. According to the husband, the older daughter and the younger daughter both wanted to go back to their mother and the son did not want to do this. What ensued was that both parents arrived at the school on the Monday afternoon. The School Principal attempted to mediate, speaking to the husband and the wife separately. When the Principal went to the office in order to obtain a facsimile copy of correspondence between the parties’ solicitors, the husband left the school grounds with the son.
At the time the trial commenced the orders relating to the children were those made by consent on 12 May 2006. By way of final orders the husband and the wife were to retain and exercise joint parental responsibility for all long-term issues in relation to the children and each of them was to exercise day-to-day responsibility for the care, welfare and development of the children when they were in the respective care of each parent. Interim orders were made which in broad terms provided for the children to reside with each parent on a week about basis.
In practical terms that has not been the case. So far as the son is concerned, he has, notwithstanding those orders, principally lived with his father and has spent limited and irregular periods of time with his mother. Until October or November 2006 both the older daughter and the younger daughter have generally lived with each parent in accordance with the Court orders, however, since that time they have principally lived with the mother, generally spending time with their father every second week from Thursday until Monday, except for school holidays which have largely been shared between the parents.
The husband has continued to live at the former matrimonial home at E (“the [E] property”). He gave his occupation as home duties, saying that he was presently not working a great deal, however, did work where possible as a carpenter. He anticipated being able to increase his work after the trial had been completed during periods of time when the children were not living with him.
For her part the wife is in part-time employment at the B Bakery and from time to time she gives assistance on a voluntary basis at the B General Store.

The Hearing

The children have been represented by the Independent Children’s Lawyer (“the I C L”) and Mrs Hooper of counsel appeared on behalf of the I C L at the hearing. Ms Stewart of counsel appeared on behalf of the wife. The husband appeared in person.

The matter had been listed as a reserve case and was transferred to me at about 3.30pm on Monday, 2 July 2007 after my primary case had been resolved. The case had been listed as a five-day case but I was assured it could be completed in four days and by the end of the week. That did not eventuate and evidence continued on Monday, 9 July 2007 and for part of Tuesday, 10 July 2007. Submissions took up the remainder of that day.
On the second day of the hearing the husband had brought the son to Court. The son should have been spending time with the wife, had the parties been complying with the most recent Court orders and I was advised that the wife sought to spend time with him over lunch and also for the balance of the week. That was supported by the I C L and the husband also agreed. Accordingly, I made orders on 3 July 2007, which amongst other things, authorised the wife to collect the son from the Child Minding Facility and for him to be given into her care in accordance with existing Court orders.
Thereafter the son remained in the wife’s care and in the afternoon of Friday, 6 July 2007 I was asked on behalf of the wife for this to continue over the weekend, pending any order which might be made on the following Monday. At that stage it had been hoped that the matter would have reached its conclusion.
The husband’s response was to say words to the effect that he would like to see his children and to have the time with them that he deserved.
I had been concerned that the husband had left the son at home alone on the first day of the trial, the husband having left at about 7:00am. Subsequent evidence made it clear that the son had been alone at home until about 3:30pm. Whilst the husband had said he would have been able to make arrangements for the son for the second day of the hearing, he did not do so, and brought him to Court where he was placed in the Child Minding Centre.
I found the wife’s proposals in respect of extending the time that the son was to spend with her to be eminently satisfactory given the lack of time that she had had with him in the more recent past; the fact that his sisters could spend time with him; and also because the wife was able to make proper arrangements. Additionally, it was clear from the husband’s evidence that when all three children were together with him the demands that they placed on him were significant. He would be relieved of any such difficulty over the weekend and would be able to concentrate on the final stages of the hearing. Accordingly, the son spent the weekend with his mother and his sisters and remained there.
Having heard submissions on 10 July 2007 and having had the opportunity to consider them and the evidence overnight I found it appropriate and necessary to make certain orders on 11 July 2007. In broad terms, I had concluded that the welfare of all three children required that they should live with the wife, with the older daughter and younger daughter to spend time with their father on alternate weeks from after school Thursday until commencement of school on the following Monday, unless that Monday was a public holiday or a school curriculum day, when the time would be extended to the Tuesday. Additionally, it was my conclusion that the older daughter and the younger daughter should spend time with their father from the cessation of school on Thursday until 8:00pm in the alternate week, as well as for one-half of school term holidays.
I had also formed the view that any time that the son was to spend with his father should be the subject of a structured program involving a contact centre, initially so that the son could be assisted in preparing to spend time with his father and also after that time had been spent; further, to assist the father in making sure that no inappropriate comments were made to the child; and in particular, to ensure that the son returned to his mother without incident.
I had also been provided with information as to the availability of a suitable contact centre and the delays which were involved given that there was a waiting list. It was explained that the current delay was about three months. In order for this process to commence it was important for orders to be made as soon as possible.
It was also common ground that the son should recommence counselling with a psychologist as soon as possible. This matter also required immediate attention.
I had also determined that the son should be enrolled at another school and given that the school term was soon to commence, arrangements had to be made in this regard.
It was obvious that a Judgment would not be able to be given for some time and it was imperative that these and some other matters be the subject of immediate orders. I extended time for any appeal to be filed to one month from the date of publication of my Reasons for Judgment and in those circumstances made orders as set out at the beginning of this Judgment follows:
“(1)That all previous parenting orders made pursuant to the Family Law Act 1975 be discharged.
(2)That until further order the husband and the wife have equal parental responsibility for the children [the older daughter] born […] May 1992, [the younger daughter] born […] November 1994 and [the son] born […] May 1997, subject to par 11 hereof.
(3)That the husband and the wife exercise day-to-day responsibility for the children when the children are in their respective care.
(4)That [the children] live with the wife.
(5)That [the older daughter] and [the younger daughter] communicate and spend time with the husband as follows:
A.       during the school term:
(i)       each alternate week from cessation of school Thursday until commencement of school the following Monday (or commencement of school the following Tuesday if the Monday is a public holiday or a school curriculum day). This arrangement is to recommence upon the first Thursday of each school term;
(ii)      each alternate week from cessation of school Thursday until 8.00pm. This arrangement is to recommence upon the second Thursday of each school term.
B.For one half of all school term holidays (save for the current school term holiday) and the long summer vacation at times to be agreed. In the absence of agreement first half in even-numbered years and the second half in odd-numbered years;
C.The husband shall be at liberty to telephone [the older daughter] and [the younger daughter] at the wife’s residence every Monday, Wednesday and Friday when [the older daughter] and [the younger daughter] are not in the husband’s care, provided such calls conclude by 7.30pm and they do not exceed a 30 minute duration. Further, subject to appropriate parenting, the wife shall ensure that all reasonable requests by either [the older daughter] or [the younger daughter] to telephone the husband at other times will be accommodated and facilitated.
D.Such further or other times that shall be agreed in writing by the husband and the wife.
E.From 10:00am Saturday, 14 July 2007 to 3:00pm on Sunday, 15 July 2007.
(6)That [the son] communicate and spend time with the husband as follows:
A.Subsequent to the parties receiving intake at the [G] Children’s Contact Service, […], supervised at such Centre for at least 3 MONTHS.
B.That the question of further communication and periods of time to be spent by [the son] with the husband be reserved.
(7)Paragraphs 4, 5 and 6 herein shall be varied and made subject to the following:
A.The children shall spend from 6.00pm the Saturday prior to Mother’s Day until 6.00pm Mother’s Day with the wife;
B.[The older daughter] and [the younger daughter] shall spend from 6.00pm the Saturday prior to Father’s Day until 6.00pm of Father’s Day with the husband and [the son] shall also accompany his siblings, but not before Father’s Day 2008;
C.In 2007 and alternate years thereafter, the children shall live with the wife from 4.00pm Christmas Eve until 4.00pm Christmas Day and the children shall live with the husband from 4.00pm Christmas Day until 4.00m Boxing Day;
D.In 2008 and alternate years thereafter, the children shall live with the husband from 4.00pm Christmas Eve until 4.00pm Christmas Day and the children shall live with the wife from 4.00pm Christmas Day until 4.00pm Boxing Day;
E.For the purposes of the children’s birthdays:
(i)       If it is a school attendance day, the children shall spend two hours with each parent at times to be agreed and in the absence of agreement the children shall spend time with the parent the celebrating child is not living with, from 4.00pm until 6.00pm;
(ii)      If it is a non-school attendance day, the children shall spend four hours with each parent at times to be agreed and in the absence of agreement the children shall spend time with the parent the celebrating child is not living with, from 10.00am until 2.00pm on that day.
