Webster & Webster

[2007] FamCA 1652

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER   [2007] FamCA 1652

FAMILY LAW – PROPERTY – Initial contributions – Gifts – Meaning of the words “financial resources” used in the context of s 75(2)(b) discussed – s 75(2)(o) adjustment as a consequence of prospective inheritance considered

FAMILY LAW – CHILDREN – Wishes – Where parties agree that children should have good relationships with each of them – Where wife says children should be able to make their own arrangements to spend time with the husband and that there should be no orders – Where the parties relationship conflicted and marred by poor communication – Orders made

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 61DB, 65AA, 65DA, 75(2), 79.

In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595
Jones v Dunkel 101 CLR 298

Hauff and Hauff (1986) FLC 91-747
Marriage of Rainbird (1977) FLC 90-256
Gosper (1987) FLC 91-818
Kessey (1994) FLC 92-495
Pellegrino (1997) FLC 92-789
Pearce (1999) FLC 92-844
Kelly & Kelly (No. 2) (1981) FLC 91-108
Trenerry v Trenerry (1970) 16 Fam. L.R. 406
Stephens & Stephens [2007] FamCA 680
White and White v Tulloch (1995) FLC 92-640
Hatton v The Attorney General of the Commonwealth of Australia and the Commonwealth Development Bank of Australia (2000) FLC 93-038
 Tomasetti (2000) FLC 93-023
De Angelis and De Angelis (2003) FLC 93-133
Goode & Goode [2006] FamCA 136

APPLICANT: Ms Webster

RESPONDENT: Mr Webster

FILE NUMBER: (P)SYF 2900 of 2006

DATE DELIVERED: 21 December 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATES: 24, 25, 26 October 2007 & 9 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Bridger

SOLICITOR FOR THE APPLICANT: Jo-Anna F S Moy

COUNSEL FOR THE RESPONDENT: Mr P Livingstone

SOLICITOR FOR THE RESPONDENT: Watson & Watson

Orders

1. That all prior parenting orders are discharged.

2. That the parties have shared parental responsibility for the children J born … June 1990, E born … August 1992 and S born … February 1995.

3. That the children live with the applicant wife, Ms Webster.

4. That the child S shall spend time with the respondent husband, Mr Webster, as follows:

   (a)During school term on alternate weekends commencing Friday at 6.00 m and concluding Sunday at 7.00 pm;

   (b)for one half of the end of terms one, two and three school holidays as agreed but in default of agreement the second half;

   (c)for one half of the Christmas holidays commencing at 3.00 pm on 25 December annually;

   (d)on the husband’s birthday if this happens to fall on a day when S is not otherwise due to spend time with the husband, commencing at 9.00 am and concluding at 5.00 pm if it is on a weekend, and commencing from after school until 7.00 pm in the event that it falls on a school day;

   (e)from 9.00 am to 7.00 pm each Father’s Day;

   (f)during school terms from after school each Tuesday until 7.00 pm;

   (g)on each of the children’s birthdays, if the children are not otherwise spending time with the husband in accordance with these orders, then from 9.00 am until 1.00 pm if it is a weekend day or from after school until 7.00 pm;

   (h)at such other times as the parties agree.

5. That in the event S wishes to change any of the weekend or school term periods with the husband, the wife shall notify the husband of any proposed alterations not later than 7 days prior to the relevant period.

6. That in the event S wishes to change any of the school holiday periods with the husband, the wife shall notify the husband of any proposed alterations not later than 42 days prior to the commencement of the relevant school holidays.

7. That for the next 18 months E will spend no less than the first weekend in each calendar month that S is with the husband also with her father. 

8. That each party does all acts and things and executes all documents necessary to request the Principals of the children’s schools to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the children’s welfare and education, and in this regard, both parties shall be permitted to attend any functions at the children’s school to which parents are normally invited.

9. That each party provides the other with details of his or her residential addresses and contact telephone numbers as they may be from time to time.  Should there be a change in either party’s contact details, such party must provide written notice to the other within 7 days of such change.

10. That neither party is to discuss these proceedings with or in the presence of the children.

11. That neither party is to denigrate the other party or members of the other party’s family in the children’s hearing or presence.

12. In the event S and E are spending time with the husband on their birthdays then, provided that the birthday falls on a weekend, the children shall spend time with the wife from 9.00 am to 1.00 pm, with the wife to collect and return the children for that purpose.

13. In the event S and E are to spend time with the husband on the Mother’s Day weekend, that order is suspended from 9.00 am on the Mother’s Day weekend.

14. During school holidays, orders which provide for S to spend time with the husband on weekends and during the week are suspended.

15. That within 42 days of the date of these orders, the wife shall pay to the husband the sum of $367,105.

16. Simultaneously with payment by the wife pursuant to order 15 above, the wife shall wife shall do all things necessary to cause the mortgage over the former matrimonial home to the ANZ Bank (account number …4) to be discharged.

17. