TILTON & TILTON - [2012] FMCAfam 1204

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TILTON & TILTON

[2012] FMCAfam 1204

FAMILY LAW – Children and property – parental responsibility of four children – equal time – substantial and significant time or other – valuation of business interest.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA, 68F, 75, 79

G & C [2006] FamCA 994
Georgeson & Georgeson (1995) FLC ¶92-618
H & H (2003) FLC 93 – 168
Hickey & Hickey v Attorney-General for the Commonwealth of Australia (Intervenor)(2003) FLC ¶93-143
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant:

MS TILTON

Respondent:

MR TILTON

File Number:

MLC 10421 of 2011

Judgment of:

McGuire FM

Hearing dates:

23 & 24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Melbourne

Delivered on:

9 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Brewer

Solicitors for the Applicant:

Rosetta Traficante

Counsel for the Respondent:

Mr Duckett

Solicitors for the Respondent:

Lynette Smyth

ORDERS

Children

That the wife Ms Tilton have sole parental responsibility of the children [W] born [in] 2000, [X] born [in] 2002, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”).
That the children live between their parents on a week-about basis with the changeovers to occur at the conclusion of school on Wednesdays or at 4.30 pm on Wednesdays during school holidays.
That the wife keep the husband advised at all times of the children’s medical practitioners and specialists and that these orders authorise the husband to be provided with all information normally afforded parents.
That the husband comply strictly with instructions provided to him by the wife or any treating medical practitioner on the provision of medications and treatment for the children, or either of them, during any period they are in his care.
That these orders authorise the husband to attend any school events, be provided with all reports and notices, and to receive any information normally afforded parents from any school in which the children or either of them may be enrolled.

Property

That upon the sale of the former matrimonial home the proceeds of sale be discharged as follows:
(a)To payment of any mortgage and the reasonable costs and disbursements of the sale;
(b)As to a sum of $31,000 to be retained in a bank account in trust for the four children of the parties in equal shares with both the husband and the wife as trustees and with the children to each receive their entitlement as determined by the husband and the wife;
(c)Repayment of the loan from the wife’s mother in the sum of $48,000; and
(d)As to the remainder to the husband and the wife so as to give a 50 per cent distribution of the property pool, exclusive of superannuation entitlements, to each of them having taken into account the retention of the assets below.
That within 28 days of these orders the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(a)The 2006 Toyota Prado motor vehicle or its proceeds of sale or successor in the possession of the wife as a value of $25,000;
(b)The part proceeds of sale of the caravan in the sum of $8,000;
(c)All personalty and chattels in the possession of or in the control of the wife as at the date of these orders at an agreed value of $10,000;
(d)The wife’s superannuation entitlement with [C] Superannuation; and
(e)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as of the date of these orders.
That contemporaneously with the transfer orders in paragraph 7 hereof, the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(a)The husband’s interest in [P] at a value of $50,000;
(b)Holden Rodeo motor vehicle at a value of $5,000;
(c)Part proceeds of the caravan in the sum of $8,000;
(d)All personalty and chattels in the possession of or in the control of the husband as at the date of these orders (no value attributed);
(e)The husband’s superannuation entitlements with [T] Superannuation and [B]; and
(f)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as of the date of these orders.
That each party be solely responsible for and indemnify the other in respect of any liability attaching to any of the assets being retained by that party pursuant to these orders.
That each party be solely responsible for and indemnify the other in respect of all liabilities incurred by that party since separation in either joint names or in that party’s name alone.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 10421 of 2011

MS TILTON

Applicant

And

MR TILTON

Respondent

REASONS FOR JUDGMENT

These proceedings involve issues between the parties as to children and property settlement.
The four children of the parties are [W] born [in] 2000 (aged 11 years), [X] born [in] 2002 (aged 10 years), [Y] born [in] 2004 (aged 8 years) and [Z] born [in] 2006 (aged 6 years).
The wife is the applicant. She seeks orders in respect of the children as follows:
(i)     Sole parental responsibility;
(ii)    That the children live with her; and
(iii)     That the children spend each second weekend from Friday afternoon until Sunday evening with the husband together with block periods of time on school holidays when he is not working.
The wife seeks a 5-10 per cent loading in her favour on distribution of the property on account of alleged “wastage” by the husband in walking away from a family [omitted] business at the time of separation of the parties. Alternatively she seeks a sum of $50,000 be added back to the pool of property being the amount paid by the husband to buy into the [omitted] business approximately seven years ago.
The husband proposes that he and the wife have equal shared care of the children on a week-about basis with the changeovers to take place on Wednesday afternoons. He argues that the parents have equal shared parental responsibility for the children.
The husband seeks an equal division of the net property of the parties. Although he may consider making an offer to purchase the former matrimonial home, there is general agreement between the parties that the property be sold and I made orders accordingly at the end of the evidence. The parties have also agreed that a sum of $31,000 from the proceeds of sale of the house be retained in trust by them jointly for the four children of the marriage in equal shares. Again, orders in these terms were made at the conclusion of the evidence.
The husband is 39 years of age. The wife is 38 years old. They commenced cohabitation in 1994 and married [in] 1996. They together purchased their first home in 1995. They separated for six months in 1997 and final separation took place in May 2011.
These proceedings commenced on the wife’s application filed 21 November 2011. On 31 January 2012 consent orders were made inter alia whereby the four children live on a week-about basis between the parents. However, an informal collateral agreement was made on 4 May 2012 seeing the children live with the wife for ten nights and the husband for four nights each fortnight. The husband unilaterally retreated from that arrangement in early August 2012 and the parties reverted to the week-about regime pursuant to the orders.
The parties’ son [X] has proven to be an ordeal for each of them. Although there is doubt as to actual diagnosis, a paediatrician has previously suggested that [X] may suffer from Attention Deficit Hyperactivity Disorder or similar. [X] has exhibited violent behaviour towards each of his parents and at school. The parents’ capacity to deal with [X]’s behaviour has clearly been compromised by their own relationship difficulties together with a lack of communication and cooperation between them. The result is that [X] has spent block periods of time variously with each of his parents. Attempts at discipline have been met with [X] simply going to the other parent. [X] has been trialled at a special school but this arrangement lasted less than a term. This 10 year old is regularly but unpredictably physically and verbally violent towards adults.
The wife is employed as a [omitted]. The husband now works as a [omitted].
The matter is complicated by the living arrangements of each of the parties at least pending the sale of the former matrimonial home. The wife remains in that property. For reasons best known to her she has taken in two adult tenants which causes the children’s living arrangements to vary within the home often with at least one of the children, including the older two, variously sleeping with the wife. The adult tenants seem to occupy the children’s bedrooms on an ad hoc basis as to availability.
The husband’s circumstances are no better. He lives with his own mother, grandmother and sister in a three bedroom home in the same locality as the former matrimonial home. The children’s sleeping arrangements also vary and involve at least one of them, including the 11 year old [W], often sharing a bed with the husband.
The husband leaves for work at around 6.00 am. The care of the children is then left to their grandmother, great grandmother or aunt. [X]’s angst has been exhibited against these women. The wife makes complaint as to the standard of care and hygiene afforded the children in that home. Similarly, the wife’s employment does not allow her to collect the children from or care for them after school or always to take them to school in the mornings. She relies on the husband to collect the children from school given the early end to his working day. Alternatively, she relies on the casual care of the children’s grandmother or great grandmother or, on occasion, the adult tenants in her home.
This matter in a forensic sense was notable in the lack of evidence from any other residents of the parents’ homes. The husband did not adduce evidence from his girlfriend/partner although he anticipates that she will shortly be living in the same home as the children. Neither his mother nor grandmother or sister gave evidence. The adult members of the wife’s household did not provide affidavits. There was no evidence in proper or probative form from any medical practitioners although [X]’s paediatrician, Dr J, was regularly referenced by each of the parties and historical letters from January and May 2011 were tendered into evidence. It seems, however, that neither party thought it necessary to provide recent or updated evidence in respect of [X]’s condition or circumstances for the benefit of the Court although much of the trial was taken up with the parties arguing the nature of [X]’s condition, if any, and the preferred approaches to attending to any such condition. A copy of a neuropsychological report prepared by a Dr N from the [omitted] Hospital in Melbourne dating from December 2010 was tendered into evidence by consent but proved to be of little assistance in the current circumstances.
Similarly, there is also dispute as to the valuation of the husband’s interest in partnership with his brother in the businesses [A] Pty Ltd and [P]. The husband says that the businesses have no goodwill and their value sits only with their limited assets. By implication the wife argues a value for goodwill. The Court is at a loss as to why no valuation was obtained either by each of them or jointly. No evidence was adduced from the husband’s brother.

The evidence

The wife relied on two affidavits filed 21 November 2011 and 2 August 2012 together with her Financial Statement filed 21 November 2011.
The husband also relied on his two affidavits filed 25 January 2012 and 21 August 2012 and a Financial Statement filed 25 January 2012.
The following documents were received as exhibits:
(i)     Letter from Commonwealth Bank to [A] dated 10 August 2011;
(ii)    Confidential neuropsychological report regarding [X] – 21 January 2010;
(iii)     Letter from Dr J regarding [X] dated 31 January 2011
(iv)   Letter from Dr J regarding [X] dated 11 May 2011;
(v)    Notes of meeting at [omitted] School regarding [X] dated 7 June 2012;
(vi)   Valuation of [equipment omitted] – Mr G dated 18 August 2011; and
(vii)   Financial statements and income tax returns regarding [A] Pty Ltd and [P] dated 30 June 2011
The Court also had the benefit of a Family Report dated 27 April 2012 prepared by Ms K. Ms K is a social worker and family therapist. Somewhat surprisingly, she was not required for cross-examination by either party and hence the Family Report was read into evidence without testing.
Ms K’ recommendations are the following (taken directly from her report):
(i)     For the children to primarily live with their mother;
(ii)    For the children to spend 5 nights per fortnight with their father to include Wednesday to Sunday, to also foster and support [W]’s time with her paternal female cousins;
(iii)     In the alternate week for the husband to spend up to three evenings with the children during days that are mutually convenient and prioritise the children’s best interests in terms of him transporting them from school, sharing dinner together and the children being bathed and ready upon their return at the wife’s home by 8.30 pm;
(iv)   For the wife and husband to share all the school holidays, provided the husband has arranged prior leave and is available to care for the children himself;
(v)    For [X] to be referred to [omitted] Child and Adolescent Mental Health Service for further assessment and treatment recommendations;
(vi)   For the children at school to also have available to them their school counsellor;
(vii)    Over time for the children to engage in family counselling with each individual parent at –[omitted];
(viii) For each parent to consider engaging in post parenting separation education programs via Lifeworks;
(ix)   For each parent to also consider engaging specialist parenting education, such as Tuning into Kids and Tuning into Teens via:
[omitted]
(x)    For the wife to seek individual counselling support via a Medicare Mental Health Plan; and
(xi)   For the husband to seek individual counselling support via a Medicare Mental Health Plan.
Nevertheless, Ms K’s recommendations are equivocal and conditional. At paragraph 92 of her report she concludes:
Should the father’s circumstances change however, in terms of: living in a separate and adequate household ensuring the children had their own beds and sense of space; and co-sleeping arrangements ceased enabling the children to create their own separate sense of identity whilst living with their father; including a modified employment situation enabling Mr Tilton to be available for the children each morning; and him promoting a positive relationship between the children and their mother as opposed to an alienating one, then an equal shared parenting arrangement would be viable.
It is noted that, despite no challenge to or testing of the Family Reporter’s observations and recommendations, neither party accepts those recommendations. The wife initially sought a regime whereby the children spend ten nights per fortnight with her and four nights with the husband. As set out above, she had retreated from that position by the end of the evidence to a traditional fortnightly arrangement whereby the children spend each second weekend with the husband. Mr Tilton proposes a week-about regime.

CHILDREN’S MATTERS

The relevant law

Part VII of the Family Law Act 1975 (”the Act”) gives jurisdiction and provides the principles in respect of parenting matters. Section 60CA of the Act mandates that when making a parenting order the Court must regard the best interests of the children as a paramount consideration.
The rationale of the legislation in the sense of its objects and principles are set out in s.60B of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Act[1] provides a rebuttable presumption that parents have “equal shared parental responsibility” for their children meaning all the duties, powers, responsibility and authority which, by law, parents have in relation to children[2]. For practical purposes such responsibility may manifest in decisions in respect of children’s education, medical procedures and the like.
[1] s.61DA of the Act
[2] s.61B of the Act
That presumption is not applicable if there are reasonable grounds for the Court to believe that a parent has engaged in abuse of a child or in family violence.[3] Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to exercise equal shared parental responsibility. [4]
[3] S.61DA(2) of the Act
[4] S.61DA(4) of the Act
In the matter now before me the wife seeks an order for sole parental responsibility for the children in that the presumption be rebutted as being contrary to the children’s best interests. The husband maintains that the presumption of equal shared parental responsibility should remain.
If I do determine it to be in the children’s best interests for the parents to have equal shared parental responsibility then I must follow a strict statutory and intellectual course of consideration. Firstly, there must be a consideration as to whether an order that the children spend equal time living between their parents is both in their best interests and reasonably practicable. If the answer to either of these questions is in the negative then the Court must move to consider whether the children spending “substantial and significant time” with each of the parents is both in their best interests and reasonably practicable.
“Substantial and significant time” is defined in the Act[5] as:
A child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)      days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
[5] s.65DAA (3) of the Act
(b)     the time the child spends with the parent allows the parent to be involved in:
(i)      the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

“Reasonably practicable” is defined broadly in the Act[6] as follows:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
[6] s.65DAA(5) of the Act.
In this matter the husband proposes orders whereby the children spend equal time between the parents. The wife argues for neither equal time nor substantial and significant time. The Family Reporter’s recommendations are in the terms of substantial and significant time.
Consequently, I must determine the children’s best interests both in respect of parenting responsibility and their living arrangements. These best interests are my paramount consideration. In reaching my conclusions I am obliged to reference the statutory considerations set out in s.60CC(2), (3) and (4) of the Act in respect of the proposals of the parties and the probity of evidence before me. Those factors are divided into “primary” and “additional” considerations. There is, however, no hierarchy of the importance within that list and I address each of them as to the evidence and the proposals. I then attribute weight in respect of each. The two primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are then numerous additional considerations to be addressed including:
·    The views of the children as to their living arrangements and the maturity and rationality of such views;
·     the nature of the relationship of the children with each of the parents or any important persons in their lives;
·    The capacity of the parents to attend to the children’s needs;
·    The effect on children of any changes in their circumstance;
·    The willingness and ability of each of the parents to facilitate the children’s relationship with the other parent;
·    Any issues of domestic violence including intervention orders;
·    The attitude of the parents towards the responsibilities of parenthood including their historical acceptance and discharge of those responsibilities; and
·    The practical applications of the proposals sought by each of the parties.

Parental responsibility

Much of the evidence in respect of this important issue revolves around the 10 year old [X]. As mentioned above, I have no current or recent medical evidence or opinion before me as to [X]’s condition. I have no current diagnosis or prognosis. I do have evidence from each of the parents that [X] manifests severe behavioural difficulties. He is violent in his actions and his language. He manifests these difficulties at home and at school.
The parties now disagree as to the preferred method of attending to [X]’s problems. This disagreement serves only to highlight the question as to why there has been no recent medical or psychological intervention for [X]? The husband is adamant in his opinion that [X]’s difficulties be addressed by regular and stringent exercise. Mr Tilton is vigorous in his opposition to medication for [X], and, in particular, the administering of Ritalin. He repeatedly put these strong views during his cross-examination. When challenged as to the basis of his opinion, however, Mr Tilton could not give any sound medical basis but his opposition seemed to be for opposition-sake only.
Mr Tilton’s personality became apparent during his time in the witness box. I expect he is a person not easily swayed from his opinions and whether or not there is good reason or expert opinion to the contrary. That personality is highlighted in a response to the Family Reporter at paragraph 24 of that Family Report as follows:
However expressed his disappointment towards Ms Tilton in terms of even whilst the children spend time with her she aims to maintain and balance a social life in terms of going out with her friends. He also attributed his emotional response to not wanting “total strangers...tell me to see my kids every two weeks”. In addition, stated, “I have been a father for 11 years and I don’t need someone in a chair to tell me when I can see my children”. With response to his emotional needs he reported, “I don’t need to see a counsellor, I know where I’m headed…it’s hard for me…I just want to see my kids, I don’t want to talk with her [the mother]” and thus, emphasised his preference to communicate with her via texting.
Mr Tilton also claimed difficulties in getting the children, and in particular the six and seven year olds, to transit to the wife. He admits to involving and discussing these proceedings with the children. He informed the children soon after separation of his beliefs as to the reason for separation which he claims to be the wife’s infidelity. The result for the oldest child [W] was catastrophic in an emotional sense and involve her seeing a counsellor since.
Mr Tilton seemed unable to separate his own grief from the breakdown of the relationship from his responsibilities for the children. Any prospects of objective and cooperative discussion in respect of the children between he and the wife, or at least emanating from him, appears unlikely in the short term.
The wife now claims to favour medical or psychological intervention for [X]. She is at least open to the prospect. Nevertheless, her own trial affidavit sworn just three days prior to the commencement of the hearing says at paragraphs 18 and 19:
Both the husband and I agree not to medicate [X]. However, the husband does not recognise the Disorders that [X] has and the impact it has on [X]’s daily life.
I have additional concerns for [X], who has been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. [X] in particular, tends to respond positively when there is a structured environment and the rules are clear and non-negotiable.
I stop to note that the evidence does not suggest the wife to have provided [X] with either a structured home environment or clear and non-negotiable rules.
The wife now says she agreed not to medicate [X] only reluctantly and because of pressure from the husband.
I have also had the benefit of seeing and hearing the wife in the witness box. At one stage she was offered the opportunity to speak informally to the husband in respect of [X] during a break in proceedings. She refused that invitation. My observations are that she too would be unlikely to be able or willing to engage objectively with the husband in respect of children’s issues.
Whilst it is not unusual for parties to a marriage breakdown to carry residual animosity and struggle to communicate and cooperate for a period, this matter has unusual and immediately important aspects in respect of [X]’s condition. The Family Reporter recommends that there be an assessment for [X] at a child and adolescent mental health centre. I find some merit in that recommendation. I accept the wife’s evidence that she will be now more accommodating of professional advice in respect of [X]. The husband remains adamant in his rejection of medication and to the extent that he conceded he would have difficulty even in complying with any Court orders involving medication. I am satisfied that such an entrenched and determined viewpoint which extends to acting contrary to medical advice is actually contrary to his child’s best interests and potentially damaging to his health. In all of these circumstances, the lack of cooperation between the parties assumes greater importance in respect of the children’s welfare. Unfortunately, and whilst these two parents have shown some ability to cooperate in matters such as [X] attending the [omitted] School their current state of mutual antagonism leads me to find that it is in the children’s best interests that one or other of them have sole parental responsibility. I am satisfied that the wife presents as the better option in this regard in that she is at least open minded in respect of [X]’s condition and willing to consider the advice of professionals.
I have considered whether I should make a discreet order for the wife to have sole parental responsibility for [X]’s medical matters and for the parties to share parental responsibility otherwise? On reflection, the degree of animosity between these two parents currently is such that a high level of dispute is likely in many scenarios involving the children’s welfare. They both present as single-minded and in many ways lacking objectivity. This is more prevalent in the husband’s demeanour. Consequently, I am of the view that the wife should have sole parental responsibility for the four children. She should however keep the husband informed and, where appropriate, involved in the process and hopefully he will develop an understanding of the need to distinguish the children’s welfare from his own grief and uninformed subjective viewpoints. In coming to this conclusion I have addressed the relevant probative evidence to the considerations under Section 60CC(2), (3) and (4) of the Act.

Children’s living arrangements

The husband maintains that the children should live with him on a week-about basis. When pressed as to his rationale for such an order, he replied that it was “fair”. He continued that he thought that the children also think it “a fair arrangement”. Further, he blames the reluctance of the six and seven year old sons in exiting his motor vehicle to return to the wife on the basis that they had rationalised that the then existing ten day- four day fortnightly regime was “unfair” as opposed to a week-about arrangement. Quite simply, I cannot accept Mr Tilton’s evidence that his six and seven year old children were able to rationalise their living arrangements to this extent. I favour that he has in fact very much involved all of the children in this dispute thereby further compromising their already divided loyalties and their relationships with each of their parents. In this respect Mr Tilton has shown a distinct lack of insight.
Mr Tilton’s proposals for the children’s care and accommodation are vague and uncertain. To the Family Reporter he anticipates sharing a home with another man and that man’s children. In Court he proposed living with his girlfriend. He did not see the need though to adduce evidence from her. I accept, however, that upon sale of the former matrimonial home or a property settlement, he intends to obtain accommodation for himself and the children. The current circumstances for the children in Mr Tilton’s care are far from suitable. They share beds and bedrooms with him and other adults. He leaves for work hours before the children commence school. He suggests that his “employer” (although he is a [occupation omitted]) will be flexible. There is no evidence from the “employer”. Clearly Mr Tilton relies on the assistance of the children’s grandmother, great grandmother and aunt. There is no evidence from any of them.
There is little to give cause for more optimism in the wife’s current circumstances or her proposals. They are equally vague and uncertain. She currently has two adult boarders in her home. The children share beds or bedrooms and with the mother. She has relied on the husband himself substantially to collect the children from school or on the paternal extended family to care for the children after school. The wife’s employment precludes her from collecting them from school. She at times does not return to the home until 6.00 pm. She also relies on the adult boarders to care for the children. These people were not called to give evidence. Alternatively, the wife proposes before school or after school care for the children. On the evidence before me I expect that her preference would be for the children to live with her but to substantially rely on the husband or his family to assist. On this point I note the unusual recommendation of the Family Reporter which would see these children spending up to eight evenings a fortnight with the father.
At the commencement of the trial the wife’s position was that the children live with her ten nights per fortnight and with the husband on four nights. She had retreated by the end of the evidence to a more traditional twelve nights with her and each second weekend with the husband. No full explanation for this change was pursued or given and I am at a loss to understand what had changed empirically or in her mind.
The wife also proposes to obtain alternative accommodation for herself and the children within the same locality after property settlement and sale of the home.
There are obvious difficulties with the proposals and current circumstances of each of the parties. Significantly, it seems that each parent is to a degree reliant upon the other in their proposals.
The Family Reporter makes recommendations as to the children’s living arrangements. I stress that she was not required to be tested on those recommendations. They do, however, leave the Court with some residual concern as to their practical effect, impact, and likely success. Ms K the Family Reporter, at paragraph’s 91 and 92 of her Family Report concludes after noting the current circumstances of the parties as set out above and also commenting on, in particular, the husband’s propensity for “alienating the children from their mother”:
Finally, at this point in time given the extent to which the father is seemingly alienating the children from their mother, including him maintaining employment that requires him to commence early in the morning and whilst living with his mother the writer does not recommend an equal parenting arrangement and for the current parenting arrangement to cease… It is therefore recommended the children spend 5 nights per fortnight with their father, from a Wednesday after school until the following Monday morning, to also coincide with [W]’s needs for share time with paternal female cousins. In the alternate weeks for the father to spend up to 3 evenings per week with the children on days, which are mutually convenient and prioritise the children’s interests and routines. For this to include the father picking the children up from school, sharing dinner together and for him to return them back to their home bathed and ready for bed by the latest, 8.30 pm. For the children to attend after care on the other day...
Should the father’s circumstances change however, in terms of: living in a separate and adequate household ensuring the children had their own beds and sense of space; and co-sleeping arrangements ceased enabling the children to create their own separate sense of identity whilst living with their father; including a modified employment situation enabling Mr Tilton to be available for the children each morning; and him promoting a positive relationship between the children and their mother as opposed to an alienating one, then an equal shared parenting arrangement would be viable.
The Family Report is, of course, simply another piece of evidence, albeit it from a witness holding herself out to have some particular expertise and experience. Neither party sought to test the evidence in this Family Report or the expertise of the Reporter. As such, that evidence is unchallenged and should be afforded weight accordingly. Nevertheless, even on its face, I have some difficulties with the conclusions of this Family Reporter. She appears to conclude and place weight on the fact that the husband is “alienating” the children from their mother. She recognises the pragmatic difficulties of the accommodation provided by the husband to the children and the husband’s work arrangements. However, the recommendation that follows is confusing. At its most basic, the Family Reporter is recommending that the children live with the husband for five nights per fortnight and for a further three nights they are with him from after school until their bed times including the husband to have responsibilities for feeding and bathing them on those nights. The rationale of them returning at 8.30 pm to simply sleep in their mother’s home and, given the mother’s own work commitments, be taken to school the next day by a person other than their mother is unexplained. It seems therefore that the Family Reporter might, in fact, favour an equal time arrangement for the children between their parents should the husband address the following:
(i)     His “alienation” of the children from the wife;
(ii)    His accommodation difficulties; and
(iii)     His employment arrangements.
The issue with these observations and conclusions is that the wife’s circumstances also provide similar difficulties albeit she is not alleged to be alienating the children from the father. Her current accommodation arrangements are little or no better than those provided by the husband. Indeed, the husband provides extended family members to care for the children whilst adult strangers live in the wife’s household. The sleeping arrangements for the children in both homes are less than suitable or appropriate. The wife’s work commitments are such that she cannot take the children to school in the morning or collect them from school in the afternoon. Taking all of these matters into account and given what I find to be the odd and unexplained recommendation for the children to spend five full nights and an extra three evenings in each fortnight with the husband, I have some difficulties in understanding the rationale of the Family Reporter’s conclusions.

Section 60CC factors

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents

The Act itself does not define the term “meaningful relationship”. Brown J in Mazorski & Albright[7] likened the concept to “significant”, “important”, “of consequence” and “valuable to the child”. The Full Court[8] has since agreed with her Honour that the term should be seen in qualitative rather than quantitative terms. That is, the strength, quality and success of a relationship between children and parents is not and should not be defined simply by days and hours spent together but by the quality and benefits of the relationship. Ms K the Family Reporter in this matter, emphasised as much in her Report at paragraph 91 where she says:
Instead the writer’s premise of promoting and enhancing the quality of the family relationships as opposed to the quantity of time spent with one another is paramount. Though the writer recognises the importance of the children fostering and maintaining a strong relationship with their father and broader extended family, the importance of frequent time together, is considered most optimum whilst they primarily live with their mother. This is further aimed at enhancing and promoting a regular, and consistent routine for the children.
[7] [2007] FamCA 520 at [26]
[8] McCall & Clark [2009] FamCAFC 92
Secondly, the authorities make it clear that the enquiry is a “prospective one”[9]. That is, whilst necessarily looking at the current state of the relationships between children and their parents, it is the task of the Court to make orders which benefit those relationships into the future.
[9] G & C [2006] FamCA 994
The evidence suggests that all of the children have a close, bonded and reliant relationship with each parent. This is clearly as a result of the consistent hands-on role played by both parents prior to and since separation.

On the evidence, however, the “meaningfulness” of the children’s future relationships will be dependant upon allowing them to develop individually with their parents and without those parents, and primarily the husband, confusing the children’s relationships with his own residual grievances from the marriage breakdown.

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This consideration does not influence my determination as to the children’s living arrangements although the children do make some reference as to corporal punishment.

Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views

Any weight given to the children’s views and preferences must be seen within the context of their divided loyalties caused by the parent’s own communication and relationship difficulties. The husband says that the children have a preference for a week-about arrangement and react negatively to any other regime. I simply cannot accept a six and seven year old would be able to independently rationalise such a concept. I am satisfied that the children are influenced and involved in these issues. Nevertheless, these children have had the advantage of experiencing both a week-about arrangement between their parents and also a situation where they spend ten nights per fortnight with one parent and four with the other.
The oldest child [W] supports an equal time regime. However, a reading of the Family Report suggests that [W]’s preferences are for stability, routine and privacy. She clearly rejects the involvement imposed on her by each of the parents. The Family Reporter observes at paragraphs 44 and 45 as follows:
[W] further indicated, “why should mum have more time when dad is perfectly capable of looking after us?” She also highlighted additional issues to deal with since the mother’s friend Ms M moved in with them recently. She described the mother awakes even earlier to transport Ms M to the train station in order for her to attend work. She also fears that she and her siblings will feel some level of indirect pressure to behave more appropriately now that the mother’s friend is living with them noting this being a similar experience as the time when Ms Tilton’s “boyfriend” visited them.
Within the father’s household [W] also reported her paternal grandmother sharing a bedroom with the paternal aunty and that in the father’s bedroom is his bed and another single bed which results in one of the children taking it in turns to co-sleep with the father one each of the nights they spend with them. [W] emphasised “I want to keep it [parenting arrangement] 50 – 50 and that there be no changes to this”, though reinforced her wish for her father to “have his own place”.
[X] is also reported by Ms K at paragraph 54 as follows:
Overall, [X] reported the time he spends with each parent is “good enough”…He also suggested his preference to not live with his paternal extended family… Thus, [X] expressed his wish for his father to live in his own home separate to his paternal extended family.
[Y] is just seven years old and any statements by him should be seen within that context. He is noted in the Family Report at paragraph 62 as expressing his sadness and becoming emotional with regard to the parental separation and highlighted that this resulted due to his parents fighting. [Y] expressed a wish to spend more time with the husband during the week and with the wife on school holidays. The rationale for his preferences were generally self-interest and consistent with a child of such young age.
Similarly, [Z] is just six years of age and indicated a wish to live with his father based on “he takes me everywhere”.
I conclude generally from the children’s statements that they have a desire to continue a regular and frequent relationship with each of the parents and show no preference to establish a primary household. Generally, their preferences seem to be to live within family units absent either extended family members or outsiders.

Section 60CC(3)(b) – the nature of the relationship of the children with each of the parents or any other persons

The children are bonded and loyal to each of their parents. Ironically, this loyalty causes conflict and distress in their lives most notably with [W] who has required professional assistance. The Family Report suggests that these children crave time and privacy with each of their mother and father being a situation that is not currently afforded them in either household. The Family Reporter observes that the children struggle with the wife’s guests in her household and also living with the husband’s extended family. Each of the parties, of course, anticipates this situation to be rectified although one wonders as to the insight and motivation of the wife having two house guests who do not contribute to the standard costs of their accommodation such as rent and, on the face of it, cause some aggravation to the children in that household. The older two children are particularly vocal in their criticisms of their households to the Family Reporter.

Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

I find that both parents are culpable in respect of this consideration. They each seriously lack insight into the needs of their children. I am satisfied that the husband involves the children in these proceedings and issues between he and the wife. He directly and indirectly attempts to influence the children. Notably his evidence in respect of the six and seven year olds being unable to transit to their mother is simply incredible and highlights his failings as a parent. However, the wife is similarly culpable.
Ms K reports [W] as follows[10]:
[W] reported prior to the parental separation her “parents argued too much” and described that they “fought over the colour of the house, which is silly”. She also stated, “everyone’s counting on me” and “mum passes mail to the father” via her from the solicitors and suggested, “why can’t she just give it to him”. She indicated the parents do not communicate with one another and that they can’t even look at each other, stating feeling “pissed off” that she was supplied a mobile phone in order to be the messenger and the go between the parents. In addition, [W] indicated that mother has used her phone to text the father given the poor parental communication.
[10] Family Report of Ms K dated 27 April 2012 at paragraph 41
Given that the concepts of “facilitating and encouraging” would normally involve skills in communication, cooperation, respect and insight, neither of these parents have yet shown such traits. Similarly, each has allowed [X] to be the author of his own living arrangements depending upon his mood and preferences at the time. More recently, the husband has simply reneged from an arrangement agreed between the parties whereby the children were living primarily with the wife and spending four nights per fortnight with him. I am also satisfied that he over held the children during a recent school holiday period and without good reason.
On all of the evidence I am satisfied that a strict regime must be imposed by the Court in respect of these children’s living arrangements. I am of the view that it is not so much the configuration of the regime which is important for these children as opposed to certainty and adherence by the parents. To say that they must cease involving their children in these arrangements is an understatement and failure to do so will inevitably result in a repetition for the other children of [W]’s recent difficulties.

Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living

These children do not want to separate from either of their parents. I am satisfied that they want to maximise their time with each parent. They show no preference to live primarily with one parent over the other. Their criticisms are levelled at the standard and form of accommodation afforded by each parent. The changes that must happen are in respect of insight by both these parents into the needs of the children to have some privacy in their relationship with the parents and own space and security within their household or households.

Section 60CC(3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis

This is not an issue that weighs heavily on my determination. Although evidence in proper form is scant, I can conclude that each of the parents anticipates remaining in the same general locality and the children continuing at their current schools.

Section 60CC(3)(f) – the capacity of each of the children’s parents, and any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs

On the evidence before me, each of these parents is compromised in their capacity to prioritise the children’s needs and to attend to those needs. Neither has been able to provide suitable accommodation for the children since separation. The wife fails to recognise the impact on the children of having guests living in her home. The children have reacted against the circumstances of the husband living with his relatives although I accept that there may be some financial constraints and that this transitory situation will continue only until such time as the former matrimonial home is sold.
The difficulties in respect of the capacity of each of these parents is in their lack of insight and understanding. Each of the parents has reacted negatively to the marriage breakdown. Their own grief or bitterness continues to dominate their lives to the exclusion of the children’s needs. Both parents are in employment. They each anticipate some settling in their own lives upon the sale of the former matrimonial home. The fear, however, is that their current attitude will continue and prevail and to their children’s detriment. On the other hand, however, each of the parent’s has shown a willingness, if not ability, to attend to their children’s needs when they arise. They have attempted to address [X]’s difficulties by a change of school. They have attempted to negotiate regimes for time for the children with each of them. Inevitably, however, these attempts have been overborne by their personal considerations and limitations.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

This consideration is not relevant to my determination.

Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This consideration is not relevant to my determination.

Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

My comments on the evidence set out above are sufficient to reference my concerns as to the attitude of each of the parents in this matter. Their dealing with the breakdown of the marriage has influenced their thinking and has been prioritised over their children’s needs. The involvement of the children in these issues by each of the parents is reprehensible. By allowing [X] to dominate each household and effectively determine his own living arrangements is naive and contrary to the child’s short and long term interests and welfare.

Section 60CC(3)(j) – any family violence involving the children or
a member of the children’s family; and Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family

The children alleged that corporal punishment is used as a form of discipline by each of the parents. The children, particularly [X], raise this matter in a relative sense between the parent’s homes with the Family Reporter in respect of their preferences. There are no indications, however, that corporal punishment has reached a stage of being out of control in either household and appears to have been a continuation of a joint agreement of the parties as a disciplinary method imposed during their relationship.

Section 60CC (4) – The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the children’s parents:

(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long-term issues in relation to the child

Each of the parties have been involved parents in this sense. The husband should not be criticised for missing some of [X]’s recent school meetings due to his own work commitments. Despite their numerous other recent failings, these parents cannot be accused of being neglectful of their broad obligations in respect of these four children.

Discussion and conclusions

It remains for me to determine whether these four children live on a week-about arrangement or, as argued by the wife, they live in the traditional regime of being in her primary care and spending each second weekend and some school holiday time with the husband or some other configuration of their time between their parents?
These Courts have regularly observed that shared care arrangements benefit by a high level of communication and cooperation between parents. Ideally there should be consistency of parenting values. There should be a capacity in both parents to objectively and jointly problem-solve. They should commit to sheltering the children from any parental conflict. I refer to the assistance given in the Act in defining the concept of “reasonable practicability”. Further, her Honour Federal Magistrate Ryan (as she then was) in H & H[11] and before the more recent insertions in the Act, summarised the considerations to address before a Court might make an order for shared care. At paragraph 47 of the judgment, her Honour said:
[11] (2003) FLC 93 - 168
Drawing then from the case law the factors that the Court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·    The parties’ capacity to communicate on matters relevant to the child’s welfare;
·    The physical proximity of the two households;
·    Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·    The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment;
·    Whether the parties’ agree or disagree on matters relevant to the child’s day-to-day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern;
·    Where they disagree on these matters the likelihood that the would be able to reach a reasonable compromise;
·    Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities;
·    Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·    Whether or not the parties respect the other party as a parent;
·    The child's wishes and the factors that influence those wishes;
·    Where siblings live; and
·    The child's age.
At paragraph 48 her Honour continues:
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2).
Amendments to the Act since her Honour’s decision repeal s,68F(2) and effectively replace it with s.60CC which sets out the considerations the Court is obliged to make in determining the ultimate question being as to what orders would be in a child’s best interests.
In this matter there are a number of factors that argue against equal time for these children between their parents. Such considerations include:
·The current lack of communication between the parents;
·A lack of consistency in their parenting models evidenced by, for example, different bed times for the children in each home;
·The inability to agree on important long term welfare issues such as a preferred approach to deal with [X]’s difficulties; and
·The recent propensity of each of the parties to denigrate the other and involve the children in the decision making process as to their living arrangements.
However, on reflection, there are some factors that weigh towards an equal time arrangement or, alternatively, one of substantial and significant with each parent. They include:
·The parents live in relatively close proximity and on the evidence they hope to continue to do so;
·The children’s views generally are towards a preference for equal time with each of their parents although, of course, I must factor in any pressure and influence they have been placed under in stating such preferences. These views should be seen against a background of these children having already experienced an equal time regime and other configurations of their time as well as experiencing the difficulties their parents have had in problem-solving, communicating, and isolating them from parental conflict;
·The parties have previously been able to agree an equal-time arrangement and also a substantial and significant time regime. The wife says that equal time “was not working”. She says that there was increased conflict between the parents. She said the children would return to her tired from the different sleeping arrangements in the husband’s home. I must, however, take into account the evidence now before me in respect of the wife’s own household and the children’s less than settled or ideal sleeping arrangements;
·Neither of the parties can currently provide optimum or even preferred living arrangements for the children. I expect that the husband’s reliance on living with his mother and grandmother is partially out of necessity given that the wife has remained in the former matrimonial home and it has not yet been sold. The reasoning behind the wife inviting two adult strangers to live in the home escapes me particularly given that she does not charge these people formal rent and that they disrupt the children’s own enjoyment of their home and facilities;
·The Family Reporter appears, on my reading, to anticipate an equal time arrangement should the husband address some of his personality and parenting difficulties. Specifically he is to cease “alienation” of the children from the wife. He is to make suitable arrangements for his care of the children in respect of his employment. He is to obtain suitable accommodation. In any event the husband’s failings would be as apparent and relevant in a substantial and significant time arrangement of eight days with the wife and five with the husband as recommended by the Family Reporter as they would be in an equal shared time regime;
·Each of the parents appears to have the general capacity, subject to issues for both of them with accommodation, to attend to the children’s physical and educational needs. The evidence is that they have both done so previously. They are both very devoted parents – sometimes to a fault; and
·I am obliged under the Act to consider making orders which are less likely to return these parents to litigation. Whilst it is certainly not a situation where a parent can be rewarded by an equal time order simply because to do so might end their poor behaviour or parenting, I must look at all of the options available to me and consider whether further litigation is a reasonable likelihood.