(8)That the wife shall be at liberty to telephone the children at the husband’s residence every Monday, Wednesday and Friday when the children are not in the wife’s care, provided such calls conclude by 7.30pm and they do not exceed a 30 minute duration. Further, subject to appropriate parenting, the husband shall ensure that all reasonable requests by any one of the children to telephone the wife at other times will be accommodated and facilitated.
(9)Unless the parties otherwise agree, changeover for [the older daughter] and [the younger daughter] shall occur at school on school attendance days and on non-school attendance days outside the N Cinema.
(10)That in the event that any one of the children become ill or requires medical attention whilst in either the husband’s or the wife’s care, such parent shall advise and keep the other parent informed of same.
(11)That forthwith, the husband and the wife complete all required documentation and execute all necessary consents to enrol [the son] at [B] Primary School, with a view for [the son] to commence at such school at the commencement of Term 3, 2007, and in the event the husband does not comply with the provisions of this order the wife shall be and is hereby authorised to do all acts and things necessary to so enrol [the son] without the husband’s consent.
(12)That subject always to the School Principal and/or delegate of the Principal and subject to each parent being responsible in meeting any associated costs, the husband and the wife shall be at liberty to:
A.Attend all of the children’s school functions and concerts customarily attended by parents and members of the family;
B.Receive copies of the children’s school reports and any school notices, newsletters or like report customarily received by parents;
C.Arrange a separate parent/teacher interview to discuss the educational progress of each child from time to time.
SAVE THAT the husband shall not be permitted to attend any function for [the son] of the nature referred to in par 12A hereof for a period of five months from this day.
(13)Unless the School Principal and/or delegate of the School Principal specifically authorises the husband and/or the wife to attend upon any of the children’s schools during school hours on a specific occasion, subject to par 12 herein, the husband and the wife shall be restrained from attending upon such schools whilst any of the children are in attendance there.
(14)That the husband and the wife, their servants and/or agents, including members of their respective households, be restrained from:
A.Denigrating the other party, their partner or family members; and
B.Discussing these legal proceedings and the making of these orders; and
C.Discussing any further or contemplated legal proceedings; and
D.Discussing any changes to the children’s living arrangements from those provided in these orders; and
E.Discussing the husband’s and wife’s related financial matters, including but not limited to child support issues, provision of clothing and facilities;
in the sight and/or hearing and/or presence of either one or more of the children
PROVIDED THAT nothing in this order shall preclude discussion taking place during any attendance upon Mr [V] as provided in par 15 hereof, subject however to Mr [V’s] discretion.
(15)That the Family Consultant, Mr [V] is requested to explain these orders, at his discretion, to all three children. The husband and the wife do all things necessary to ensure that the children attend upon the Family Consultant as and when requested, and if requested and authorised by the Family Consultant, attend personally upon him and participate in the consultation, and it is noted that the Family Consultant has agreed to consult with the husband, the wife and all three children at 10:30am on Friday, 13 July 2007 at the Melbourne Registry.
(16)That the husband and the wife provide a copy of these orders and a copy of the Family Report by Mr [V] dated 23 March 2007 to the Principal of the schools attended by all of the children. The husband and the wife be further at liberty to provide copies of these herein mentioned documents to any other educational and/or health and/or allied health professional assisting them or any one or more of the children from time to time.
(17)The husband and the wife forthwith and within seven days from the making of these orders, submit an Application form to [G Contact Centre] for the purposes of enrolling in:
A.       Supervised visits as set out in sub-paragraph 6A herein; and
B.       The “Parenting Orders Programme”.
For the purposes of this process the husband and the wife shall:
(i)Ensure a copy of these orders and a copy of Mr [V’s] Family Report dated 23 March 2007 is provided with their Application form. Further that a copy of her Honour’s Reasons for Judgment is provided to the Manager/delegate of the Manager of [G Contact Centre] as soon as practicable after their provision;
(ii)Co-operate and attend for any arranged appointment for assessment for suitability for supervised visits and/or the “Parenting Orders Programme” and/or individual counselling sessions;
(iii)Comply with all reasonable rules of [G Contact Centre];
(iv)Comply with all reasonable requests and directions of the Managers, Counsellors and staff of [G Contact Centre], including but not limited to attending all arranged appointments in respect to attending any arranged supervised visits and/or completing the “Parenting Orders Programme” and/or any individual counselling sessions as directed by the Counsellor assisting each parent;
(v)Provide an authority to the Manager and/or delegate of the Manger and/or any Case Worker assisting either of them to have discussions with Ms B, psychologist as to their progress, [the son’s] progress and the matter generally;
(vi)Upon satisfactorily complete the “Parenting Orders Programme”, forthwith provide a copy of the certificate of completion to the other parent.
(18)That the husband and the wife forthwith and within seven days from the making of these orders, contact Ms [B], psychologist, for the purposes of recommencing counselling for [the son]. For the purposes of this process the husband and the wife shall:
A.Ensure a copy of these orders and a copy of Mr [V’s] Family Report dated 23 March 2007 is provided to Ms [B] prior to or at [the son’s] first recommenced appointment. Further that a copy of her Honour’s Reasons for Judgment is provided to Ms [B] as soon as practicable after their provision;
B.Reasonably co-operate and attend for any arranged appointment Ms [B] may make for [the son] and/or themselves;
C.Comply with all reasonable requests of Ms [B];
D.Provide an authority to Ms [B] permitting Ms [B] to have discussions with any Manager and/or delegate of the Manager and/or Case Worker of [G Contact Centre], assisting either of them and/or [the son] as to their progress, [the son’s] progress and the matter generally;
E.The husband and the wife shall be equally responsible for the cost of Ms [B’s] fees, save for any fees incurred by either the husband or the wife for personal individual session(s), ay such fees shall be the sole responsibility of the person attending such sessions(s).
(19)That the husband and the wife provide the other parent with not less than 30 days notice in writing of their intention to relocate to an alternative residence if such new residence is in excess of a 20 km distance from their existing residence. In such written notice the parent must include:
A.the address and amenities of the new premises;
B.details of all such persons who will be residing at the premises; and
C.proposals, if any, if the parent relocating considers some changes will need to be made to these orders due to the move.
(20)That upon the making of these orders, the husband and the wife shall forthwith establish and use a communication journal and record in same for the information of the other parent, issues that are strictly limited to the issues relating to the children’s care and welfare and this journal is to accompany the children between the husband’s and the wife’s residences.
(21)That pursuant to s 65DA(2) and s 62Bof the Family Law Act 1975, 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.
(22)That the period of time in which a party can file a Notice of Appeal against orders made this day be extended to expire one month from the date on which the Reasons for Judgment are published.
(23)Liberty to apply on short notice, and any application be fixed for hearing before Carter J, if practicable.
(24)     That the matter otherwise stand for Judgment.”

