WALKER & MORTON

[2016] FamCA 460

FAMILY COURT OF AUSTRALIA

WALKER & MORTON [2016] FamCA 460

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Where there are two children of the marriage – Where the Court orders the parents have equal shared parental responsibility – Where the Court orders the children live with each parent on a week about basis

FAMILY LAW – PROPERTY – Settlement in relation to de facto relationship – Where principal asset of the parties is the former matrimonial home – Where the Court orders the sale of the former matrimonial home – Where the Court found s 90SF(3) factors in favour of the mother – Where the mother receives 75 per cent and the father receives 25 per cent of the net value of the property

Family Law Act 1975 (Cth) ss 60CC(3), 90SF(3)
Limitation Act 1969 (NSW)

APPLICANT:

Ms Walker

RESPONDENT: Mr Morton

FILE NUMBER: SYC 1793 of 2012

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2, 3 and 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

Orders

IT IS ORDERED

1. That the parents have equal shared parental responsibility for the children B born … 2004 and C born … 2006 (“the children”).

2. That during school terms, the children live with each parent on a week about basis with changeover to occur at the conclusion of school on Monday or 3pm if Monday is not a school day.

3. That in the event that the Easter public holidays do not form part of school holidays, then the children will spend those days with the mother in odd numbered years and with the father in even numbered years.

4. That the children and the parents be at liberty to telephone each other at any reasonable time and, notwithstanding any other communication, each parent shall ensure that the children speak to the other parent on Tuesday and Saturday evenings.

5. That neither parent enrol the children in any extra-curricular activity, or remove the children from any such activity without the consent of the other, provided that in the event that a parent is notified by email of a proposed activity, and does not respond within seven days, the parent will be deemed to have given consent.

6. That the mother forthwith pay to the father the sum of $10,000.

7. That within 21 days of the payment referred to in Order 6, the father vacate the property known as 1 D Street, Suburb E (“the property”) and thereafter that the mother have sole occupation of the property.

8. That the mother have the carriage of the sale of the property.

9. That the mother do all acts and things required to effect the sale of the property and to distribute the proceeds of sale in the following manner and priority:

   (a)       In payment of any registered mortgages.

   (b)       In payment of the legal costs of sale and agent’s commission and agent’s costs of sale.

   (c)       In re-imbursement of any sum spent by the mother in preparing the property for sale and payments required to be made to the agent.

   (d)       In payment of 75 per cent of the balance remaining to the mother.

   (e)       In payment of $10,000 to the mother.

   (f)       In payment of the balance to the father.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1793 of 2012

Ms Walker

Applicant

And

Mr Morton

Respondent

REASONS FOR JUDGMENT

1. Ms Walker (“the mother”) and Mr Morton (“the father”) are the parents of two children, B (“B”) born in 2004 and C (“C”) born in 2006.

2. The children have lived in a week about arrangement since about September 2010.

3. The husband and the wife met in 1997. There is a dispute about the commencement of their de facto relationship, the mother alleging that their co-habitation commenced in 2002 and the father that it commenced in 1999.

4. The mother works as a technician and the father is self-employed.

5. In the course of their relationship they purchased two properties. In May 2002, they bought 2 D Street, Suburb E (“2 D Street”) for $490,000. There is a dispute about the source of the funds.

6. That property was sold in 2006 and the parties received a net amount of approximately $133,000 which was applied to the purchase of 1 D Street, Suburb E (“the home”) in the name of the mother. There is a dispute about the source of the balance of the purchase price.

7. After the parties separated in April 2010, the father remained in the home with the children and the mother lived with her parents. By September 2010, they had agreed on a week about arrangement for the children which has continued.

8. The mother now seeks orders which would have the children live primarily with her and the father seeks a continuation of the current arrangement.

9. They each ask the Court to make orders for property settlement. The mother seeks orders that she retain the home and that the father retain his personal assets. The father sought the sale of the home and the payment of $400,000 to the mother and the balance to him. That position was modified in submissions.

PARENTING

1. The mother sought orders that the children live with the father from Thursday after school until Sunday evening in each alternate weekend.

2. The father sought orders that the week about arrangement be retained.

3. They each sought orders about ancillary matters.

4. In cross-examination, the mother’s position in relation to weekend time with the father changed in that she agreed that it was preferable for him to return the children to school on Monday morning to avoid face to face contact between them on changeover.

5. In the course of the trial, they were able to resolve almost all of the ancillary matters except for how the children should spend Easter if it did not fall in a school holiday period. There was also a slight disagreement about telephone contact.

6. At the end of the trial the mother sought to amend her application and ask the Court to make an order that she have sole parental responsibility for the children. The father maintained that parental responsibility should be equally shared.

7. By the end of submissions it appeared that there was no real dispute about either Easter or telephone contact.

8. The Court was assisted by a Family Report from a Family Consultant, Mr F which was prepared in December 2015 and by a Child Responsive Program Memorandum prepared by another Family Consultant, Ms G after interviews with the parties and the children in November and December 2013.

THE CHILD RESPONSIVE PROGRAM MEMORANDUM

1. The Memorandum provides a convenient snap shot of the family at the end of 2013 when they had been living with the shared care arrangement for nearly three years.

2. The father then, as now, wanted the week about arrangement to continue.

3. The mother formally sought orders that the children live with her and spend alternate weekends from Thursday to Monday with the father. However, she told Ms G that, ideally, the children would remain living in a week about arrangement and continue to attend their schools. She said that she sought to change the arrangement only if she and the father are unable to remain living in reasonable proximity to each other and the children’s schools.

4. B (then aged nine years) told Ms G that he liked the week about arrangement, although he missed each parent, but particularly his mother, in the week he is in the care of the other parent. B wanted the arrangement to stay as it was.

5. B recalled his parents fighting before they separated and spoke of witnessing some family violence. Ms G noted that parental conflict did not seem to be of major concern to B.

6. C (then aged seven years) described the week about arrangement positively and wanted to remain living that way. Ms G commented that C seemed to be accustomed to the arrangement as she had lived that way for as long as she could remember. C identified good and secure relationships with both parents.

7. Ms G commented that C did not appear to be preoccupied with concern about parental conflict but that C, if she had to give one piece of advice, would tell her parents not to fight with each other as it upsets her.

8. Both parents admitted to Ms G that their relationship is somewhat volatile.

9. Ms G concluded that:

   The children appear to be happy and accustomed to living in an equal time arrangement. It may be distressing for them to change an arrangement in which they spend significantly less time with either parent and so, ideally, the children would remain living in an equal time arrangement.

10. Whatever may have been the complaints that each parent made against the other in the period prior to December 2013, they each agreed that the week about arrangement was in the best interests of the children.

SUBSTANCE ABUSE AND FAMILY VIOLENCE

1. The father deposed to concerns, after the mother was retrenched from her employment in 2008, that she was using illicit drugs, including but not limited to, “Ice”. Those concerns continued until the parties separated in April 2010. He deposed that substance abuse affected the mother’s ability to care for the children however this did not prevent him from travelling overseas for work for five to ten days at a time. The father deposed that he later discovered that, during his absences from the home, the mother was not ensuring that B attended school. B had 15 days absent from school in 2009 and 2010, largely coinciding with the father’s work trips.

2. The father also deposed to angry and aggressive behaviour on the part of the mother including yelling, pushing, shoving him and grabbing and pushing the children, when she was angry or irritated.

3. After separation, the father continued to have concerns about the mother’s drug use. He insisted that the mother’s time with the children be supervised. The mother alleged that the father was also using drugs. The father denied the allegation although he admitted that while the parties were living together he had used cocaine with friends but not in the presence of the children.

4. The counsellor whom the parties were consulting recommended that they both have periodic drug testing over three months. They did so and both returned negative results. It was after the testing that the parties agreed on the week about arrangement.

5. The mother was banned from driving for a year from 7 August 2013 when she was driving affected by alcohol. The children were not with her.

6. Since the commencement of the week about arrangement, neither parent has alleged substance abuse.

7. At the commencement of the trial, both counsel opened in the basis that the prior history and allegations of drug abuse and family violence should be disregarded. Both parents proposed that the children should spend substantial periods of time in the care of the other, including block periods of up to three weeks in school holidays. Sensibly, each conceded that, whatever had occurred in the past, there were now no concerns that could have any impact on the present consideration of the children’s best interests.

WHAT PARENTING ARRANGEMENT SHOULD BE MADE?

1. Both parents conceded that the children had a good relationship with each parent and that it was appropriate, and indeed necessary, that they continue to have a meaningful relationship with each parent.

2. It was the mother’s case that the children needed to be protected from psychological harm caused by the father’s attitude towards her and his refusal to respectfully communicate with her.

3. In her Case Outline document the mother’s concerns were stated as:

   (a)Significant concerns about the parties’ relationship, capacity to trust one another, capacity to communicate in the interests of the children;

   (b)Misgivings about the father’s parenting capacity arising out of the living conditions in his home (and the impact on the children), his attention to the children’s day to day needs (nutrition, homework);

   (c)An increase in the aggressiveness of his dealings with the mother and the children’s exposure to same;

   (d)Concerns about the practical difficulties occasioned by the sale of the home and the father’s full-time employment;

   (e)The significant relationships the children have with the maternal family and their close weekly involvement with the children.

4. The mother’s concerns, as set out above, will be addressed in the context of the evaluation of the factors in s 60CC(3).

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

1. Mr F reported:

   [B] describes having equally positive relationships with both of his parents (‘I like them equally’) and used the same words (‘good, nice, happy and funny’) to describe them. He said that he did not feel any pressure to favour one parent over the other in the family report interview but said, ‘I feel caught in the middle of Mum and Dad’. B explained that both parents, at times, use him as an intermediary to make, confirm or change plans. [B] said that he feels comfortable being able to contact either parent from the other parent’s home.

   [B] did not raise any significant concerns about not being able to go to extra-curricular activities or events during the week that he lives with his father. However, [B] believes that his father is less likely than is his mother to allow him and [C] to attend an event if it occurs during [the father’s] week. Apart from saying that he and [C] ‘sometimes forget to do homework’ during their father’s week, [B] did not appear to be upset or anxious about this issue.

   [B] is aware of his mother’s proposal to alter the week about arrangements into a ‘nine:five’ split between her and his father respectively. Although [B] says that he thinks this would be ‘good’, he was unable to provide any reasons why he thought so. Contradictorily, [B] said that he wants to keep the ‘current arrangement the same’. [B] believes that his parents are happier now they are not living together. He said that he does not get worried when his parents come into direct contact with each other because it happens so rarely. [B] wishes that his parents could ‘like each or at least [be] friendly to each other’.

2. In relation to the proposition of a 9:5 split which was discussed with B, I note that that proposal was withdrawn by the mother who at the commencement of the trial proposed that the children spend three nights each fortnight with the father and amended that to four nights in cross-examination. Mr F was unable to seek B’s views on that proposal.

3. Mr F reported, in relation to C:

   … presented as shy, reserved and somewhat overawed by being interviewed at Court. At times during the interview, [C] looked nervous, jiggled her legs up and down and answered, ‘I don’t know’ to a number of questions. [C] gave the impression that she was trying to be neutral and equal in what she said about both of her parents. It appeared that [C] was trying to avoid giving any impression that she favours one parent over the other.

   [C] said that she attends [Q School]; she is in Year 4, enjoys maths and reading and she generally spoke positively about school. [C] chose the same words to describe her parents (‘nice’ and ‘warm’) and said, ‘I like 50:50’ because ‘it’s even’. [C] was unsure whether or not her parents are friends. She spoke positively about spending time with both her parents.

4. The mother told Mr F that she does not believe that the children are unhappy with the current arrangements saying that they don’t complain.

5. It is notable that the children’s views have not changed in any significant way since December 2013 when they spoke with Ms G.

6. The mother deposed to conversations with B since August 2015 where he has said that he misses her and does not want to leave at the end of their time together. That is consistent with B telling Ms G that he misses his mother when he is not with her but does not detract from the fact that B has told both Ms G and Mr F that he likes the current arrangement.

7. The fact that their views have been consistent over the past three years suggests that they are firmly held and that they should be given considerable weight.

The nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

1. Mr F reported:

   The children were observed with both of their parents separately. There was nothing remarkable or concerning about the children’s interactions with either parent. Both parents engaged with the children appropriately and the children appeared to enjoy their time with each of their parents. The children responded positively to their parents when they were spoken to and all were able to negotiate with each other successfully about what activities they would do. Throughout the observation, the children and the parents appeared relaxed and to enjoy each other’s company. [C], in particular, was observed to be much more lively, engaged and outgoing than she had presented in interview.

2. There is no doubt that the children have close relationships with members of the mother’s family who have been closely involved in their care. The mother’s father and two sisters deposed to their close relationship with the children. The maternal grandfather has been actively involved in collecting the children from school as has one of the mother’s sisters.

3. It is greatly to the mother’s credit that she has fostered the children’s relationship with their paternal grandmother. There was a falling out between the father and his mother in about October 2012. The reasons are not explained. Up to that time, the paternal grandmother was seeing the children regularly when they were in the care of the father. This ceased.

4. In August 2013, the paternal grandmother consulted solicitors and caused a letter to be written to the solicitors then acting for the parties asking for time with the children once a week after school. She also proposed family dispute resolution counselling.

5. The father’s response to his mother’s request is not in evidence. The mother, however, contacted the paternal grandmother and arranged for her to collect the children from school in the week they lived with the mother and spend the afternoon with them.

6. That arrangement has continued.

7. In the few weeks before the commencement of the trial, the father obtained full time employment. He then organised for his mother to collect the children after school on Wednesdays when they are with him and spend the afternoon with them.

8. It would seem that the children’s relationship with their paternal grandmother has continued between 2013 and the present only because of the mother’s intervention.

9. The children also have a close relationship with their paternal grandfather. Currently, he looks after C each morning while the father takes B to school. In the afternoon, the paternal grandfather takes C into the city to collect B.

The extent to which each of the child's parents 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

1. Neither parent can be criticised for failing to spend time with the children or to communicate with the children.

2. The father told Mr F that the mother made arrangements for the children without consulting him, particularly referring to her enrolment of the children in Chinese classes after school.

3. In his affidavit he deposed to other instances where the mother changed arrangements for the children without consulting him.

4. The mother points to the father’s refusal to engage with her in decision making about the children.

5. The circumstances surrounding the children’s attendance at Chinese classes, and their enrolment at a private school, are instructive. 

1. In relation to the Chinese classes, the mother tendered a bundle of emails. The father in cross-examination said that he was aware that, even before she sent the first email, the mother had enrolled the children in the class.

2. On 17 September 2015, the mother emailed the father saying:

   … I sent you a screen shot of the letter that came from school about Chinese lessons every Tuesday afternoon at school from 3 pm to 4.30.

   If you could let me know if you’re happy for them to learn this please let me know as I would like to make sure they both get a spot. As I said, I am happy to pay for it, it’s just for next term, and then they can choose to continue it after if they like it. I do think it would be a worthwhile thing for them to have a go at, it may well come in handy in their futures, and they both want to do it.

3. The father did not respond.

4. The mother emailed again on 25 September 2015. The father did not respond.

5. The mother emailed again on 28 September 2015. The father did not respond.

6. On 6 October 2015 the mother emailed again, stating her disappointment that the father would block the children from the opportunity to participate and her belief that his attitude towards her was interfering with his ability to make decisions for the children.

7. The father did not respond.

8. In cross-examination the father was asked why he had not responded to a series of emails that he conceded were polite, appropriate and related to the children’s welfare. He variously said that he might not have read the emails, a somewhat surprising position for a person whose profession is information technology, or that there was no point responding because the mother had already enrolled the children.

9. If it was the case that the mother had secured places in the class for the children in advance of his consent, that was no more than a sensible precaution. It did not commit their attendance. The father’s refusal to engage in discussion with the mother was, as the mother said, disappointing. It was also inappropriate and could not have assisted the children. The father gave no evidence of any objection to the Chinese classes. He simply chose not to discuss the issue with the mother.

10. The parents were unable to agree on B’s attending a private school in 2016. The father’s objection was, in part, financial in that neither party could afford the fees. On 4 June 2015, an Order was made that required the father to sign the enrolment form for B so as to secure the place, but that the father’s signature was not to be taken to signify his agreement that B should attend. Eventually the parents agreed that B would attend the school on the basis that the mother (or presumably her parents) would pay the fees. Agreement was also reached that C would attend the same school but not when C would start. The mother proposed that C attend in Year 6 and the father wanted her to start in Year 7. The passage of emails between them needs to be considered against that factual background.

11. The mother emailed the father about C’s enrolment in October 2014. He conceded that she sent a few further emails. The email correspondence continued on 2 February 2016 and 4 February 2016. The father did not sign the enrolment forms. He said in cross-examination that he had been told by the school that C’s place was secure because her sibling was a pupil at the school. He was not prepared to sign the enrolment form until there was agreement about when C would start. It was his position that C wanted to finish Year 6 at her current school and change schools at the beginning of Year 7. The mother wanted C to change schools at the beginning of Year 6. Because the father would not agree to a change of schools, C has remained at her current school for Year 6.

12. I do not accept that the father’s behaviour on that occasion was unreasonable although it was impolite.

13. The parents have now agreed that C will change schools at the beginning of Year 7. 

14. The mother in her affidavit cites failure on the part of the father variously to respond to her requests for arrangements to be made or failure to agree to her requests. The father in cross-examination said that he preferred to maintain their long standing arrangements and not make changes. 

15. The mother gives the example of her birthday in 2016. Earlier in the month she emailed the father asking if she could have the children from 10 am for Yum Cha and a movie. The father did not respond. She sent further emails on in ensuing days and on the day before in the morning and again in the afternoon. Later on the day before the father responded “Your birthday as per agreement is between 10am-2pm. You can pick them up from the park”. The mother had told the father that the movie started at 11.30 am. He agreed that she collect them at 10 am as she asked. His failure to respond promptly to her initial request was impolite. I do not accept his excuse that he could not remember if he had read the emails. In cross-examination he said that, on his birthday he had the children from 10 am to 2 pm and, I infer, he assumed the mother would have them for the same time. She was able to have the children for Yum Cha and go to the movie as she had wanted.

16. There were similar exchanges of emails in relation to Mother’s Day and New Year’s Eve, characterised by the mother’s repeated requests for time when the children would otherwise be with their father, and the father’s failure to respond.

17. Mr F, in cross-examination, opined that the best way to deal with those sorts of issues was to make specific order about when the children would be with each parent on special occasions rather than to change the whole parenting arrangement.

18. Other than the issue of the Chinese lessons the occasions on which the parents have failed to reach agreement, in relation to the children’s education, are occasions where they had a genuine difference of opinion which was ultimately resolved. I do not accept that the father’s position either in relation to B’s attending the private school, or his refusal to sign the forms for C when they had not agreed when she would start, is so unreasonable as to justify a change of parenting arrangements.

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child 

1. Child Support has been, and will be, determined by the Child Support Agency. No doubt the father, because of his greater income, will be assessed to pay child support to the mother. In the past she has been assessed to pay very modest child support to him.  

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Mr F reported:

   [B] and [C] appear to be much loved by their parents and both report having positive relationships with their parents. They are aware of the conflict between their parents and, it would seem, they have grown accustomed to it over the years particularly since their parents’ separation. Neither [B] nor [C] had a strong desire or views to alter the current parenting arrangement, which is an arrangement that they are used to, appears to be meeting their needs and, more importantly, appears to provide them with somewhat of a buffer between their parents’ ongoing conflict and apparent acrimony given that changeovers occur at school and them being exposed to their parents coming into direct contact is limited.

2. In relation to the mother’s proposal to increase the time that the children spend with her, and decrease the time the children spend with their father, Mr F reported that the mother’s proposal:

   … would cause disruption to the children’s current well-established routine and, more than likely, some anxiety and stress for the children. In all likelihood, this would also be a source of conflict between [the mother] and [the father] because [the father] does not regard any change to the current parenting arrangement as necessary or being in line with what the children want. Even though the children are at an age and developmental stage where such a change to their routine would not prove to be insurmountable, it is preferable to try to protect the children from any further parental conflict. This assessment of the children does not support making any change to their current parenting arrangement, and they themselves have not given any indication of wanting any change.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The mother proposes to continue living with her parents until she is able to find accommodation proximate to the children’s schools.

2. The father, in his Parenting Questionnaire completed in November 2015, stated that he proposed to live with the children in a three bedroomed apartment in Suburb H. In cross-examination he stated his preference to live in the Eastern Suburbs. It appeared that the father had not contemplated that he would not be able to buy a home for himself and the children.

3. In reality, he will have to rent for the next few years. In cross-examination he said that he wanted C to stay at her present school until the end of the year and would have to rent until then. After C finishes primary school and starts at the private school in the city, he would like to move to the Eastern Suburbs.

4. I accept that the father will arrange accommodation for himself and the children which is sufficiently proximate to their schools and that the distance between the accommodation eventually chosen by the parents will be manageable for the children.

The capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Counsel for the mother submitted that the mother wants, for the children, stability, structure and routine.

2. She submitted that the father’s household was disorganised and that, if he could not maintain a tidy home when he was working only ten to twenty hours a week, he could not do so now that he is working full time. Counsel for the mother pointed to the father’s failure to forward mail to the mother so that bills could be paid; his failure to maintain the children’s rooms in a neat and tidy condition. Counsel pointed to the father’s financial affairs being in a shambles and his perceived lack of attention to the children’s homework.

3. In relation to homework, the parents have quite different attitudes. The mother deposed that B received a homework detention for not completing his maths homework on 6 April 2016. The mother deposed to her regime with the children in relation to homework. She expressed concern that the father does not spend enough time with them on their homework.

4. The father deposed to his concern that the mother was taking over the children’s homework and that B had told him in 2015 that the mother did their homework. B’s teacher commented to the father that the handwriting in B’s homework did not appear to be the writing of a child of his age. The father also expressed concerns that the mother withholds information about school projects so that they are done with her and not with him.

5. The father deposed that he has had conversations with the children about homework being their responsibility and that he is there to help them. The father said that B is learning to manage his own time but that the father checks on the school portal to make sure homework is done.

6. I do not consider that the fact that B has received detention on one occasion for incomplete homework should lead to a change in parenting arrangements. The children will experience the different parenting styles in relation to homework from each parent – the father’s style emphasises their taking responsibility for their own work and the mother’s is more hands on and facilitative. Neither can be said to be inappropriate.

7. Similarly, in relation to the physical care of the children, the parents have different styles. However, the children are healthy, there is no complaint about their school attendance.

8. Mr F reported of the mother:

   She believes that [B] has ‘come ahead in leaps and bounds’ and said that she does not have any current concerns about him. [The mother] does not report having any concerns about [C].

9. Mr F expressed the opinion in cross-examination that the disagreements between the parents about matters such as homework and extracurricular activities were not a matter which would, of themselves, necessitate a change in the current arrangement.

10. In relation to the issue of nutrition, which is raised in the mother’s Case Outline, she deposed to one occasion where the children had not had dinner at 7 pm. This is not a significant issue.

11. I accept that the matters of organisation, tidiness and structure, of which the mother complains, are a source of concern to her but there is no evidence that they are a source of concern for the children.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Both parents have cared for these children, week about, for six years. They have each demonstrated their commitment to their roles as parents.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Mr F, in his report stated that to change the parenting arrangements would cause more conflict because the father is opposed to the change. Counsel for the mother submitted that, to refrain from changing the arrangement because the father would be upset was giving in to bullying.

2. Mr F in cross-examination said that he was concerned that changing the arrangements might expose the children to more conflict.

3. In his report Mr F stressed the fact that the continuing hostility between the parents is a risk factor for the children.

4. I accept that the father is likely to be very unhappy and perhaps angry if the arrangements are changed. It is inevitable that this will have, as Mr F said, a “trickling down” effect on the children.

5. Ultimately, the mother’s case rested on the proposition that changing the parenting arrangements will benefit the children by reducing the conflict between the parents.

6. The basis of that proposition is less than clear. They will continue, on any version of the competing propositions, to share the care of the children. They will have to negotiate the minutiae of the children’s day to day lives.

CONCLUSION

1. These parents have different parenting styles. The children have grown accustomed, over the past six years, to living in two very different households.

2. They each express a firm and long held view that they want that situation to continue.

3. I accept the evidence of Mr F that the mother’s proposal would cause disruption to the children’s well established routine and cause stress and anxiety to the children.

4. Mr F stated “This assessment of the children does not support making any change to their current parenting arrangement, and they themselves have not given any indication of wanting any change”.

5. In accepting Mr F’s assessment, I give greatest weight to the long held views of the children that the current week about arrangement should continue.

PARENTAL RESPONSIBILITY

1. Parental responsibility is a matter to be determined having regard to all of the matters that govern decisions about the best interests of children.

2. Having determined that it is in the best interests of these children to live in an equally shared care arrangement, the same considerations apply to parental responsibility.

3. The matters that fall to be determined in the exercise of parental responsibility are the major long term important issues such as education, religious and cultural upbringing, health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.

4. Allocation of parental responsibility to one parent will not change the fact that they still have to agree on the myriad of minor decisions about the day to day care of the children.

5. The only matter relevant to parental responsibility that has arisen in the course of these proceedings is education. The parents have been able to agree that B will continue to attend his present school and C will remain at her current school until she completes Year 6, commencing at the same school as B in Year 7.

6. It remains appropriate that the parents have equal shared parental responsibility.

7. The issue of extra-curricular activities has been raised by both parents. Each alleges that the other has enrolled the children in activities without consulting the other. Each alleges that the other has failed to take the children to activities.

8. The orders will provide that neither parent will be permitted to enrol the children in any extra-curricular activity without the consent of the other. In the event that a parent is notified by email of a proposed activity, and does not respond within seven days, the parent will be deemed to have given consent. The orders will further provide that each parent will facilitate the children’s participation in the agreed activities. This regime will not apply to the children’s existing activities which should continue unless both parents agree that they should cease.

ANCILLARY ISSUES

1. The parties are agreed that there should be liberal telephone contact with the children but that there should also be a set requirement that the children speak to the other parent on Tuesday and Saturday evening.

2. In relation to the Easter break, if it does not form part of the school holidays, the mother proposes that they each have the whole of the period in alternate years. The father did not oppose that proposal.

PROPERTY

1. The only substantial asset of the parties is the home. They can no longer share its use. Each of them made contributions to its acquisition, maintenance and improvement. It is just and equitable that there should be a division of its equity.

THE BALANCE SHEET

1. At the commencement of the trial, the parties tendered a joint balance sheet which is reproduced below. Some items from the document have been deleted as counsel conceded that they should not be included.

Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	W	1 D Street Suburb E		E$1,300,000	E$1,300,000
2	W	Shares		E$14,503	$14,503
3	W	Westpac Moderate Growth Fund (BT Portfolio Wrap)		NIL	NIL
4	W	Westpac Account …		$6	$6
5	W	Commonwealth Bank Smart Access Account …		$12	$12
6	W	Macquarie Cash Management Account (as at 29 April 2016)		$5	$5
7	W	Westpac E-Saver Account … (as at 11 March 2016)		NIL	NIL
8	W	Motor Vehicle 1		E$11,550	E$11,550
9	H&W	Household Contents (D Street)		$10,115	$10,115
10	W	Artwork, jewellery, items (I Street)		$15,900	$15,900
11	W	Loan to Mr J		$29,500
12	H	Commonwealth Bank of Australia Smart Access … (as at 27 April 2016)		$2,287	$2,287
13	H	St George Bank (K Business Ac)		$476	$476
14	H	Coca Cola Shares		$8,000	E$8,000
15	H	Motor Vehicle 2(unregistered)		$700	$700
16	H	Motor bike (unregistered)		$1,000	E$1,000
17	H	Windsurfer		$1,000	E$1,000
18	H	Shares in K Pty Ltd		Nil/negligible	NIL/negligible
19	H	Shares in L Pty Limited		Nil/negligible	NIL/negligible
20	W	Westpac E-Saver account number … in trust for B		NIL
21	W	Westpac E-Saver account number … in trust for C		NIL
22	W	CBA Shares held in trust for C		$47,594
23	W	CBA Shares held in trust B		$58,119
Total		$1,395,054	$1,471,267
LIABILITIES
24	W	Home Mortgage (as at 27 April 2016)		$211,850	$211,850
25	H&W	Loan secured over home (as at 4 April 2016)		$49,083	$49,083
26	W	Loan from parents		$302,946
27	W	Loan from Aunt		$100,000
28	H	L Pty Ltd Tax Debt (as at 19 March 2015)		$173,879
Total		$663,879	$434,812
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
29	W	Australia Super (as at 11 May 2016)	$28,988	$28,988
30	H	AMP Superannuation (as at 8 Feb 2016)	$8
31	H	IOOF Portfolio Service Super Fund (8 Feb 2016)	$9,030
32	H	ATO Held Super (as at 23 July 2015)	$951
Total		$28,988	$38,977

1. The areas of dispute between the parties will be dealt with using the item numbers on the balance sheet.

   Item 11 – Loan to Mr J

2. The mother has lent money to Mr J. She deposed that $29,500 remains outstanding. The father’s evidence is that he does not know what amount is owed. No questions were directed to the mother in cross-examination about this issue. I accept her evidence.

   Item 26 – Loan from the wife’s parents

3. Mr M Walker, the mother’s father, in an affidavit sworn 30 November 2015, deposed to an advance of $81,000 to pay the deposit on the home at D Street, Suburb E and a further advance of $31,954 to pay stamp duty.

4. In his affidavit he records the conversation with the mother as follows “I am happy to provide these monies, but it is a loan and I do expect it to be repaid whenever I seek the monies.”  

5. The alleged loan was not documented although the mother’s father in his affidavit deposed that he had advanced money to another daughter who had “signed a document for her loan”.

6. The legal consequence of the loan’s being repayable on demand is that the first occasion on which demand could be made is on the day of the advance. Thus, for the purpose of the Limitation Act 1969 (NSW), the right of Mr Walker to recover the amount expired six years from the date of the advance, or in about late December 2012.

7. The debt is statute barred and will not be included as a liability. 

8. The mother’s mother advanced $190,000 towards the purchase of the home. She did not swear an affidavit. The only evidence that the funds were lent is a statement in the affidavit of the mother to the effect that the source of funds for the purchase were loans from her parents. The mother’s mother is unwell and was unable to participate in the proceedings. Setting aside the admissibility of the mother’s statement, the same principles apply in relation to the advance from her mother to the advance from her father. It too, is statute barred. The amount will not be included as a liability.

   Item 27 – Loan from mother’s aunt

9. The mother and her aunt, assert that the sum of $100,000 provided by her aunt towards the purchase of the home is a loan and should be repaid. Counsel for the mother conceded in opening that the loan was not enforceable.

10. The mother’s aunt, Ms N Walker (“Ms N Walker”) swore an affidavit in the proceedings. She deposed to a conversation with the mother before the purchase of the home where she said to the mother:

    I am happy to give you $100,000 towards the purchase. I have only recently loaned [the mother’s sister] $100,000 towards the purchase of her unit. I have a mortgage registered to secure my loan over [the mother’s sister’s] home at the time of her purchase. I wish the $100,000 to you to be put in place in the same way as I have done for [the mother’s sister] – it is a loan and it is to be repayable on demand.

11. Ms N Walker deposed that no documentation was ever prepared in relation to the advance.

12. The money was advanced on 6 December 2006.

13. Ms N Walker deposed that the loan was repayable on demand. The legal consequence of the loan’s being repayable on demand is that the first occasion on which demand could be made is on the day of the advance. Thus, for the purpose of the Limitation Act 1969 (NSW), the right of Ms N Walker to recover the amount expired six years from the date of the advance or on 7 December 2012.

14. No request for repayment has ever been made.

15. The debt is statute barred and will not be included as a liability.

    Item 28 – L Pty Ltd tax debt

16. The father alleges that this debt arose from the activities of his business and was incurred between 2007 and 2010 during the time the parties cohabited. L Pty Limited (“L Pty Ltd”) was wound up in 2015.

17. Annexed to the father’s affidavit is a document from the Australian Taxation Office entitled “Warning of intended debt collection action” addressed to the company dated 17 March 2015.

18. Tendered in the father’s case was the balance sheet for L Pty Ltd for the year ended 30 June 2010. The balance sheet shows tax outstanding of $48,753.

19. Also tendered in the father’s case was the taxation return for L Pty Ltd for the year ended 30 June 2014. The return disclosed that the father owed L Pty Ltd $342,583 by way of shareholder loan account. There was no evidence of the current amount owed by the father to L Pty Ltd but it was not submitted by counsel for the father that the loan had been reduced.

20. Thus any funds which were ordered to be paid to the father by way of property settlement are potentially available to be recovered by the liquidator to meet the debts of L Pty Ltd, including but not limited to, the taxation debt.   

21. At the conclusion of the father’s case there was no evidence of the debts of L Pty Ltd or of the intentions of the liquidator in relation to recovery of the father’s debt to L Pty Ltd. The father was given the opportunity to call evidence from the liquidator who provided a letter which was tendered without objection.

22. The letter stated, omitting formal parts:

    1.We advise that at this point in time we do not intend to commence action against the Director, [the father], in relation to the failure of the Company on a commerciality basis;

    2.We note that a further amount of $1,000.81 pursuant to a deed of indemnity signed by [the father] remains outstanding and is required to be paid to the Company; and

    3.We do not wish to be heard in relation to the family law matter.

23. Thus the only amount for which the father will be liable is $1,000.81 which debt was incurred after separation. I accept the submissions of both counsel that this debt should not be included on the balance sheet.

    Chattels

24. In the course of the hearing, the parties agreed on a division of chattels. The mother will retain items valued at $25,960 and the father will retain items valued at $5,165. Those values will be recorded in the balance sheet.

    Shares held in trust for the children

25. No evidence was given to suggest that the parcels of shares are other than beneficially owned by the children. The items will be removed from the balance sheet.

    ANZ shares

26. The husband in his financial statement sworn 6 July 2012 deposed to owning 350 ANZ shares. Those shares are not included in his assets in his financial statement sworn 27 May 2016 but in cross-examination he said that he had not disposed of them. The value of the shares is a matter of public record and they will be included in the balance sheet at the value as at 6 June 2016 which is $24.98 per share or $8,743.  

27. I therefore find that the assets and liabilities of the parties are:

Ownership		Description		Value
1	M	D Street, Suburb E		$1,300,000
2	M	Shares		E$14,503
3	M	Westpac Account …		$6
4	M	Commonwealth Bank Smart Access Account …		$12
5	M	Macquarie Cash Management Account (as at 29 April 2016)		$5
6	M	Motor Vehicle 1		E$11,550
7	M	Chattels as agreed		$25,960
8	M	Loan to Mr J		$29,500
9	F	Chattels as agreed		$5,165
10	F	Commonwealth Bank of Australia Smart Access …(as at 27 April 2016)		$2,287
11	F	St George Bank (K Business Ac)		$476
12	F	Coca Cola Shares		$8,000
13	F	ANZ shares		$8,743
14	F	Motor Vehicle 2 (unregistered)		$700
15	F	Motor bike (unregistered)		$1,000
16	F	Windsurfer		$1,000
Total		$1,408,907
Liabilities
17	M	Home Mortgage (as at 27 April 2016)		$211,850
18	M&F	Loan secured over home (as at 4 April 2016)		$49,083
Total		$260,933
Net assets		$1,147,974
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value
20	M	Australia Super (as at 11 May 2016)	$28,988
21	F	AMP Superannuation (as at 8 Feb 2016)	$8
22	F	IOOF Portfolio Service Super Fund (8 Feb 2016)	$9,030
23	F	ATO Held Super (as at 23 July 2015)	$951
Total		$38,977

1. The net assets of the parties, excluding superannuation, are $1,147,974. Of this pool, the father has assets in his possession of $27,371. Excluding the home, which will be sold, the mother retains assets valued at $81,536.

DATE OF COMMENCEMENT OF COHABITATION

1. The father alleged that the parties started living together in his Suburb O apartment in 1999. The mother alleged that they started to live together in the property at 2 D Street which they jointly purchased.

2. The mother gave evidence that she lived in her parents’ home until the purchase of 2 D Street. She gave quite detailed evidence about the reasons she needed to live with her parents including the size of the architectural drawings she needed to work on for her studies and the very limited space in the Suburb O apartment. The mother’s father was not cross-examined about when the mother moved from her parents’ home. The father’s mother was cross-examined and said that although she saw the mother at the Suburb O apartment in 1999 and thereafter, she could not state positively that the mother lived there.

3. It is most likely that the mother spent time at the Suburb O apartment but maintained a residence with her parents until the parties bought 2 D Street in 2002.  

4. They do not allege that they mingled their funds before 2002 except for the transaction, which will be examined later in these reasons, involving Mr P.

INITIAL CONTRIBUTIONS

1. The mother had $50,000 which she had inherited. On her 25^th birthday, she also inherited a share portfolio which at March 1999 had a market value of $179,427.

2. The father owned a property at Suburb O which he had purchased for $210,000 with a mortgage of $40,000. That much is agreed.

3. What other assets the father had at the commencement of cohabitation was a matter in dispute.

4. He had inherited a substantial sum from his grandfather in 1994 and in 1999 he received a compensation verdict following a motor vehicle accident.

5. His own evidence in relation to his asset position in 2002 was conflicting. In his affidavit he said, firstly, that in 1999 he had savings of $180,000 from his verdict money and his inheritance. In cross-examination he said that the amount of $180,000 was the money he used to buy Suburb O. He said that the funds might have been in shares and in a term deposit with the ANZ Bank.

6. Later in his affidavit he deposed to having approximately $100,000 in 1999 when he says they commenced living together.

7. He produced no documentary evidence of his savings or shareholdings at the time of the commencement of cohabitation.

8. He probably had, at least, the shares in Coca Cola and ANZ Bank that he retains. He had some money, as is explained when the contributions to the purchase of 2 D Street are examined.

9. How much the husband had, in addition to his Suburb O apartment, is not possible to quantify.

10. I accept that he had, at least, as much as the mother had.

11. The mother finished her degree and commenced employment in 2001. The father worked full time in employment until 2002 when he started his own business.

CONTRIBUTIONS FROM MAY 2002

1. The parties purchased the property at 2 D Street together. As has been explained earlier in these reasons, the purchase will be taken to mark the commencement of their cohabitation, for the purpose of these proceedings.

PURCHASE OF 2 D Street, Suburb E (“Suburb E”)

1. 2 D Street was purchased in May 2002. There is no dispute that, by this time, the parties were living together.

2. The purchase price was $490,000. The mother’s parents gave the parties $50,000 and the father’s mother gave them $25,000. The mother asserts that the balance was borrowed. A copy of the mortgage is annexed to the father’s affidavit. The amount borrowed was $360,000. The father asserts that the balance of $55,000 came from his verdict money and inheritance. The mother advances no alternate explanation. It is likely, and I accept, that the father provided $55,000 which is the amount required to complete the purchase.

3. The parties moved into Suburb E and received rent from the father’s Suburb O property of about $200 per week which was applied towards the mortgage on Suburb E.

4. In May 2003, the Suburb O property was sold for $280,000. The mortgage had been paid off. The father asserts that between $100,000 and $150,000 from the proceeds of sale was deposited to the mortgage over Suburb E and the balance was placed in a fixed deposit. The mother does not admit that assertion and said that she does not know how the funds were used.

5. The father did not provide any document to substantiate his claims in relation to the proceeds of sale of Suburb O.

6. In May 2006 the parties sold Suburb E for $532,500 and received about $133,000.  That suggests that the mortgage and costs of sale totalled $399,500. Given that the mortgage was originally $360,000, that evidence does not support the father’s assertion that he reduced the mortgage by a lump sum of either $100,000 or $150,000. To the contrary, given that the initial equity of the parties in 2 D Street was $130,000, it suggests that they might have increased the mortgage.

7. There is no evidence to establish what happened to the proceeds of Suburb O. When B was born in 2004, the father’s mother gave them $10,000 towards the mortgage because, she said in cross-examination, she believed that they were in financial difficulties. That belief is not consistent with the father having invested the balance of the proceeds of Suburb O, after paying a lump sum off the mortgage, in a term deposit, as he deposed. Neither is it consistent with his having paid a large lump sum off the mortgage which would presumably have relieved any financial pressure caused by the mother’s maternity leave.

8. It was the unchallenged evidence of the mother that from 28 April 2005 and throughout 2006 she provided money to the father’s business by selling shares and transferring the funds to him. The total sum she transferred was $80,900. It may, of course, be the case that the father simply retained the money from the sale of Suburb O and still asked the mother for assistance.

9. Some money was spent on improvements to 2 D Street but not all of that money came from the father as he alleged. The mother provided a cheque butt showing that she had paid for an air conditioner for which the father claimed to have paid.

10. After the sale of 2 D Street they lived with the mother’s parents until they purchased the home in November 2006.

PURCHASE OF D Street, Suburb E

1. The purchase price of the home in November 2006 was $810,000. Stamp duty was $31,946.

2. The mother’s father paid the deposit of $81,000 and the stamp duty.

3. The mother’s mother gave them $190,000.

4. The wife’s aunt advanced $100,000.

5. $133,000 came from the sale of 2 D Street.

6. The wife paid $15,000 from the sale of inherited shares.

7. $260,000 was borrowed from the Commonwealth Bank.

8. Those funds amount to $779,000. The father deposed that he provided $49,000 from his term deposit. The shortfall was $31,000. Given that the stamp duty had been paid by the mother’s father, there is no explanation for the assertion that the father contributed $49,000.

9. The proceeds of sale of 2 D Street had been placed in a term deposit and must have earned some interest but I do not accept that the interest in $133,000 for six months could have made up the shortfall.

10. No other explanation is advanced by the mother. I accept that the shortfall came from the proceeds of sale of the father’s Suburb O property but the amount was less than the father claimed.

OTHER CONTRIBUTIONS

1. The mother was in paid employment from 2002 until 2008 with the exception of two periods of maternity leave. She did not work in paid employment after 2008.

2. The father started business on his own account in 2002. There is no evidence of his earnings.

3. The mother deposed to contributing sums from the sale of her share portfolio to the father’s business. Annexed to her affidavit are documents evidencing payments totalling $80,900, mostly in 2006. She also deposed to having used $31,600 from her inheritances to pay mortgage payments between 2004 and 2009.

4. Contributions were also made by their parents.

5. The mother acknowledges a payment of $10,000 towards mortgage payments by the father’s mother. The father’s mother deposed that she gave the parties further sums totalling $18,763.

6. The mother’s mother gave the parties $40,000 which was applied to mortgage payments. The mother’s father gave them $25,000 for a new car in 2005, $10,000 towards mortgage payments and a further $21,815 towards various expenses.

7. The mother’s father also purchased items of furniture, some of which were gifts and all of which the mother seeks to retain.

8. In 2015, when the father was unable to pay the mortgage on the home, the mother’s father commenced paying and, as at the date of his affidavit, he had paid $6,861 in mortgage payments.

9. Since separation, when the mother has lived with her parents, her father has paid further amounts for her support and that of the children. He currently provides the mother with $1,200 per month in addition to her salary.

ALLEGED DEBTS TO MR P

1. The mother asserts that at the time the parties commenced their relationship in about 1998 the father told her that he owed Mr P $30,000. She deposed that she gave him $30,000 from the cash she had inherited to pay the debt to Mr P.

2. The mother further asserts that in 2010 the father had another debt to Mr P of $50,000. The mother raised a mortgage of $60,000 over the home and asserts that she gave that money to the father to pay Mr P. She asserts a conversation where she told him that the second mortgage was his responsibility because the debt to Mr P was his debt and that the father thereafter paid the repayments on the second mortgage until about the time of separation.

3. Mr P was not called in either the mother’s or the father’s case.

4. The father disputes the mother’s assertions. He deposed that he never owed money to Mr P.

5. The father deposed that Mr P was a mutual friend. In about 2009 there was a conversation between the parties where the mother told the father that Mr P wanted to borrow money and they needed to raise a second mortgage. The father agreed to raise $60,000. He understood that half of this amount was for Mr P and the balance was retained by the mother.

6. The father deposed to attempting to contact Mr P but being unable to do so.

7. The mother’s evidence in relation to the transactions is very detailed. She deposed to conversations with the father, she gave detailed evidence of the events surrounding the withdrawal of funds in 1998 and conversations with the father after that time where she asked for the money to be repaid. She was not cross-examined about the details of her recounting of that event.

8. The father in cross-examination admitted that he had met Mr P when they were both employed as waiters before he met the mother.

9. In relation to the second transaction whereby a second mortgage was raised over the home, the mother again gave detailed evidence. She deposed to conversations with the father when he told her that he would be obliged to leave the country if he did not repay Mr P $50,000. She was not cross-examined in relation to those details.

10. As has been demonstrated in these reasons, the father’s evidence in relation to financial matters was unreliable. On numerous occasions he gave evidence which was simply a reconstruction or, at worst, untrue. The mother’s evidence, in contrast, was supported by documents in most instances and, in relation to financial matters, was largely unchallenged. She was a more reliable reporter in relation to financial matters.

11. It is likely, in all the circumstances, that the mother’s account of the transactions involving Mr P is more accurate than the father’s.

12. I accept that the mother gave the father $30,000 in 1998 to repay Mr P. Whatever may have been the use to which the father put those funds, it was not related to the parties.

13. There is no evidence of the use to which the father put the further amount of $50,000 borrowed from Mr P. The borrowings occurred during the period when the parties were cohabiting. It cannot be assumed that the funds were used other than on the parties’ living expenses.

CONTRIBUTIONS AFTER SEPARATION

1. The father has remained in the home.

2. In his affidavit, the father claimed that at the time of separation, he paid a lump sum of $20,000 off the mortgage and he continued to make monthly payments until February 2015 when his business experienced a downturn and he was no longer able to pay.

3. That evidence was untrue.

4. No lump sum of $20,000 was paid off the mortgage, either at the time of separation or at any other time. In 2010 the father paid a total of $9,000 in mortgage payments, the first payment being made on 1 July 2010. Between 1 July 2010 and 22 March 2015, the father paid a total of $70,371 in mortgage payments on the primary mortgage.

5. The father’s payments were not made monthly. In 2011 he made five payments. In 2012 he made three payments. The payments were more regular in 2013 and 2014 but he missed some months.

6. Between 9 August 2011 and 22 March 2015, the father paid a total of $11,280 in mortgage payments on the second mortgage (the mortgage from which money was paid to Mr P). In May 2011, although he was not making payments on the second mortgage, the father redrew $6,340.

7. The father ceased paying council rates in November 2014. The mother was contacted by the council when the rates outstanding were $3,311.45. The father in cross-examination said that he had not opened letters which were delivered to the house and that he sometimes forwarded on mail addressed to the mother. The mother’s father paid the outstanding rates.

8. The mother was served with an Examination Order returnable on 26 May 2016 in relation to water rates outstanding in the sum of $3,197.98. She had no prior knowledge that the rates had not been paid. Again, her father paid the amount outstanding.

9. The property was valued by a single expert who prepared a report dated 24 February 2016. Attached to the report was a series of photographs showing the backyard completely overgrown and the interior and exterior of the property in a very poor state of repair. The single expert noted:

   The subject property is in a very poor state of repair and is extremely unkept (sic).

   As can be seen from the photographs every room is cluttered which prevented a detailed examination of the structure, however, the following points were noted during my inspection.

   1)     Rising damp is severe in the [party wall].

   2)     The Southern wall of the lounge is cracking. This may possibly be a render crack, however, I am unable to investigate.

   3)     The external render is suffering from raising damp and is falling off the wall.

   4)     The lattice shed is in poor condition.

   5)     The exterior of the property requires painting.

   6)     The rear grounds need a high level of maintenance to tidy them up.

   Overall the subject property is very untidy and requires some serious maintenance if it is to be placed on the open market.

10. The father has had the use of the home since separation. The mother has not been allowed entry.

11. The father in cross-examination said that he had not been able to afford to remediate the rising damp. However, he also gave evidence that he worked between 10 and 20 hours each week in his business. He cares for the children only in alternate weeks. He has not performed the most basic maintenance or conservation on the property. He said that he had the backyard cut once a year. He agreed that one of the children’s bedrooms was uninhabitable. He has had the benefit of occupation but not the burden of maintenance and conservation or, except for those payments which had been recorded, the financial burden of the mortgage or, since 2015, of the rates and water rates.

12. The father has not been without funds. He has operated a business. The taxation return of the business for the year ended 30 June 2014 showed that he owed the business $342,583. He agreed in cross-examination that he treated the business bank account as his personal account.

13. The mother’s father made mortgage payments both before and after separation. Between May 2009 and April 2013 he paid $53,320 either directly to the mortgage account or to the mother for payment to the mortgage account.

14. When the father indicated in July 2015 that he could no longer pay the mortgage the mother’s father commenced paying and has paid $6,861 to the date of the trial. No doubt he will continue to make the payments until the property is sold. He also paid the rates and water rates referred to earlier in these reasons.

