Warnold & Bleauchamp - [2009] FamCA 214

FAMILY COURT OF AUSTRALIA

WARNOLD & BLEAUCHAMP

[2009] FamCA 214

FAMILY LAW – CHILDREN – best interests – whether parents entitled to equal shared parental responsibility despite lack of agreement about major long-term issues and substantially different views about other parenting styles – with whom a child spends time – equal time – substantial and significant time

FAMILY LAW – PROPERTY – DOMESTIC RELATIONSHIP – whether a domestic relationship existed under Domestic Relationships Act 1994 (ACT) – whether or not both parties must provide material benefit to the other party in order to have a domestic relationship – meaning of the words “nature and duration of the relationship” in determining each parties’ contributions under s 15(1) of the Domestic Relationships Act 1994 (ACT) – significance of difference between Domestic Relationships Act 1994 (ACT) and Property (Relationships) Act 1984 (NSW) with respect to the term “nature and duration of relationship” – significance of different earning capacities of each party – whether taxation liability should be taken into account as a factor under s 19(2) of the Domestic Relationships Act 1994 (ACT) – whether a moral promise to share in proceeds of sale of a business should be taken into account as a factor under s 19(2) of the Domestic Relationships Act 1994 (ACT)

FAMILY LAW – EVIDENCE – Family Report

FAMILY LAW – JURISDICTION – Cross vesting under s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)

Domestic Relationships Act 1994 (ACT)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
Legislation Act 2001 (ACT)
Limitation Act 1985 (ACT)
Property (Relationships) Act 1984 (NSW)

Af-Petersens v Af-Petersens (1981) FLC 91-095
Ferris v Winslade [1998] ACTSC 172
Lee Steere & Lee Steere (1985) FLC 91-626
McKenzie v Storer [2007] ACTSC 88
Pastern & Pastern [2007] FamCA 620
Parshen & Parshen (1996) 136 FLR 185
Rosati & Rosati (1998) FLC 92-804
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Mr Warnold

RESPONDENT:

Ms Bleauchamp

FILE NUMBER:

CAC

975

2007

DATE DELIVERED:

24 March 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

11 & 12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Brzostowski SC

SOLICITOR FOR THE APPLICANT:

Mr M Eley

COUNSEL FOR THE RESPONDENT:

Ms J Godtschalk

SOLICITOR FOR THE RESPONDENT:

Mr M Kukulies-Smith

Orders

Child matters

Otherwise than as herein provided both the mother and father of …, born on … June 1999 (“the child”) will share equal responsibility for him.
a. Notwithstanding the last order the child’s mother will have sole parental responsibility for all decisions relating to his health and ongoing medical treatment including but not limited to the administration of immunotherapy medication as prescribed by the relevant specialist or other medical practitioner.
b.Notwithstanding the last sub-order in relation to all matters relating to the child’s health the mother will consult with the father and keep him advised of all aspects of any treatment that the child may be undergoing or any appointments that the child will be attending.
The child will live with his mother.
a. The child will spend time with his father during school terms on each alternate weekend, unless the parents otherwise agree, from after school on the Friday until Monday morning when, unless the parents otherwise agree, he will return the child to school.
b.The first of such weekends will commence on 27 March 2009, unless the parents otherwise agree.
a. The child will spend half of each school term holiday period (including the longer summer vacation with each of his parents). Unless the parents otherwise agree he will spend the first half of the term school holidays with his father in the year 2009 and with his mother in 2010 and alternating each year thereafter.
b.So far as the longer school holidays are concerned the child will spend two weeks in the first half of each summer school holidays with his mother (unless the parents otherwise agree) and one with his father.
In each alternate year it is expected by the parents, and they will arrange it so that the child spends the week immediately preceding Christmas with his father including Christmas Day up until 2pm on Christmas Day. The first of such years will be 2009.
In the years when the child does not spend the week before Christmas with his father the child will spend from 2pm on Christmas Day until 5:30pm on Boxing Day with his father

IT IS NOTED THAT:

This arrangement is to take account of the fact that the mother is more likely to have leave during the period referred to and is designed to maximise the benefit for the child in spending time with each of his parents.

Property matters

Within 14 days of this order, both the applicant and respondent will do such things and sign such documents as may be necessary to arrange for the property at T to be listed for sale by auction within such time as the listing agent may nominate, but it is suggested within 30 days. The arrangements for the auction are to include the following:
a.The parties will confer and agree about the agent and the auctioneer to conduct the sale of the property. If the parties are unable to agree about the agent and the auctioneer they will accept the nominee of the President of the time-being of the Real Estate Institute of the Australian Capital Territory.
b.The parties will confer and agree upon a reserve price for the property but if they are unable to agree about the reserve price they will accept the recommended reserve price by the auctioneer as a realistic market price likely to attract a buyer.
c.Either party may bid at the auction.
d.If the gross sale price of the property is less than $800,000 the amount to be paid by the applicant to the respondent in accordance with order 9(f) hereafter will be reduced by an amount equal to 35 per cent of the difference between the actual selling price and $800,000.
e.If the sale price of the property exceeds $800,000 the amount to be paid by the respondent pursuant to the same order is to be increased by 35 per cent of the difference between $800,000 and the actual sale price.
f.Otherwise by way of property settlement, the father will pay to the mother the sum of $390,000 less 35 per cent of the sale costs associated with the auction including real estate agent’s commission, any expenses of the auction so-called, and the legal costs. Otherwise each of the parties shall retain as against the other any interest he or she may have in any property in his or her possession or control including any entitlement to superannuation in any fund in respect of that person.

(10.)In accordance with the father’s withdrawal of his application for Child Support departure that application is dismissed.
(11.)The matter is removed from the Pending Cases Inventory.
(12.)All material produced by subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
(13.)Any material produced by subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
(14.)Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 975 of 2007

MR WARNOLD

Applicant

And

MS BLEAUCHAMP

Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before me for a determination of issues under both the Family Law Act 1975 (Cth) in relation to the child of the parties and also under the Domestic Relationships Act 1994 (ACT) in relation to the division of property between the parties.