In this matter I am firmly of the view that each parent is compromised and culpable in respect of their attitudes to their parenting responsibilities. I expect, however, that these failings are in part circumstantial. Each parent expects to re-establish themselves in permanent accommodation upon the sale of the former matrimonial home. Undoubtedly, the interim arrangements have proven difficult; a situation compounded by a communication breakdown or perhaps the communication breakdown is compounded by the difficult transitory arrangements each must endure until the home sells. There is evidence, however, that these parents have previously been able to communicate and agree some issues in respect of their children post-separation. I am asked to make orders whereby they attend a post-separation parenting course. I am hopeful that some objective enlightenment will be forthcoming. To put it simply, these two parents need to separate their own issues and differences from their children’s interests and welfare. They need to remove the children from the dispute and allow the children a seamless transition between the households.
The Family Reporter identifies both parents as having a strong connection with each of the children.[12] It is clear that there have been and are different styles and emphases in each parent’s relationship with the children. For instance, at paragraph 81 of her Report Ms K says:
Given the significant period of time [X] spends with his father due to him often fleeing from one parental household to the other this also represents Mr Tilton being in a critical role in facilitating the development of the child into manhood, thus emphasising the importance of modelling a positive role model for [X], but also for the other male children. This may also be an opportunity for him to engage in healing for himself in terms of his own grief and loss process, following his separation but also in terms of the death of his own father.
[12] Family Report of Ms K dated 27 April 2012 at paragraph 80
In a negative sense, neither of the older two children have indicated to the Family Reporter that they have a definite preference to live with one parent as against the other. Whilst they both recognise difficulties and relativities between the parents, they do not appear averse at this stage to a situation of parallel parenting as distinct from cooperative parenting although [W] makes it clear that co-operation between her parents is something she much desires. I give little weight to any stated preferences of the younger children due to their ages and embroilment in the parent’s dispute.
For all of these reasons, I find it difficult to understand and reconcile the primary recommendations of the Family Reporter that the children live nine nights per fortnight with the wife and five nights with the husband. Such is, of course, a shared care arrangement albeit not equally but still one whereby the obligations of providing for the physical, emotional and intellectual needs of the children are necessary and must be discharged with a requirement for at least the most basic levels of communication and cooperation. It seems to me that all of the difficulties currently manifested will continue with such a regime together with an additional factor of disappointment or grievance on the part of the husband and the older children. There would then be added the odd situation of the children spending an extra three nights in the other week from after school until bed time with the father and returning to the mother’s home just to sleep. Similarly, the wife’s initial position of ten nights per fortnight with her and four with the husband brings with it the same difficulties and her retreat late in the trial might show an admirable new insight by her or equally may have been opportunistic?
On reflection I am of the view that a combination of the wife having sole parental responsibility for these children, orders requiring strict compliance in respect of health matters by the husband, a detailed demarcation of living arrangements for the children, together with an order for a post-separation course for both parents, and injunctive orders in respect of involving the children in parental disputes, can together serve to highlight the good traits of these parents that have been recognised in the Family Report and apparent to me in their evidence in Court. Each of these parents has been successfully involved in the children’s day-to-day lives. Each parent can therefore potentially benefit the children. Each of them though has been culpable in their failings and lack of insight. The best interpretation of the children’s views is that they favour an equal time regime. I accept that there are a number of factors that contra-indicate the immediate success of such a regime. There are however equally a number of weighty positive indicators. This may mean these children enduring a period of parallel parenting, which has been the case, until these two adults achieve the insight of their oldest daughter and learn to co-operatively parent.
Whilst it is a given that communication and the provision of routine must improve, I am satisfied that the best interests of these children are served by there being the unusual recipe of the mother having sole parental responsibility but the children living in a week-about arrangement between the parents..