15. The mother’s mother gave the mother $41,000 in March 2011 and $20,000 in October 2011. The first amount was part of the money lent by the mother to Mr J of which a portion has been repaid (Item 8 in the final balance sheet). The second amount was used by the mother for “mortgage and other expenses”.

16. The mother’s mother paid $13,300 in mortgage payments in 2010 and $3,658 in 2013. In July 2015 she paid $3,658.

17. The mother’s father has also paid for expenses of the mother and the children since separation. He gave her, until recently, an allowance of $1,200 per month. He has paid for various expenses such as clothing and school expenses and has paid the mother’s Visa card bills. 

18. The parents have each cared for the children in alternate weeks.

19. In 2015 the father applied for a child support assessment and the mother was assessed to pay a small amount which the father has calculated to be $53 per week on average.

CONTRIBUTION ENTITLEMENT

1. The contributions at the commencement of cohabitation are assessed as equal.

2. During the relationship, the mother’s parents made significant contributions both to the acquisition of their real properties and to their day to day expenses. Those contributions significantly outweighed the like contributions made by the father’s mother which are agreed to be $53,763.

3. The contributions made by the mother’s parents and aunt are in excess of $550,000 and must be given great weight in an asset pool of this size.

4. Contributions are assessed at 65per cent to the mother and 35per cent to the father.

SECTION 90SF(3) ADJUSTMENT

1. The parties are aged in their 40’s and each is in full time employment.

2. The mother earns $80,444 per annum and the father earns $144,040 per annum.

3. The mother has superannuation entitlements of $28,988 and the father has superannuation entitlements of $9,989. Neither has asked for a splitting order and those entitlements will not be disturbed. However, neither will have access to their funds for many years.

4. They each have responsibilities to house and maintain the children.

5. There were some other matters which, on behalf of the mother, it was submitted should be taken into account.

ADVANCES TO THE MOTHER FROM HER FAMILY

1. On behalf of the mother, it was contended that, although she has no legal obligation to repay the money which was advanced to her by her parents and her aunt, she is morally obliged to repay the funds.

2. I have dealt with the characterisation of these advances earlier in these reasons.

3. In relation to the amounts advanced by the mother’s father and aunt, despite the fact that the parties have been separated for six years, there has never been any request made by either of them for the money to be repaid.

4. The application of the mother filed 28 March 2012 was for an order that she retains the home. It would not seem that, while she maintained that application, it was her intention to repay her father and her aunt.

5. Shortly before the commencement of the trial, the mother’s application changed so that she sought orders for the sale of the home, the payment of a specified sum to the father and the balance to her. In cross-examination, the mother said that she intended to apply her share of the proceeds of the sale to the purchase of accommodation for herself and the children.

6. Absent a windfall, it is unlikely that the mother will repay the amounts which were advanced.

7. No adjustment should be made to take into account the possibility of repayment.

THE STATE OF THE HOME

1. Counsel for the mother submitted that the state in which the father leaves the home should be considered pursuant to s 90SF(3)(r).

2. The father has had the benefit of occupation for six years. He has neither maintained nor conserved the property. Money will need to be spent to make the property presentable for sale. That cost can be recouped from the parties according to their entitlement. However, work will have to be done to make the property presentable and that will be done by the mother. In discussion about this issue the father agreed to submit to order that he would allow the mother access so that she could prepare the property but he did not suggest that he would do the work himself or assist the mother.

3. Although the mother has been fortunate to be able to live with her parents for the past six years, she has had no benefit from her ownership of the home, which has been entirely utilised for the benefit of the father.

4. The father’s enjoyment of the asset and his failure to maintain and conserve the home are matters worthy of some adjustment in favour of the mother.

THE MOTHER’S CREDIT RATING

1. Also pursuant to s 90SF(3)(r), it was submitted that, because of the father’s failure to meet mortgage payments and his failure to tell the mother about overdue rates and water rates, her credit rating is likely to have been downgraded and that she should be compensated by way of adjustment.

2. There was no evidence of any application or enquiry by the mother leading to any rejection of any application for credit. No report was tendered from any credit rating agency.

3. The mother’s father has ensured that her credit card bills have been paid.

4. Absent evidence of actual damage to the mother’s credit rating, I am not prepared to make the assumption urged upon me by counsel and no adjustment will be made for this issue.

LEGAL FEES

1. Each party has incurred fees. The father has borrowed $60,000 from his father and drawn down $6,340 from the second mortgage. To the extent that funds were drawn down on the mortgage, the effect is that the sum will be repaid jointly and, because the mother is entitled to the greater share of the net proceeds, she will repay the greater proportion of the second mortgage.

2. The mother’s legal fees have been paid by her parents. There is no evidence that they will require repayment.

CONCLUSION

1. There should be a modest adjustment in favour of the mother of 10per cent to take into account the matters relevant to s 90SF(3).

MOTHER’S APPLICATION FOR POSSESSION OF THE HOME

1. The mother in her amended application sought an order that the father vacate the home within 21 days so that she could take possession and prepare the property for sale.

2. In support of that application, the mother replied on the valuation report of the single expert.

3. Counsel for the mother, in submissions told the Court that the mother was prepared to advance $10,000 to the father to assist him in paying a bond and moving costs, such sum to be repaid to her from his share of the proceeds of sale.

4. The father opposed that application. Counsel for the father submitted that it was sufficient that the father agreed to be bound by an order to allow the mother access to the property to do whatever is necessary to prepare it for inspection.

5. While the father’s position might seem reasonable, perusal of the photographs attached to the valuation report suggests that the property could not be made presentable while the father remains in occupation. More significantly, however, counsel for the mother relied on two bundles of documents exhibited to the affidavit of the mother sworn 6 November 2015. The first bundle related to the mother’s attempts to arrange to collect, or have delivered, her personal belongings from the home. No arrangement was able to be concluded until an agreement was reached in the course of the trial. It is sufficient to note that the correspondence, between the father then acting for himself and the mother, stretched over 28 pages.

6. The second bundle of correspondence, more voluminous, between June and November 2015 in relation to the instruction of the single expert valuer. The valuation, in relation to which orders were made on 4 June 2015, was finally prepared in February 2016.

7. It is in the mother’s interest, as she will receive the greater share of the proceeds, to maximise the sale price and she should be permitted to present the property in the best possible light.

8. There could be no confidence that the home will be able to be prepared for sale unless the father has vacated it and orders will be made in accordance with the mother’s application.

CONCLUSION

1. The mother will receive 75per cent of the net value of the property of the parties and the father 25per cent.

2. They have chattels to the value of $108,907. Of this amount, the father is entitled 25per cent or $27,227. The difference between the value of the assets in his possession and his entitlement is so small as not to justify a further payment.

3. If the property sells for the valuation of $1,300,000, then after the discharge of the mortgage and the costs of sale, the mother should receive about $750,000 and the father $250,000.

4. The net proceeds of the home, after the mother has been reimbursed the costs of preparing the property for sale, will be divided as to 75per cent to her, a further re-imbursement of $10,000 to her, and the balance to the father.

I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 June 2016.

Associate: 

Date:  10/06/2016