Background

The father was born in July 1955 and the mother was born in January 1961 and they are aged 53 and 48 years respectively.
The father submits that the parties met in April 1998. The mother contends that the parties met in January or February 1997 and formed a relationship in the latter half of 1997.
The mother became pregnant with the child in September 1998. The father was present at the birth of the child.
The mother moved into the T, ACT property between November or December 1998 (according to the mother) or February or March 1999 (according to the father.)
There was considerable dispute between the parties as to the time they shared a bedroom in the T property. The father submitted that the mother shared his room from the time she moved into the property in early 1998 until late April 1999. The mother stated in cross‑examination that she had shared a bedroom with the father until she had become heavily pregnant and moved to the spare bedroom for a brief period, whereafter she moved back into a shared bedroom with the father and maintained that shared bedroom until either 2003 or 2004.
The father stated on oath that the parties did not have a sexual relationship after the child was born nor a social relationship and that they led “separate lives” but that they would maintain shared care of the child. The mother stated on oath the parties had had a sexual relationship until the first year of the child’s life and that they had attended a number of social activities over the course of their relationship until the parties’ separation in August 2005. The father, upon being shown several photographs by Ms Godstchalk of the parties together at social occasions between 1999 and 2005, conceded grudgingly in cross-examination that he had attended some events with the mother, but maintained that he was not in a relationship with her during the relevant period.

Separation and the “incident of 14 August 2005”

The parties agree, notwithstanding the father’s position about there not being a domestic or de facto relationship between him and the mother, that the father left the T property in either late July or early August 2005. The father moved into the R property at that time.
Both parties gave evidence in their respective affidavits about an incident occurring on 14 August 2005 at the T property involving both parties and the child. A brief account of the events as alleged by the parties follows.
An argument arose between the parties arising out of an apparent disagreement as to the time the father would spend with the child that afternoon. The father gave evidence that there was agreement between the parties that he and the child would spend the afternoon from 12.30pm.[1] The mother gave evidence that the father had phoned her that day and had stipulated that he have the child from 1.00pm.[2]
[1] Affidavit filed 5 February 2009 of the father [24].
[2] Affidavit filed 20 February 200 of the mother [45].
The events took a significant turn for the worse when argument broke out between the parties somewhere between 1.30pm and 2.05pm that day. The argument centred on both parties having different perspectives on the ability of the other parent to control the time that the child spent with the father that day and more generally. The argument left the child, who was present at the time, quite upset and crying.
The father submits that, following a comment from the mother requesting that the child be returned to her by 3.00pm that day,[3] he briefly left the T property to go outside to calm the child.[4] He then attempted to re-enter the house but had the door slammed in front of him by the mother, resulting in his cutting his arm badly.[5] The father submitted that he then went to the hospital[6] and later returned to the house to clean up the broken glass and blood and thereupon found the police waiting for him.[7]
[3] Affidavit filed 5 February 2009 of the father [26]; Affidavit filed 20 February 2009 of mother [48].
[4] Affidavit filed 5 February 2009 of the father [29].
[5] Affidavit filed 5 February 2009 of the father [30] & [31].
[6] Affidavit filed 5 February 2009 of the father [32].
[7] Affidavit filed 5 February 2009 of the father [33] & [34].
The mother gave evidence that the father attempted to throw a drink bottle after she requested that the child be returned to her by 3.00pm and that he then tried to forcibly remove the child from his bedroom.[8] In her version of events, the father then took the child outside, stopped and put the child down. The child was subsequently taken back inside the house by the mother, with the door being shut behind her.[9] The mother then gave evidence that the father smashed one of the glass panels on the door and tried to open the lock.[10] A further altercation then occurred whereby the father made threats to kill the family dog, to throw the Mother “into the garbage” and to throw away the child’s toys as he “didn’t deserve them.”[11]
[8] Affidavit filed 20 February 2009 of the mother [49].
[9] Ibid.
[10] Affidavit filed 20 February 2009 of the mother [50].
[11] Affidavit filed 20 February 2009 of the mother [52].
Evidence was presented by the father that no charges were laid against him by the Australian Federal Police.

Contributions and working history of the parties

In 1986, the father purchased a property in T. The father submits that the mortgage on that property was paid out before the parties met each other in 1998.
In 1994, the father purchased a professional practice in the ACT for the sum of $210,000 and has worked in that practice since that time.
The mother gave evidence that she returned to part-time work, initially for two half days per week, when the child was eight months old.
The father submits that the mother started working about 30 hours per week in 2003. The parties agree that the mother won a three year full‑time contract (on 1 April 2005) for work at approximately 35 ½ hours per week, through a shelf company M Pty. Ltd established by the father created for the purpose of her drawing income.
In 2003, the father purchased a house in R for the sum of $470,000. The father submitted that he purchased this property with a view to its being suitable for the mother and the child living in it until “more permanent arrangements could be made.”[12]
[12] Affidavit filed 5 February 2009 of the father [18].
The parties gave evidence of very different positions in terms of financial contributions made during the course of the relationship. The father gave evidence that between the period when the mother moved into the T property (in his evidence early 1999) and 2003, the mother contributed nothing to household expenses and that he was the sole provider of finance for the household.[13] The mother maintained that she had contributed money over that period for a number of different expenses such as groceries, significant maintenance work for the T property including plumbing and electrical problems, clothing and entertainment for the child.[14] In general terms, I preferred the evidence of the mother on this matter. The father was almost ritualistic in his minimisation of the mother’s contributions. It would be reasonable to say that the mother made the most out of what she had done but in the end I accept that she presented a more accurate picture than that presented by the father. I am not suggesting any active attempt by the father to mislead but rather an inability on his part to now recall and give credit for what the mother did and continues to do.
[13] Affidavit filed 5 February 2009 of father [95].
[14] Affidavit filed 20 February 2009 of mother [35].

Table of “agreed” Assets and Liabilities

Ms Godstchalk for the mother helpfully submitted the following “agreed” Assets and Liabilities Statement as at the date of hearing. Mr Brzostowski SC contributed particular updated figures on behalf of the father on the second hearing day, 12 March 2009:

Item	Agreed Value	Father’s valuation	Mother’s valuation
*Assets:*
T property	$800,000.00	-	-
R property	$595,000.00	-	-
Professional practice of the father	-	$264,000.00	$282,077.00
Household contents	-	$10,000.00	-
Total superannuation interests of Father and mother[15]	-	Father = $192,998.00 Mother = $72,188.00	-
Total Assets	$1,395,000.00	$539,186.00	$282,077.00
*Liabilities*
Mortgage	-	$567,790.00[16]	$564,531.88
Loan owed by the father to his brother	-	$55,331.00	Not admitted
Personal Tax owed by the father for 2006/07	-	$83,270.00 @ 41.5% tax rate = $30,263.30	Not admitted
Personal Tax owed by the father for 2007/08	-	$90,000.00 @ 41.5% tax rate = $24,026.60	Not admitted
Unpaid rates	$2,260.45	-	-
Unpaid school fees	-	$3,000.00	Not admitted
Total Liabilities	$2,260.45	$680,410.90	$564,531.88

[15] Mr Brzostowski SC updated the figures in this row on the second hearing day, 12 March 2009.

[16] Mr Brzostowski SC updated this figure on the second hearing day, 12 March 2009.

For the reasons that follow hereunder, I conclude that the Total Assets and Liabilities of the parties is as follows:

Assets
T property	$800,000.00
R property	$595,000.00
Professional practice of the father	$282,077.00
Household contents	$5,000.00[17]
Total Assets =	$1,682,077.00
Liabilities
Mortgage	$567,790.00
Unpaid rates	$2,260.45
Total Liabilities =	$570,050.45
*Total Assets – Total Liabilities =*	*$1,112,026.55*

[17] Admission of $5,000.00 against interests as nothing proved.

Child Orders

The orders that each of the parties sought about the time that each would spend with their child are set out in endnote 1 and endnote 2 of the father and mother respectively. In essence, the father sought that the child should spend equal time with each of his parents. The mother sought that the child should spend most of the time with her but should spend each alternate weekend from Saturday morning until Monday morning with his father, and each Thursday overnight in the alternate week to the father’s weekend. Each of the parents agreed that the holidays should be equally divided between them.
The arrangements at present include the somewhat unusual fact that because the mother starts work earlier than the father, generally speaking, he is the one who takes the child to school and because the mother finishes her work earlier than the father she is the one who picks him up after school.
The parents sought generally that there should be equal shared parental responsibility, although the mother, as appears from the orders that she is seeking, proposes that she should solely be able to determine matters relating to the medical treatment of the child. This arises out of a fairly major dispute between the parents about the sort of treatment that should be undertaken for allergies from which the child suffers.

Equal shared parental responsibility

Although this is the presumption under the Family Law Act 1975 (Cth), this is not a matter in which I would ordinarily have agreed that it was appropriate for these parents to have equal shared parental responsibility. They have demonstrated (and most graphically during the cross-examination of the father, exemplified) that there are a number of fairly major matters relating to the child about which they cannot agree or cooperate. There can be no question that each of the parents has the child’s best interests at heart as he or she perceives them to be and each believes that the child derives benefit from being with the other parent. They live relatively proximate to each other, at least at present, and they share many common goals for the child’s upbringing and development. However, absent from their parenting is the ability to work calmly and in a considered way together on matters relating to the child. Each of the parents, during the course of his or her cross‑examination, demonstrated an inability to accommodate the views of the other parent. I do not attribute blame to either but merely make the comment.

Nevertheless, notwithstanding these differences which in my opinion would ordinarily preclude the making of an equal shared parental responsibility order, each of the parents seeks it except in so far as it relates to the medical issue. I will accordingly make the general order but I propose to make the orders sought by the mother giving her responsibility for matters relating to the child’s health care for reasons which I will now set out.
As appears from the Reasons for Judgment appearing hereunder, in my opinion, the child should live primarily with his mother. I am satisfied that matters relating to the child’s health will continue to be an area of controversy between the parents. I do not accept the father’s position that the mother’s housekeeping is so sloppy that it is a physical danger to the child (at least that is the impression he appeared to want to convey). I do not necessarily accept the mother’s position that her view about what should occur should prevail without any further consultation. I regard her attempt to influence Dr L, the specialist in clinical immunology and allergies, as inappropriate. I regard the father’s unwillingness to consider medication inappropriate.
I have no medical evidence before me which would enable me to conclude that either parent has a sufficient specialised knowledge himself or herself to qualify as the final expert on what would be best for the child. I do observe that the controversy between them is, in itself, unhealthy.
Because of my determination that the child should live primarily with his mother, in my opinion, it follows that she should be the one who should have, in default of there being any other distinguishing matter between the parents, the obligation and the right to determine what would be best for the child’s health needs.
This does not preclude her from having the obligation to consult with the father. This does not preclude her from having the obligation to report to the father about proposed treatment and treatment that has been undertaken. It does not preclude the father from, in the case of emergencies, making appropriate decisions.

Equal time with each parent

The practical reasons that I have outlined above particularly relating to the parents’ inability to reach agreement on many things leads me to conclude (having duly considered it) that this is not a matter in which it would be appropriate for the child to spend equal time with each of his parents. Although I pressed Mr Brzotowski SC to tell me why it was that the child’s wellbeing and best interests would best be served by his spending equal time with his parents (as opposed to spending substantial and significant time or other ways of enabling him to have a meaningful relationship with each of his parents) no compelling or persuasive reason was forthcoming.
The best that Mr Brzostowski SC could articulate in the circumstances was to argue that the child had thrived so well on the present arrangements that it indicated that he was ready to spend more time with his father. The logical next step, however, did not follow, which was that this involved an equality of time as opposed to more time. Even if the initial premise were to be accepted, the closest I could come to a reason for there being equal time was that there was no reason why there should not be equal time. I do not accept that is the appropriate way of approaching the matter and for other reasons which I now outline it seems to me that this is inappropriate.
Mr Brzostowski SC helpfully provided a chart showing in a fortnight how the time that the child spent with each of his parents could be divided if that time were to be evenly divided between them. Mr Brzostowski SC also set out on the same chart (at my invitation) the alternative proposal by his client about the division of time if I were not to be satisfied that it would be in the child’s best interests for him to spend equal time with both parents. Each of the arrangements proposed involves a relatively complex calendar and would require over the course of a fortnight a number of changes estimated by Ms Godtschalk at about six or seven.
Such a proposal does not accord with the recommendation by the Family Consultant in October 2007 that:
“at present the child’s needs might best be met if he continues to live with his mother and spend time with his father each morning before school for an extended weekend each fortnight Thursday overnight on a fortnightly basis and blocks of time during school holidays.”
Or by the Family Consultant again in October 2008 that:
“with respect to movement between his two homes, [the child] said “I like the arrangement – I just want things to be like that – no changes at all”… [the child] was unable to contemplate any alternative arrangement.”
However, the child also expressed to the Family Consultant that “home meant both homes.”
Although the arrangements proposed by Mr Brzostowski SC for the division of time equally meant that time was relatively predictable if the calendar were in front of the person at any one time, no suggestion was forthcoming as to why those arrangements would actually be better for the child’s development.
In addition, I remain unconvinced having read the affidavits and listened to the evidence, that the father is either able or willing to put time with the child ahead of his work needs as he has suggested he is. I do not doubt that the child quite likes going to his father’s place of work and I also accept that (in my opinion, quite extraordinarily) the child finds great delight and enjoyment in doing mathematics. I nevertheless accept that it was the parents’ choice that the child’s primary care when he was young should be with his mother and that the arrangements that were then put in place have caused the child to thrive. I do not in any way seek to diminish the positive influence the child’s father has had in his development, but equally, I do not accept that that influence must necessarily be improved by a further exposure of time in itself. It does not follow that more time necessarily leads to further improvement.