Documents Relied Upon

By the Husband

The husband relied on:
·    His own affidavit filed 29 May 2007 (“the husband’s first affidavit”)
·    A further affidavit filed 19 June 2007 (“the husband’s second affidavit”) and
·    His Financial Statement filed 1 May 2007.
The husband’s second affidavit had been filed without leave. It was said to be an updating affidavit but it did contain matters which went beyond that. After hearing submissions I granted leave to the husband to rely on his second affidavit and, as will be seen, also granted leave to the wife to rely upon an affidavit in reply to it.

By the Wife

The wife relied on:
·    Her own affidavit filed 2 May 2007 (“the wife’s first affidavit”)
·    A further affidavit sworn 29 June 2007 and eventually filed 3 July 2007 (“the wife’s second affidavit”). This was the answering affidavit referred to above.
·    Her Financial Statement filed 2 May 2007
·    The affidavit of Ms T filed 2 May 2007. Ms T was cross-examined.
·    The affidavit of Mr R filed 2 May 2007. Mr R was not required for cross-examination.
·    The affidavit of Ms J filed 2 May 2007. Ms J was not required for cross-examination.
·    The affidavit of Ms D filed 2 May 2007. The husband had wished to cross-examine this witness who, at the time of the hearing, was in Tasmania assisting members of her family. Consideration was given to the possibility of enabling this witness to attend by electronic means, however, eventually the husband decided he did not wish to cross-examine her.
·    The affidavit of the wife’s father, filed 2 May 2007. The wife’s father was cross-examined.
·    The affidavit of Ms A filed 2 May 2007. Ms A was cross-examined.
·    The affidavit of Ms L filed 2 May 2007. Ms L was cross-examined.
·    The evidence of Ms S who attended pursuant to a subpoena. Ms S is a teacher at the E Primary School and was the son’s Grade 3 teacher in 2006. Ms S’s evidence was given orally, due to a directive from the Department of Education. She was also cross-examined.

By the Independent Children’s Lawyer

The I C L relied on:
· The Report of Mr V dated 23 March 2007. Mr V is a Family Consultant and he prepared a Family Report pursuant to the order of a Registrar made 25 January 2007. Mr V was cross-examined.

Other Affidavits

· Two affidavits by Dr K has been filed 11 April 2006 and 4 May 2006 respectively. Dr K is a clinical and forensic psychologist who prepared three reports. The first report was dated 9 December 2005 and the second report was erroneously dated 28 February 2005. It was clear from the body of the report that it should have been dated 28 February 2006. Dr K’s first and second reports were both annexed to Dr K’s affidavit filed 11 April 2006. The first report was prepared pursuant to an order of Ramsden JR and the second report was prepared at the request of the parties. Dr K’s third report was dated 28 April 2006 and it was also prepared at the request of the parties. This report is annexed to Dr K’s affidavit filed 4 May 2006.

These proceedings came before Watt J on 26 June 2007, about a week prior to the trial commencing before me. His Honour’s order made at the time includes the following:
“It is noted that
1.The husband, wife and Independent Children’s Lawyer agree that the three reports of Dr [K] are to be received into evidence at the trial of this matter and that Dr [K] is not required for cross-examination.
2.It is further agreed that the letter to Dr [K] from the husband’s former solicitors dated 3 May 2006 and Dr [K’s] response dated 4 May 2006 will be tendered in evidence by consent.”
This was confirmed by all parties when the matter commenced and accordingly Dr K was not required for cross-examination. The two letters referred to were received in evidence and together comprised Exhibit “C2”.
During the hearing documents were tendered which were received in evidence. On occasion reference was made during the hearing to earlier proceedings and where necessary I referred to the relevant part of any such document and in the case of affidavits any other paragraphs which were necessary to give contextual clarity.
I have read Case Summary Documents which were filed as well as written Summaries of Argument.
The husband, as already recorded, appeared as a self-represented litigant. In Re F: Litigants in Person Guidelines (2001) FLC ¶ 93-072 the Full Court considered and revised earlier guidelines which had been given for the assistance of Judges at first instance in cases involving litigants in person.
At the commencement of the case and during the course of the hearing I explained to the husband his rights in presentation of his case, cross-examination and otherwise, when necessary, as to evidence and within those guidelines. I provided to him copies of the relevant sections of the legislation relating to children which were applicable in this case.
It is appropriate to note here that counsel for the wife and the I C L assisted the husband, within the bounds of their obligations to the Court and their respective clients by, for example, assisting him with documents and the like.
As required, the standard of proof I have applied is the civil standard, namely, the balance of probabilities having regard to the particularity and gravity of the matter. Throughout this judgment statements of fact constitute findings of fact made on the basis of the application of that standard of proof, together with my observations of the witnesses.
I have had the benefit of observing the husband and the wife as well as the other witnesses when they gave evidence and were cross-examined. This can be of considerable assistance (see Government Insurance Office of New South Wales v Bailey 27 NSWLR 304 per Kirby J at 313). However, it is appropriate to be cautious in drawing inferences from the demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. (See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Others (1999) 160 ALR 588 commencing at 617.)
I also note the observations of the Full Court in Sanders (1976) FLC ¶ 90-078:
“Restraint is called for when expressing views about parties in custody matters because of the need to have regard to the preservation of the on-going relationship between the parents and the children.”
However, it is also necessary to form an assessment of the character and personality of each of the husband and the wife, the same being necessary for a proper determination of these proceedings. As will be seen, and regrettably, that assessment does not favour the husband.