Property

There is now a well established multi-step process that the Court is to undertake in arriving at a just and equitable division of property. That is a process of four inter-related steps.[13] Firstly I am to identify and attribute value to the assets, resources and liabilities of the parties or either of them. The general rule is that I do so as of the date of the hearing. For these purposes, superannuation is to be treated as “property” although usually not immediately available to the parties.
[13] Hickey & Hickey v Attorney-General for the Commonwealth of Australia (Intervenor)(2003) FLC ¶93-143
Secondly, I am to consider the contributions by and on behalf of each of the parties, directly and indirectly, including any role of parent and homemaker, to the acquisition, maintenance and improvement of the property. The Act at ss.79 (4)(a), (b), and (c) provides the legislative framework for this consideration.
Thirdly I am to address the relevant considerations set out in ss.79 (4)(d), (e), (f) and (g) including the numerous matters referred to in s.75(2) of the Act insofar as they are relevant to the evidence before me. In doing so I attribute weight and determine whether there should be any adjustment between the parties after consideration of contributions.
Fourthly, after considering contributions and the other factors, I must stand back and consider the proposed orders as to whether they are just and equitable in all of the circumstances of the case. It is the justice and equity of the proposed orders that is relevant.[14]
[14] s.79(2) of the Act
The parties agree that the former matrimonial home is to be sold. The parties agreed consent orders in this regard some months ago. I have made more detailed consequential orders at the trial.
They each agree that a sum of $31,000 from the proceeds of sale be held on trust in equal shares. They agree a loan from the wife’s mother of $48,000 be repaid. There was no argument that they not be joint trustees of these monies although the irony of this being the case given my orders for sole parental responsibility in the wife is not lost on me. Rather I see this as an example of the ways that these basically good intentioned parents are at times able to cooperate.
Within a short time of separation the husband walked away from the [omitted] business that he ran with his brother. The remaining issues between the parties arise from that situation and are as follows:
(i) The only tangible asset of value of the business and/or the company is [equipment omitted] the valuation of which is in dispute; and
(ii) The wife argues for an adjustment of 5-10 percent in her favour on account of “wastage” by the husband in that he paid $50,000 to buy into the business some seven years ago and after being an employee for seven years. However, shortly after the parties’ separation, he walked away without apparently seeking any payment from his brother or having the business valued. The implication by the wife is that he may perhaps return to and benefit from the business after these proceedings. I note, however, the evidence that his current earnings as a [omitted] are roughly in the vicinity of those that he drew from the partnership or was paid by the company thereby perhaps negating any such motivation.
The structure of this family business is a little confusing. There is a company known as “[A] Pty Ltd” which hired equipment and labour from a business known as [P]. The husband’s brother is the sole shareholder and director. The husband however operated in partnership with his brother in the business “[P]”. They were joint shareholders. I presume for all intents and purposes that the brothers were generally in partnership in that the two brothers were the joint operators of a [omitted] business with the dual structure being of some accounting significance only.
I have before me in evidence a valuation by [omitted] Pty Ltd of [equipment omitted] at $250,000 - $310,000. The valuer was not required for cross-examination. Similarly, the husband’s brother was not called to give evidence. I have before me also a letter from the Commonwealth Bank dated 10 August 2011 showing a loan liability secured by the pump in a sum of $287,132.97. Given the range of value of the item, I am not satisfied that there is any current equity in the [equipment omitted] and hence in the company on an assets-at-value basis.
Whilst I have no formal valuation of the husband’s business interests, I am not precluded from attributing a value on the evidence before me in the sense that there are no fixed rules or methods for a Court to arrive at a valuation in family law proceedings.[15]
[15] Georgeson & Georgeson (1995) FLC ¶92-618
I note that the business is essentially a family one and had been operated by the husband and his brother with some assistance from sub-contractors when needed. The husband worked in the business for seven years before electing to buy-in. He did so at cost of $50,000. Although no valuation at the time of purchase of his interest was before me, I assume that the husband did so being satisfied as to the value of his interest at that time. There is no evidence of him purchasing an interest in plant and equipment as distinct from goodwill noting that the [equipment omitted] is dealt with separately. The husband walked away from the business at around the time of separation and blamed issues of his own emotional health as being the prime reason for doing so. There is no valuation of the business, as distinct from its major asset, as at the time of the dissolving of the partnership. The husband made a fleeting reference to a decline in work but I place little weight on this unsubstantiated, unparticularised, uncorroborated evidence within the circumstances of him leaving the business whilst there is evidence that the business provided the husband with a continuing income over a number of years and the brother continues to operate the businesses. Taking all these matters into account, I am satisfied that a value of $50,000 should be allocated to the husband’s interest in the business. There is no evidence before me that he is even now precluded from pursuing his entitlement and recourse from his brother or continuing the partnership. As such, I think it proper that a sum of $50,000 be added-back to the property pool and I find it to compromise of the following:

Assets	Value
Property at [address omitted], Victoria	E$900,000
Wife’s 2006 Toyota Prado motor vehicle (traded)	$25,000
Husband’s 2005 Holden Rodeo motor vehicle (taking into account the cost of repairs)	$5,000
Wife’s furniture and contents	$10,000
Wife’s part proceeds of sale of caravan	$8,000
Husband’s part proceeds of sale of caravan	$8,000
Husband’s interest in [P]	$50,000
Total Assets	$1,006,000
Liabilities	Value
Loan from wife’s mother	$48,000
National Australia Bank housing loan	$366,900
Total Liabilities	$414,900
Superannuation	Value
Wife – [C] Superannuation	$45,000
Husband – [T] Superannuation	$50,000
Husband – [B] Superannuation	$17,591
Total superannuation	$112,591
Total property pool	$703,691

The parties agree that their contributions have been equal. There is no evidence to the contrary. Given my orders in respect of the children’s living arrangements and with both parties working and having roughly equivalent incomes there will be no further adjustment pursuant to Section 79(4)(e) of the Act.
The wife’s Counsel in his final submissions conceded that there was “no significant difference in their superannuation entitlements”. Importantly, neither party has substantial current superannuation entitlements within the context of the total property pool. Neither party will realistically receive their entitlement in the near future. This is not a matter in which I believe it proper to make a splitting order. I prefer that each party simply retain his and her superannuation entitlements.
I will order that the assets of the parties as crystallised after the sale of the house and providing for the preservation of $31,000 for the children and payment of liabilities set out above be divided as to 50 per cent to the husband and 50 per cent to the wife. The then net proceeds of sale will be divided according to the husband retaining the following at the values as set out above:
(i)     2005 Holden Rodeo motor vehicle - $5,000;
(ii)    Half proceeds of sale of caravan - $8,000; and
(iii)     Business interest at value - $50,000.
The wife will retain the following:
(i)     2006 Toyota Prado motor vehicle - $25,000;
(ii)    Furniture and contents - $10,000; and
(iii)     Half proceeds of sale of caravan - $8,000.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of McGuire FM

Date: 9 November 2012