Substantial and significant time with each parent

By the same token it is appropriate, within the somewhat strange definition of “significant and substantial time” given under s 65DAA(2)(c) in the Family Law Act1975 (Cth), in my opinion, that the child should spend such time with each of his parents. This would involve his school, his holidays, his recreation, his weekends and his routine activities such as eating and sleeping. In such circumstances, it would ordinarily seem to me to be appropriate that he should spend from after school on Thursdays until the following Monday with his father to facilitate that participation, particularly in school. The mother’s proposal provides for a Thursday night on the weekend when he is not with his father, but this does not actually involve his father in attending at the school. Nevertheless neither parent sought that the arrangement that I have set out above and in the circumstances I would not seek to impose it.
I invited both counsel to advise me of any variation to the arrangements proposed by their client if I should not be prepared to accept their primary requests.
Mr Brzostowski SC provided a further chart which provided one less day than one half of the time with his client and, after some prompting, the mother agreed that the time that the father and the child spent together might be extended to include the Friday night from after school until the Monday morning. Neither party proposed the arrangements I set out above, although in some respects, in my opinion, it would be superior to either of the plans devised by the parties.
I propose to make orders in accordance with the mother’s amended proposal to include the Friday night until the Monday morning. However, if the parties are in agreement after reading my judgment that it might be extended to the Thursday then (in lieu of the one off Thursday in the following week) I would be prepared to make orders to that effect. I note this would be in accordance with the original recommendation of the Family Consultant in October 2007.

Primary and secondary considerations under s 60CC of the Family Law Act 1975 (Cth)

In coming to that conclusion, I have taken account of a number of matters under s 60CC of the Family Law Act 1975 (Cth). In particular I have noted and verified that there are no matters relating to family violence which as a primary consideration should be taken into account. The incident of 14 August 2005 seems to me to be a regrettable aberration in what was otherwise a relatively peaceful, if not harmonious, relationship between the parties. There is no indication that anything of a similar sort is likely to recur.
I have also taken account of the views of the child as expressed and I note that the child has been said to be intelligent and mature by the Family Consultant and by each of his parents. It would be unreasonable not to at least take into account in some way his present views. In saying this, I do not wish it to be thought by either parent that if the child were to change his views that that must necessarily bring about a variation in the orders that I make. The child is a little boy who should not have to make decisions which his parents, as adults who are responsible for him, cannot make themselves. The child should not be obliged to be the referee or arbitrator between his parents. He should be entitled to have fun in his life and to enjoy the time he spends with each of his parents without wanting or being obliged to make decisions between them.
I am satisfied that each of the parents has a good relationship with the child. Each of them to some extent has a different style and these styles, if the parents had remained together, may well have been complementary (not “complimentary” as the Family Consultant suggested in October 2007). Notwithstanding the contrast and the possible variations in parenting that might result, there is no evidence that these contrasts or differences have in any way affected the child’s wellbeing or happiness. Each of the parents, to his and her credit, acknowledges the importance that the other parent has in the child’s life and neither seeks to exclude the other parent. Having said that, the father was unimpressively dismissive of the mother’s parental abilities saying that they were "essentially limited to ensuring that the child has a full stomach and ensuring that she can make him laugh.”[18] Significantly, however, his proposals at their highest involved the child spending as much time with his mother as with the father. That is a significant vote of confidence! Their personal differences preclude a more cooperative relationship, but nevertheless, the child is lucky to have two parents who care for him as his parents do.
[18] Affidavit filed 5 February 2009 of the father [80].
I am satisfied that each of the parents is willing and able to foster a continuing relationship with the other parent. This is demonstrated in part by the willingness of each of them to cooperate over picking up and dropping off the child at school.
Although there is no specific evidence about the likely effect of any change in existing arrangements for the child, this has both negative and positive connotations. I make the following observations:
a)As I have remarked previously, there is no evidence that a change would necessarily be for the child’s benefit if there were to be a move towards equal parenting; and
b)There is no evidence to suggest that if there were any immediate change that that would adversely affect the child’s wellbeing. In the circumstances, I am not prepared to determine that either change or no change would be particularly to his benefit or detriment.
I regard the arrangements proposed by the father as presenting some difficulty and some impracticability. I accept that by having a calendar perpetually in front of the parties and in front of the child all of these things might be overcome, but it seems to me that children should be entitled to live their lives with a certain degree of stability and predictability by ordinary means, not by rule of calendar. It also seems to me that the parents will benefit from having predictable and easily recognisable time for themselves and time for themselves with the child.
Each of the parents is quite capable of looking after the child. There are no suggestions (of any substance) that either parent is not capable of looking after the child physically. To the extent that it is suggested by the father that the mother is in some ways not appropriate in her cleanliness or organisation I reject those contentions and accept the mother’s evidence in relation thereto. I found her evidence on these matters believable and the father’s less so.
I accept that each of the parents provides different emotional and intellectual support for the child and this is reflected in the arrangements that I have proposed above.
There are no particular cultural matters that bear upon the arrangements that should be made.
If I had to distinguish between the parents as to their attitudes to their responsibilities I would do so on the basis that in my opinion the father’s attitude seems more father‑centred than child‑centred. The father exhibited, both in his responses particularly in the witness box and in his affidavit material, a certain dismissiveness about the mother and a certain assertiveness about his own superiority which in the circumstances seemed to me to be inappropriate. The mother, for her part, exhibited a level of stubbornness and a desire to have her own opinions vindicated. But this may have been in response to the father’s approach to matters. In any event, there is no doubt that each of the parents is concerned and reliable in his or her care of the child.

Conclusion as to child orders

It would be unreasonable to say that the matters bearing upon my decisions in relation to the child orders are anything other than finely balanced. In the end, however, having had the benefit of observing both of the parents in the witness box and observing their reactions when they were not in the witness box, I am satisfied that it is balanced appropriately. Relying substantially upon the matters set out in the Family Reports of October 2007 and October 2008 and in part upon the child’s wishes, I believe that the orders that I have proposed to make are the most appropriate ones for the child’s best interests. It is his best interests that I must place as my paramount consideration.

Property

The proceedings in relation to property are brought under the Domestic Relationships Act 1994 (ACT) cross‑vested to this Court in accordance with s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).

Jurisdictional question: whether a “domestic relationship” existed between the parties?

Mr Brzostowski SC opened this matter on the basis that the “relationship” between the parties did not constitute a domestic relationship within the terms of s 3(1) of the Domestic Relationships Act 1994 (ACT). Section 3 provides:
(1)In this Act:
domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
Mr Brzostowski SC contended (I summarise without quoting) that the “relationship” between the parties was a unilateral relationship in which all of the personal or financial commitment and support had come from the father. Accordingly, there was not a domestic relationship or in fact a “domestic partnership” as described in s 3(1) of the Domestic Relationships Act 1994 (ACT) and as defined under s 169 of the Legislation Act 2001 (ACT). Mr Brzostowski SC supported his comments with reference to the Hansard of the debate in relation to the proposed Bill.
Before turning to Hansard, one construing the legislation should look to see what the plain meaning is. The plain meaning, as I suggested to Mr Brzostowski SC, is that “domestic relationship” means “a personal relationship between two adults in which one provides personal or financial commitment…” (emphasis added). If the meaning for which Mr Brzostowski SC contended were to be the intended meaning of the ACT Legislative Assembly, then a reasonable expectation is that the word ‘one’ should have been replaced by the word ‘each.’ This would have implied reciprocity or bilateralism in the arrangement. The choice of the word ‘one’, in my opinion, negates such an inference. There is no need to resolve any ambiguity with reference to Hansard because there is none.
Notwithstanding the contention of Mr Brzotowski SC about the unilateral material benefit provided from the father to the mother (in my opinion, this was not proved to be the case) I find that there would still have been a “domestic relationship.” This acts as a trigger for the purposes of providing this Court with jurisdiction to adjust property interests in accordance with s 15 of the Domestic Relationships Act 1994 (ACT).

Financial or non-financial contributions under s 15 and the “nature and duration of the relationship”

Mr Brzotowski SC also contended that the Court must examine the “nature and duration of the relationship” [19] (emphasis added) in determining how to make an order adjusting the property interests of the parties. Section 15 provides:
[19] Domestic Relationships Act 1994 (ACT) s 15(1)(a).
(1)On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either of both of the parties that seems just and equitable to it having regard to –
(a)the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19(2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
I note that this provision is a unique requirement that differs from other de facto property law legislation, such as the Property (Relationships) Act 1984 (NSW). Under the NSW legislation, the Court is not required to examine the nature of the relationship per se in assessing how property adjustment orders should be made, [20] rather the Court should look at the financial or non-financial contributions, such as the homemaker or parent contributions.[21]
[20] Indeed, the reference in s 4(2)(b) in the Property (Relationships) Act 1984 (NSW) to the “nature and extent of common residence” is only a relevant factor in the initial jurisdictional question of establishing the existence of a de facto relationship.
[21] Property (Relationships) Act 1984 (NSW) s 20(1)(a) & s 20(1)(b).
Mr Brzotowski SC submitted that there is a spectrum of people that ranges from those that “live together as a couple in a genuine domestic basis” or in a “marriage-like relationship” and those that simply and altruistically voluntarily provide another person with assistance; the latter he submitted being where the father was on that spectrum. Consequently, I surmise on behalf of Mr Brzotowski SC, such unilateral altruism that the father submits he displayed towards the mother would warrant the Court to consider that no property adjustment order would be appropriate in the circumstances.
I note that there is a dearth of case law regarding the interpretation of the words “nature of the relationship” in s 15(1)(a). In the ACT Supreme Court decision of McKenzie v Storer,[22] her Honour Stone J considered the interpretation that should be given to the words “domestic nature” in the context of s 3(1) and also gave an in depth historical account of the history of the development of the Domestic Relationships Act 1994 (ACT), including an analysis of salient discussion papers and Hansard debate that was available at the time the Bill was introduced. I do not replicate that historical analysis but note the following statement of Her Honour:[23]
“It is plain that the Act was intended to have a broad application but it must be that the phrase, ‘support of a domestic nature’, has some operation, and that necessarily must be to exclude relationships that do not have this quality. The term, ‘domestic’ is not defined in the Act or in the Legislation Act 2001 (ACT). The Macquarie Dictionary definition includes ‘having to do with the home, the household or household affairs’.”
[22] McKenzie v Storer [2007] ACTSC 88.
[23] McKenzie v Storer [2007] ACTSC 88, [63].