Assessment of Witnesses

The Wife

The wife’s first affidavit was very lengthy. This is not said as a criticism of her or her legal advisers. There were a great number of events which transpired in the period after separation which were of significance in this case. I raise this matter because when the wife was cross-examined her evidence was consistent and credible. It could be said that there were some minor aspects of exaggeration. For example, the wife said in her first affidavit that when she went to live in the B property “it was empty except for beds and table and chairs. (She) had to purchase a sofa, video, linen, food and pantry items, rugs, all kitchen utensils and cooking items, garden tools and other necessary items.” During cross-examination by the husband she confirmed that in the property at the time there was also a refrigerator, a microwave oven, a TV and some other items. I regarded this as I said as exaggeration or at worst, inaccuracy. I certainly did not view it as an attempt to mislead the Court.
The husband also cross-examined the wife about apparent inconsistencies in her affidavit. In par 32 she described that, following separation, she had “taken up work at the [B] Bakery and the [B] General Store.” In par 387 she said that following separation she “obtained a total of 10 – 12 hours work per week at either the B Bakery and the B General Store.
However, in cross-examination she told the husband that she was employed at the Bakery and had not been employed at any other place. She explained further, however, that the General Store is owned by Ms A, who is a friend of the wife and a witness in this case. Her evidence was that she had been trained there to use the coffee machine and other equipment and on the basis of her friendship with Ms A she had helped at the store but without remuneration. It was clear from her evidence that she distinguished between “working for” someone and being “employed” by someone. I did not regard this as a matter which caused me to doubt the wife’s credibility or reliability.
There was another matter however, where the wife’s evidence differed to a significant degree with another witness, this witness being her father. In the wife’s father’s affidavit he had deposed to having given the wife financial help since separation, by making some payments on her behalf and also by making payments into certain bank accounts.
When the husband cross-examined the wife he asked her how many bank accounts she had in her own name. The wife replied that she had two such accounts, namely a savings account and a Visa Account. When asked whether she owned any other accounts jointly with some person other than the husband, the wife replied in the negative. The husband asked the wife whether money she received from her father was paid into her bank account and her response was that she was not certain whether he had paid moneys directly into her account. She said that he had given her cash and he had also allowed her to draw on his account.
By agreement, the wife’s father was interposed just after the wife had given this evidence. The husband had been fully apprised that this was an unusual circumstance, however, the wife’s mother is in need of constant care and it was important that the wife’s father be away from her for the least possible time. Given that the wife was still being cross-examined, she waited outside the Court whilst her father gave his evidence.
Part of the husband’s cross-examination of the wife’s father concerned the financial help provided to the wife. The wife’s father confirmed that he had transferred money into the wife’s account, the number of which he could not recall. He also said that the account was his and his daughter’s and he had taken the account through his “company”. It transpired that this was a Credit Union account and he explained that it was a requirement that his name be on it as well as that of his daughter. Ms Stewart re-examined the wife’s father about this matter asking him whose name or names appeared on the account. The wife’s father told Ms Stewart that he had two accounts of his own and that “we” had opened a third account which the wife was able to access.
This apparent conflict in the evidence was not explained. It seems to me more likely than not that the wife was mistaken, given that there was absolutely no reason for her to lie about this. It may be simply that she viewed the account as being her father’s account given that it was with his Credit Union. There had been no attempt to hide this account. It was clearly identified in the wife’s father’s affidavit as a “new account” which had been opened the day after separation and it is quite obvious from the husband’s cross-examination that he had access to relevant bank accounts. Accordingly, I do not view this matter as one which detracts from my overall assessment of the wife as being an honest and reliable witness.
The wife gave evidence, both orally and in her affidavits, about a number of incidents, some of which took place in the presence of some of her witnesses. There were at times modest inconsistencies between the various accounts but these were not suggestive of anything other than normal frailties of human memory.
The wife was extremely child-focussed in her evidence. She was insightful and sensitive. She made proper concessions and there was no sense of contrivance in her evidence. She impressed as a person who had the interests of all three children at heart.
The wife was cross-examined thoroughly and properly by counsel on behalf of the I C L. Mrs Hooper described her in her final submissions as “an impressive witness”, a description with which I agree. I also agree with Mrs Hooper that the wife showed real concern for all of the children in trying circumstances.
In her final submissions Ms Stewart drew a contrast between the evidence of the husband and the wife, saying that the wife was “quietly spoken, considerate, and had a fluidity and a logical nature to her thought processes that made it likely that her descriptions of what had transpired were correct”. I agree with that description.

The Husband

In the contrast she drew between the evidence of the husband and the wife, Ms Stewart went on to note that the husband had significant lapses in memory and that there were significant issues which he could not recall precisely. As I pointed out at the time, and as was the case, there were many other occasions when the husband’s memory was faultless.
As the case proceeded it appeared more and more that the husband’s memory lapses coincided with occasions when he perceived himself to be under pressure. In my view, and as I said at the time, the husband’s evidence was quite inconsistent when he spoke about striking the younger daughter. This event, as it transpired, had occurred on 25 June 2007, not long before the trial. The husband’s evidence about having made physical contact with the younger daughter was accompanied by gestures indicating what had happened. Both his words and gestures changed during the course of his evidence.
There was another matter which gave me great concern and not just as to questions of credibility. In his second affidavit the husband described that the son had been prepared to see his mother and to stay with her for a period of four days from 24 May 2007. According to the husband the son was not “happy” with spending a full seven days with his mother and wanted “to try out what his sisters were currently doing”. The husband went on in his affidavit to say that on Monday morning, 21 May 2007 the son, at the request of his father, sent a message to his mother indicating “his wishes and intentions”. It was his further evidence that the wife tried at school that day to persuade the son otherwise, insisting that he come home with her that afternoon. However, “[the son] remained firm and told her again of his wishes to see her that Thursday but not sooner.” The son was reported to have told his father that his mother became angry and threatened him by saying that “if he was not going to come home with her that day, he was not to bother coming at all and that she would not see him until he was older.”
In par 7 of the same affidavit the husband deposed that a few days later the wife sent the son a letter at school confirming her wish not to see her son. The letter in question was annexed as Annexure “FDS4”. The original of the letter was tendered by consent and became Exhibit “C1”. When the original letter and the form of the letter annexed to the husband’s affidavit are compared it can be seen that the last line of the letter has been omitted. The last line of the letter says:
“I’ll see you again very soon.”
Underneath that are three XXX (indicating kisses) and the word “Mum”.
The evidence does not go far enough for me to conclude that the husband deliberately failed to include the last sentence of that letter. However, it must be recalled that the husband’s evidence was that this letter confirmed the wife’s wish not to see the son. The second paragraph of the letter is in the following terms:
“Now, I understand from a phone call I got last night from [T] that you are worried that I won’t ever see you again. That is not true! I love you and will always love you and want to see you. You are never to worry about that.”
I accept the submission of Ms Stewart on behalf of the wife which was to the effect that the husband’s evidence demonstrated a significant lack of ability to synthesise information. In my view, in no possible way could that letter and in particular, the second paragraph of it, support the husband’s contention. Given that the husband annexed the letter to his affidavit and produced the original of it, I am not satisfied to the requisite degree that he wilfully misinterpreted the letter. However, this incident displayed a mindset which became more and more apparent as the case proceeded.
Evidence was given about an attendance by this family upon Dr K in April 2006. I will refer to this in more detail in due course, but for present purposes, it is sufficient to note that the wife’s evidence was that the appointments had been arranged so that the children would be seen by Dr K first and would then spend some time with their father before leaving. Thereafter, there were to be sessions with the husband and wife and Dr K. According to the wife’s evidence and Dr K’s third report, the husband arrived much earlier than the time fixed for his appointment. The husband tendered two documents in support of his contention that he had arrived at the right time and that everybody else, including Dr K, had “got it wrong”.
Exhibit “H2” was a letter from the Practice Manager of Dr K’s practice addressed to the solicitors for both parties. It includes a schedule of times for individual consultations. In that document the husband’s interview was noted as having been appointed for 1 – 1.30pm. The husband’s evidence was that there had been no alteration to those arrangements. He also produced a document which was tendered and became Exhibit “H3”. He described this as setting out the original attendances which had been provided. The document is dated June 23, 2007 but the husband explained that he had received it prior to 20 April 2006 and the date on the document was because he had subsequently printed it out. The appointments noted in Exhibit “H3” included consultation with all three children between 1:00pm and 2:45pm, thereafter consultations for the husband and children from 2.45pm until 3.15pm, with the husband and the wife to be seen subsequently both together and individually. The husband insisted that this was the first arrangement which had been superseded.
During cross-examination Ms Stewart asked the husband about these documents and the dates and times of the appointment. The husband confirmed that he was legally represented at the time and that he had been in constant contact with his solicitors, given that he had not seen the children for some time. He also confirmed that his solicitors had contacted him in respect of the arrangements which had been made with Dr K. Ms Stewart then handed the husband the first page of an email dated 21 April 2006 from Dr K’s Practice Manager to both legal practitioners. It noted, that following consideration of the matter and given that the husband had not had time with the children, the previous schedule had been revised, so that the husband could have an interactional period with the children. The “day plan” which set out the various appointments was attached. The day plan was then shown to the husband. It was identical to Exhibit “H3” save that it was dated April 21, 2006. It was put to the husband that he had been advised by his solicitors that the time of his appointment had been altered, however, the husband said this was not his understanding of the matter. However, he then agreed that the arrangements had been changed. He refused however to concede that he had attended at the wrong time and that his evidence had been incorrect.
In my view, the husband was indeed incorrect. Save for the events that occurred at Dr K’s rooms nothing much turns on this, but it showed a clear example of the husband’s obduracy and insistence that he was “right” and other people “got it wrong”.
The husband was grudging in any concessions he made and clearly found difficulty in making them. He was basically unable to acknowledge that his actions had contributed to the difficulties experienced by all these children, and in particular, the son. Whilst he did say on regrettably few occasions that in hindsight he regretted certain of his actions, he almost invariably proceeded to incorporate the wife as being partly to blame, if not completely so.
In his own evidence the husband was non-responsive, discursive and tangential. It was necessary for questions to be repeated, and sometimes more than once before a meaningful answer was given. He was intent on giving the answer that he wanted to give with scant regard to objections or rulings. This was echoed in his cross-examination of some witnesses in the sense that he was intent on asking the questions that he wanted to ask, and at times without any regard to, or desire to hear, the answers.
The husband pointed frequently to his lack of forensic experience and skill and as a litigant in person he was given many indulgences. To my mind, he abused his situation. I explained to him on a number of occasions relevant procedure, and indeed repeated those explanations at times. I fully understand and have taken into account that he was at times under pressure, or perceived this to be the case, but it is also appropriate to record that the cross-examination he underwent, while extensive, was eminently fair.
The husband was not nearly as child focussed as was the wife. He displayed little insight into the adverse impact of his behaviour upon the children.
Regrettably I have no confidence in the husband’s ability to see matters in any way other than from his own perspective and this lack of objectivity has permeated his evidence to the extent that he cannot be regarded as reliable.
As a generality, I prefer the evidence of other witnesses where it conflicts with the evidence given by the husband.
However, I do not find it appropriate or necessary to make a blanket finding as to credit or reliability. Nor will it be necessary to refer to the totality of the matters raised in the evidence which I have heard throughout this case. The central features of the history which was presented will be dealt with and, where necessary, findings will be made in the context in which differences arise in that evidence.