In the ACT Supreme Court decision of Ferris v Winslade,[24] his Honour Cooper J noted with respect to s 15 of the Domestic Relationships Act 1994 (ACT), that:[25]
“… [it] is substantially different to s 20 of the [Property (Relationships) Act 1984 (NSW)]…that the legislature intended that the Court should not be limited in the fashion provided for in the [Property (Relationships) Act 1984 (NSW)] is apparent from the explanatory memorandum accompanying the Domestic Relationships Bill.”
[24] Ferris v Winslade [1998] ACTSC 172.
[25] Ferris v Winslade [1998] ACTSC 172, [27].
I turn to the Explanatory Memorandum for the Domestic Relationships Bill 1994. The Explanatory Memorandum provides:[26]
The requirement that the court consider the nature and duration of the relationship goes further than the NSW legislation on de facto relationships. It involves consideration of such matters as:
·the degree of mutual commitment, interdependence and arrangements for support;
·whether there were children of the relationship and their care;
·whether the parties lived under one roof or otherwise;
·the ownership, use and acquisition of property; and
·the performance of household tasks.
[26] Explanatory Memorandum, Domestic Relationships Bill 1994 (ACT) 7.
I note that the above list is inclusive and suggestive rather than exhaustive.
It seems to me that the holistic purpose of s 15 is to provide the Court with a discretionary power to make a property adjustment order that is “just and equitable” in the circumstances having regard to the aforementioned relevant factors in s 15(1)(a) to s 15(1)(f). Consequently, it also seems to me obvious that if the Court exercises its discretion and makes such an order, pursuant to s 15(1)(a), it should take into account factors of the type described in the Explanatory Memorandum.
For the reasons that follow in my opinion hereunder about the contributions of each party, I consider that the nature of the relationship involved significant contributions on both the part of the father and mother and these contributions are relevant factors to be taken into account under s 15.
In this matter, the father was intent on diminishing any contribution made by the mother. In this regard, I accept that the mother has made financial contributions (although not as substantial as the contributions made by the father.) I accept that the mother has been the primary homemaker and parental caregiver before and after the separation of the parties and that this is a substantial benefit which should be given proper faith and credit. I also accept that by adopting the primary parenting role the mother has enabled the father to pursue his business activities to an extent to which he could not have done if he had been obliged to fulfil that role himself. In this regard, I accept the mother’s evidence about the hours the father worked and the work that she did in preparing meals and other household tasks and looking after the child which enabled him to do this.
I accept that the time that the mother spent away from work and then in working for diminished hours as having had an effect on the development of her career, although the precise extent of it is not entirely clear. There was no similar impediment to the father’s advancement in his business. I further accept the mother’s evidence about the things that she did of a non-financial or an indirect financial nature in relation to the improvement and conservation of the T property.[27] I note she was not cross-examined about these matters.
[27] Affidavit filed 20 February 2009 of the mother [17], [37], [55], [61], [63] to [67] and [71].
However, I also accept there was an element of reconstruction on the part of both of the parents about their particular contributions. On the mother’s part, this contribution was evident in that her relatively meagre earnings appear to have been spread over a very wide area and I accept the father’s assertion that her earnings were supplemented (probably substantially) by him. That is not to suggest that such an expectation by her and expenditure by him was in either case unreasonable.
For his part, the father seemed to forget the social activities which represented part of their domestic relationship and to concede his involvement but grudgingly. Further, he seemed to see himself as an almost sole financial provider and I do not accept that this was so.
My consideration of these matters would lead me to conclude in relation to s 15 of the Domestic Relationships Act 1994 (ACT) that the father had made substantially greater financial contributions than the mother. This included the house in T which was in existence before the relationship began and his professional practice. The mother’s initial financial contribution was but vaguely proved and does not substantially affect my overall determination. That does not mean, however, that those were the only contributions made and I accept that the contributions made by the mother in the capacity of homemaker and parental caregiver and for the welfare of the child were substantially greater than those of the father. That is not to say that the father did not participate in the care and upbringing of the child. In many respects, he has contributed more than many other fathers do in the community. But as with finance in favour of the father so with parenting and homemaking with the mother. The greater contribution was made in the former case by the father and in the later case by the mother. I see no reason to differentiate between the two sorts of contributions. The contributions made as a parent and as a homemaker should not in any way be compared unfavourably or be regarded as qualitatively less than contributions made financially.
Moreover, notwithstanding Mr Brzostowski SC’s attempts to suggest that the relationship between the parties was of such an ephemeral nature that there could not be any implied “partnership” between them, it seems to me that the very lack of romantic spark or fire may well give greater credence to the proposition that the parties had sensibly and calculatedly determined that the care of the child and the maintaining of the household would be undertaken, as indeed it was. In many respects, I should not make any determination that the considered views of parents about how children are to be raised and how they are to divide the workload between them both as to earning money and to raising the child and keeping the house should be one way or the other. My determination in this matter does not depend upon any implied partnership but to some extent the matters that I have set out above take account of the requirement under s 15(1)(a) of the Domestic Relationships Act 1994 (ACT) that I should have regard to the “nature and duration of the relationship.”
Ms Godstchalk submitted that the principle as articulated in the Full Court of the Family Court decision of Parshen & Parshen[28] relating to moneys received over the course of the parties relationship should be taken into account. In Parshen & Parshen, their Honours Ellis, Finn & Purdy JJ held in the absence of evidence to the contrary, it should be inferred in property settlement proceedings that moneys howsoever received by a party during the course of the parties’ cohabitation have been used by that party for the benefit of the family unit, and thus constitute a financial contribution by the party who received the moneys in question.[29]
[28] Parshen & Parshen (1996) 136 FLR 189.
[29] Parshen & Parshen (1996) 136 FLR 189, 195.
This proposition is consistent with my analysis of the position of the parties as set out above but does not add to it.
The decision of the Full Court of the Family Court in Lee-Steere & Lee-Steere[30] to which I was referred by Mr Brzostowski SC does not assist me. It is not a bench mark and it does not establish any parameters. Each case must be considered on its own merits and each arrangement between parties must be assessed in the light of the circumstances of the particular parties in the particular circumstances of the parties. I have set out above my resolution of the evidence of the parties and how in my opinion it should be construed.
[30] Lee Steere & Lee Steere (1985) FLC 91-626.

Conclusion as to matters under s 15

Balancing those matters as best I might so far as contributions are concerned, it seems to me that I should regard the father as having contributed 75 per cent and the mother as 25 per cent. This conclusion is necessarily my personal conclusion and others may differ from it. However, I have had the unique benefit of hearing the parties’ evidence both orally and in writing and of seeing them in court. I have taken account not only of their words but also their demeanour in reaching the conclusions I have.

Matters to be taken into account under s 19(2) as to maintenance orders

I am obliged, however, to turn to matters under s 19(2) of the Domestic Relationships Act 1994 (ACT) in accordance with the prescription contained in s 15(1)(d) of that Act.
The matters under s 19(2), in effect, deal with the total financial resources and liabilities of the parties. The section is very similar in form to s 75(2) of the Family Law Act 1975 (Cth). The jurisprudence surrounding the application of s 75(2) has been long established in the Family Court.
In summary, the factors which should be taken into account under s 19(2) are as follows:

Income, property and financial resources of each party

a)There is a difference in the earning capacity of each of the parents and it is unlikely that the gap between the parents will close. Although it was suggested by Mr Brzostowski SC that their incomes were nearly equivalent, a difference of approximately $30 000.00 would represent nearly one third of the mother’s income. I do regard that difference as significant.
b)Moreover, in the future the mother will have a continuing obligation to have a larger share of the care of the child. Although the father in his submissions had sought that that care would be shared equally that is not the conclusion to which I have come.
c)The mother’s superannuation entitlement is but a fraction of the father’s and I have declined to take the superannuation into the property pool. Hence it should properly be dealt with as a resource in the case of each of the parties under s 19(2). I note in this regard that this is a matter in which the parents were not agreed that they should opt into the new de facto property regime provisions under the Family Law Act 1975 (Cth) which would have enabled their superannuation interests to have been split. As such, in my opinion, it is appropriate and proper to regard the superannuation as a resource rather than as property for division between the parties. I note, however, in this case, although the evidence about this matter was somewhat scant, that each of the funds is an accumulation fund and hence the amount in the fund is reasonably representative of its value. In many respects, it is equivalent to property and in those circumstances I am entitled to treat the difference between the two funds as having an effect. The difference between the funds represents approximately 11 per cent of the total property pool as found by me.

Financial needs and obligations of each party

d)On the other hand, the father’s potential liability for tax cannot be overlooked. For the reasons I have otherwise set out below, I do not regard it as a liability properly to reduce the asset pool. Nevertheless, the fact that he will have to pay taxes is as certain as death. The amount he will have to pay is less certain and it might be said that it was a matter almost peculiarly within the father’s ability to rectify if he wanted a more precise calculation taken into account. I accept that he will have a liability. It may well be the liability that Mr Brzostowski SC was urging upon me as being able to be calculated from the information that Mr Brzostowski SC supplied. However, no evidence was given about the father’s personal circumstances, nor given about any carry‑forward losses that may have been attributable to him. In the other direction, it should be said no evidence was given about any potential penalty or interest that may be chargeable to him because he has failed to pay his tax. Equally, his failure to pay tax may in some cases be regarded as a circumstance the consequences of which he should bear. It is not necessary for me to make a determination about that in this matter. It was open to the father (particularly as this was a matter identified by me in an earlier order made in August 2008) to seek to reach agreement with the mother about his tax liabilities. His failure to do this even up to the day of the hearing has left a situation where I am being asked to make determinations based on calculations without evidence. I am not prepared to assume in circumstances where the father might reasonably claim a level of expertise that I should make determinations (as Mr Brzotowski SC suggests) without any qualification. Leave was sought and granted to further amplify the material provided by the father and that leave ultimately was not taken up. I note the father asserts that he has been unable to pay the tax, but inability as in so many cases is a matter of degree. The father’s outstanding tax is a factor which operates to his advantage under s 19(2).

Proposed sale of the father’s professional practice

e)The father also asserted (and I also eliminated from the pool) that the liability he says he will incur in paying 15 per cent of “something” to one of his employees if he should sell the business. The accountant who provided the valuation for the professional practice took account of this in a way which would have given, as a liability to the father, 15 percent of the increase in value of the goodwill of the business. The father said this was wrong and had resulted from a miscommunication with the valuation expert. However, the father was unable to be very much more definitive about what the amount should be calculated by reference to, whether it be the gross sale price, the net sale price or the goodwill. The father’s evidence on this matter was so unsatisfactory that I cannot possibly make a determination about any fixed amount to be deducted. It is not the amount deducted by the expert as the father claims. In addition, although this hearing occupies in some ways a position as a snap shot of the financial position of the parties, there is no apparent or present proposal to sell the practice. Hence the amount in any event is not capable of precise construction. An analogy between the way in which the Family Court deals with Capital Gains Tax (for example see Rosati & Rosati[31]) is appropriate here. I am not satisfied in this instance that there is necessarily going to be a determined or even determinable benefit that will be paid. I am not satisfied about the legal structure which would necessitate such a payment. I am not satisfied as circumstances exist the father may not be able to disclaim payment. The father’s lack of certainty in identifying what was to be given to the employee would suggest that there has been no meeting of the minds between him and the employee even if there were a proper contractual basis or in other words consideration passing between them for some obligation on the part of the father to make a payment of sorts. I accept that the father presently regards it as a moral requirement on him to make a payment to the employee, but the terms of it and its timing are matters beyond the evidence at this point. It is a factor, but not a strong factor, which I should take into account in favour of an adjustment for the father under s 19(2).

Loan between the father and his brother

f)Finally there is the question of the ‘loan’ asserted to be owed by the father to his brother. The father’s brother’s affidavit was filed late, notwithstanding that its subject matter was a matter of controversy. Annexed to it was a balance sheet which was asserted by the brother to have been prepared by the father. No claim has apparently been made in respect of the alleged debt since the family business (partnership) was brought to an end apparently about 1994. That may well have an effect on the legal enforceability of any claim in any event.[32] In any event, allowing that there might be some debt which is to be enforced, how it arose and circumstances in which it might be enforced and its calculation are matters of some difficulty. The balance sheet unexplained does not provide information about how the brother paid money into the business. It might be surmised that this represented his share or part of his share of the proceeds of sale but the composition and explanation for the balance sheet remains a mystery. Again, this is a matter and was a matter peculiarly within the knowledge of the father and his failure to explain it should not be allowed to operate in his favour. I am not satisfied on the evidence as to ‘how the loan arose’.
g)Moreover in conformity with the general reasoning expressed in Af‑Petersens v Af-Petersens[33] I am not satisfied that after nearly fourteen or fifteen years the loan is going to be enforced by the brother. In such circumstances, although it represents a potential liability (possibly) for the father it is a factor which does not weigh heavily in adjustments so far as I am concerned under s 19(2).

[31] Rosati & Rosati [1998] FamCA 38.

[32] See Limitation Act 1985 (ACT) s 11.

[33] Af-Petersens v Af-Petersens (1981) FLC 91-095 (Nygh J).