Commitments of the Parties to Support Themselves and Children

The wife’s Financial Statement is unsatisfactory. She has not detailed her own weekly expenses, save for motor vehicle registration costs, nor has she detailed the amount of the children’s expenses.
The husband’s Financial Statement is also unsatisfactory. The husband included as income, rental for the three units of $256 per week. That rental is, or should be at least, applied towards the Viridian Line of Credit pursuant to the orders made by consent on 10 November 2005. The husband has disclosed mortgage payments and rates and unit levies which total $730 per week, together with “other rates, unit levies” of $53 per week, making a total of $783 per week. However, the periodic mortgage instalments for the units, for the E property and the B property, together with all rates and taxes in respect of those properties were to be paid from the Viridian Line of Credit, again pursuant to the orders of 10 November 2005. The husband also claimed to be making loan repayments of $200 per week for the personal loans from his two friends. He has set out details of insurance premiums; motor vehicle registration; and credit card payments. In all he claimed expenditure of $1,099 per week. He, too, has not disclosed expenses in respect of the children or any other personal expenses of his own.
In those circumstances I cannot take this matter any further save to say that the husband and the wife, of course, have a duty to maintain their children.

Responsibility to Support Any Other Person

This is not relevant in the circumstances of this case.

Eligibility for a Pension, Allowance or Benefit

As noted the wife is in receipt of the Family Allowance. She is not in receipt of a Centrelink benefit, given the quantum of assets. It is safe to infer that the husband would also not be eligible for such a benefit, and for the same reason.

Standard of Living

There is very little evidence as to the standard of living that the husband and the wife enjoyed during their marriage. They certainly acquired quite significant real estate but they also acquired very substantial liabilities. On all the evidence the level of income has not been high.
Following the breakdown of a marriage the earlier standard of living is often not able to be maintained. The important factor to my mind, is that if there is a drop in the standard of living, it should not be borne disproportionately by one party.

The Extent to Which a Party has Contributed to the Income, Earning Capacity, Property and Financial Resources of the Other Party and

The Duration of the Marriage and the Extent to which it has Affected Earning Capacity

As I have already recorded the wife was in employment as an art framer at the time of cohabitation. She ceased employment about a year after the older daughter was born and was not thereafter in employment outside the home until very recently. The wife’s endeavours were directed towards the welfare of the family and in particular, the parties’ children and this enabled the husband to conduct his various endeavours.
This was a long marriage and the roles which the parties agreed they should undertake during it have, to my mind, affected the wife’s earning capacity.

The Need to Protect a Party who Wishes to Continue that Party’s Role as a Parent

The wife wishes to continue in her parenting role. I have already considered the financial consequences, to the extent that there is evidence about this matter. This subparagraph does not give a parent an absolute right of choice in his or her role, however, it is not an unreasonable wish, particularly given the son’s age. However, it is of course but one of the factors to be taken into account.

Discussion

The wife’s obligations in respect of all three children, but in particular the son, will impact upon her earning capacity as I have already noted. Additionally, she has the ongoing care of the children which involve the myriad of matters necessary in respect of their nurture, their upbringing, and their activities. The wife will have the capital commitment of providing accommodation for the children.
In my view, these are the most significant of relevant factors which I have discussed. They are very weighty indeed and they call for an adjustment of 15 per cent in the wife’s favour, making her entitlement 65 per cent of the nett pool of assets as I have determined them. That would increase the wife’s entitlement to $672,518 (rounded) with a consequential reduction to the husband’s entitlement, leaving him with $362,126. The differential therefore, based on the nett pool of assets as I have determined them, is $310,392.

Other Matters

There are remaining matters under s 79(4) which I am required to take into account. The orders which I propose to make will not have any effect upon the earning capacity of either party. I take into account the parenting orders which I have made already and note that some further parenting orders will also be necessarily made. Finally I note that neither the husband nor the wife has made any payment of child support under the Child Support (Assessment) Act 1989. I am not able to determine what child support may be required to be made by the husband in the future.

Is the Result Just and Equitable?

The effect of the orders which I propose will be that the wife will be entitled to an apportionment of $672,518, representing 65 per cent of the nett asset pool as I have determined it. Her entitlement must be reduced by the sum of $105,000 representing the distribution of property already made to her. Her entitlement would therefore be $567,518. The husband will be entitled to 35 per cent of that pool, namely, $362,126. His entitlement also includes notional property comprising a distribution of property already made to him ($105,000); and the two sums of money drawn down on the Viridian account ($24,185). His entitlement therefore becomes $232,941. The “real” differential is therefore $334,577. I am aware that this is a very significant difference. I also note that the husband will be required to pay to the wife the sum of $1,000 as previously discussed. However, it must also be recalled that the husband will retain shares valued at $52,000.
Both parties otherwise will retain the personal property which I have detailed elsewhere, their respective superannuation entitlements, and they will also retain liability for their respective personal debts which have also been detailed. They are substantial.
My conclusion and determination results from what I am satisfied is a proper evaluation of all the relevant matters under s 79(4) including the matters picked up in s 75(2).
The wife wishes to retain the B property and the husband did not oppose this. She would be responsible for any Capital Gains Tax that might accrue in the future. If the wife retains the B property the husband would be obliged to pay her the sum of $94,518 (rounded) ($567,518 minus $473,000).
The husband wishes to retain the E property and at least one of the investment units. He wishes to have effectively the option to acquire the other two units. He saw the opportunity for an income stream to be obtained from the rental of these properties.
The authorities make it clear that the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the nett value of the parties’ assets (see Russell (1999) FLC ¶ 92-877). Ultimately the crucial issue is the real impact of the order in monetary terms. (See JEL v DDF (2001) FLC ¶ 93-075.)
I am satisfied that the order I propose to make is just and equitable in all the circumstances.

Form of Order

As I have already recorded the husband expressed interest in retaining all three units as well as the E property. He had sought a period of 14 days to make enquiries. When the matter was last before me, he did not have sufficient information as to the amount of repayments which would be required on any borrowings, and accordingly, in reality he did not know what he could afford to borrow.
With this in mind, I arranged for my Associate to give the husband notice that, when the Judgment was to be handed down, I would expect him to be able to tell me which real estate he wished to retain and also what borrowings he could afford to make and service.
If he cannot arrange necessary funding, some at least of the units, and perhaps the E property, will have to be sold and the nett proceeds divided between the parties in manner compatible with these Reasons. The sale of any of the investment units would be likely to bring about a liability for Capital Gains Tax.
The husband needs to understand that the wife is to receive the B property free of all encumbrances as well as the two payments which total $95,518 ($94,518 plus $1,000). She is to receive these assets in any event. The husband will also be responsible for the Viridian Line of Credit and all the mortgages. He will have to procure discharges of all those mortgages and the Line of Credit or otherwise procure for the wife releases from the Bank in respect of all these liabilities. Based on the calculations which I have earlier set out the total mortgage liability is $726,473; the Viridian Line of Credit is $74,568; and the debt to S Real Estate is $5,000. Accordingly, the total of these liabilities is $806,041. He would, of course, receive real property with a gross value of $1,131,000 if he received the E property and all three units.
The husband would be allowed some time to obtain the finance. The period of time would be subject to submissions. If he did not comply with such orders there would be default orders, which, subject to submissions, would provide for the E property and all three units to be sold. The wife’s entitlement to the payments which total $95,518 would need to be expressed as a percentage of the nett proceeds of the sale of that real estate. For the purposes of that exercise, setting aside for the moment the costs of sale and Capital Gains Tax liability, the nett proceeds after deduction of the mortgages only would be $404,527. The wife’s entitlement would therefore be 23.6 per cent.
Provision would need to be made for funds to be set aside for Capital Gains Tax liability in respect of the sale of the investments units with any balance to be distributed as to 65 per cent to the wife and 35 per cent to the husband. Subject to that, the wife would get 23.6 per cent of the nett proceeds of sale. The husband would get the balance after payment of the Viridian Line of Credit and the liability to S Real Estate.
The payment to the wife of $95,518, expressed as a percentage of the nett real property to be sold would obviously vary depending on which properties were sold.
It is convenient to note here that on the last day of the hearing I reminded the husband that the wife wished to retain the B property and that I noted his desire to have the E property and Unit 7 (at least). I asked the husband whether, should I determine after my various calculations that he could not afford to keep the E property and Unit 7 or even the E property alone, he saw any attraction in the proposal put on behalf of the wife that she have the B property and that he have Unit 4. The husband acknowledged that he did see attraction in this proposal.
In the event of any sale of real estate being necessary I will provide for the wife to have the conduct of sale. It would be necessary in my view to enable a timely and efficient sale process. Additionally, of course, the wife has solicitors acting for her and the husband does not. In order to facilitate any sale I will also order the husband to execute a power of attorney in favour of the wife which will authorise her to act as his sole attorney for the purpose of any sale.
The husband and the wife will both be restrained, on an interim basis, from further encumbering any of the real properties. I am minded to continue par 8 of the orders made on 10 November 2005 but will hear submissions as to this.
I would remind the husband and the wife that the Independent Children’s Lawyer has been instructed by Legal Aid Victoria to seek costs and that orders were made by consent on 8 May 2006 for them to share Mr Mulvany’s costs equally.
The parties will be given some time to consider these matters as well as the outstanding children’s matters before final orders are pronounced.

I certify that the preceding six hundred and ninety-nine (699) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 12 September 2007

[2007] FamCA 1079

12 September 2007

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