Conclusion as to matters under s 19(2)

Any consideration and weighing up of these disparate elements must necessarily to some extent be an “intuitive synthesis”. As the Full Court of the Family Court has said in Pastern & Pastern:[34]
“It is in the nature of a discretionary determination that there is necessarily a gap between identifying and considering relevant factors, and expressing a conclusion as to the cumulative effect of those factors…a point would necessarily have to be reached where [a Judge] move[s] from a qualitative discussion of those factors to a quantitative reflection of them in the form of a s 75(2) adjustment [under the Family Law Act 1975 (Cth)].”
[34] Pastern & Pastern [2007] FamCA 620, [99].
His Honour Coleman J also observed in Steinbrenner & Steinbrenner [35] that “there will inevitably be a ‘leap’ from words to figures.”[36]
[35] Steinbrenner & Steinbrenner [2008] FamCAFC 193.
[36] Steinbrenner & Steinbrenner[2008] FamCAFC 193, [234] (Coleman J).
It is not the case that a percentage is added up or rounded down to arrive at a final figure.
Overall, I believe that the adjustments under this s 19(2) favour the mother and do so to the extent that the overall division of property between the parties should be on the basis of 65 per cent to the father and 35 per cent to the mother.
I have already expressed to some extent my views about why certain deductions in effect claimed by the father should be removed from the schedule. What is left therefore is property without superannuation and liabilities without the ‘loan’ due to the father’s brother or the money due by the father to an employee upon the sale of the business or the father’s taxes.
This means that the mother should receive (if the values hold (in cash terms)) about $389,209.00 which I round up to $390.000.00. The father would receive about $722,817.00 which after taking account of his professional practice ($282,077.00) would leave him with about $440,740.00. I am satisfied that such a result in all the circumstances seems to me to be just and equitable.

Child Support Departure

The father had originally sought a departure from the administrative assessment of child support payable by him but abandoned that application and it will accordingly be dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate:

Date: 24 March 2009

Endnote 1

Minute of Orders sought by the father:

Child Orders

That the mother and father have equal shared responsibility for the child.
That the child live with the parents on an equal shared care basis as follows:
a.That each fortnight the child spends alternate weekends with each parent and an equal number of nights from Monday to Friday with each parent in the fortnight, as agreed to fit in with the needs and activities of the child. In the event the parties do not agree, the child spend a weekend, the following Wednesday, Thursday and Friday and then the following Monday and Tuesday with one parent each fortnight and with the other parent on the other nights and that this arrangement alternate from fortnight to fortnight.
b.During the days of each school week that the child resides with the mother, the mother deliver him to the father’s home on the way to work and the father take the child to school.
c.During those days the child otherwise lives with the father, the mother, unless otherwise agreed, collect the child from school and the father collect the child from the mother’s home.
That the arrangements in paragraph 2 of these Orders continue during school holidays but if a parent elects to take the child away for a period of holidays which otherwise conflict with these Orders, that parent is to give the other parent at least four weeks notice, and there is to be a corresponding adjustment in favour of time with the other parent, at the parent’s request within the holiday period.
Notwithstanding these Orders arrangements for Christmas holidays are to be made so that the child spends Christmas Day with the father in 2009 and alternate years thereafter and with the mother in 2010 and alternate years thereafter. In those years when the child would otherwise spend Christmas Eve until 9.30 am Christmas Day with the mother and the rest of Christmas Day with the father. On those days when the child would otherwise be with the mother on Christmas Day and if the father is in the same location, the father may collect the child for up to two hours on Christmas Day at a time agreed between the parties.
Each party is to keep the other advised of all events of significance affecting the medical, educational, sporting, social or extra-curricular life of the child which occur while the child is with that parent.

Property Orders:

That within thirty (30) days or such other date as agreed between the parties the mother vacate the property at [T] and thereafter, the father have the exclusive use and occupation of the property.
That the father pay to the mother the sum of $50,000.00 in full and final settlement of all claims under the Domestic Relationships Act 1994 (ACT).
That unless otherwise specified in these Orders, each party retain as against the other sole ownership and possession of all items of property in the possession or control of that party as at the date of these Orders including personal chattels, real property, motor vehicles, household contents, shareholdings, interests in any business or commercial undertaking and entitlements to superannuation in the ownership or control of that party and each party indemnify the other against all claims and liabilities in the name of that party and all liabilities encumbering any item of property to which that party is entitled pursuant to these Orders.

Child Support Departure Order

That pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessments of child support payable by the father for the child such that the period from June 1999 and March 2009, the total amount of child support be set equal to the monies already paid for that period, including the value of any non-agency payments credited for that same period, with the effect that no arrears remain payable and no overpayment is created.

Endnote 2

Minute of orders sought by the mother

Child Orders

That the parties shall have joint parental responsibility for the child.
That, notwithstanding 1 above, the mother shall be solely responsible for all decisions in respect of the child’s health and ongoing medical treatment; including but not limited to the administration of immunotherapy medication as prescribed by the relevant specialist or such other medical practitioner that the mother shall consult in respect of the child’s health.
That the child shall reside with the mother.
That the child shall spend time with the father:
a.During school terms each alternate weekend from 9.30 am on Saturday until before school on Monday and overnight each alternate Thursday.
b.During school term holidays for half of each school term holiday period.
At Christmas time each year the child shall spend Christmas Eve and Christmas Day morning each year with the mother and Christmas Day night and Boxing Day with the father with changeover to occur at 3.00 pm on Christmas Day.

Property Orders:

The parties shall do all acts and things and sign such documents necessary to sell the property situated at [T] with the proceeds of sale to be applied:
a.Firstly, to pay all costs, including legal costs, rates, agent’s commission and expenses of the sale and to pay any Council, water and electricity charges outstanding in respect of the property;
b.Secondly, to pay to the mother the sum of $112,800.00 (representing 40 per cent of the value of the [professional] practice);
c.Thirdly, the balance of the proceeds of the sale to be applied:
i.Forty per cent to the mother;
ii.Sixty per cent to the father.
The parties shall do all acts and things and sign such documents necessary to sell the property situated at [R] with the proceeds of sale to be applied:
a.Firstly, to pay all costs, including legal costs, rates, agent’s commission and expenses of the sale and to pay any Council, water and electricity charges outstanding in respect of the property;
b.Secondly, to discharge the loans, secured by mortgage over the property to the Commonwealth Bank of Australia;
c.Thirdly, the balance of the proceeds of the sale to be applied:
i.Forty per cent to the mother;
ii.Sixty per cent to the father.
Except as otherwise ordered, each party shall retain all assets in their respective possession as at the date of hearing.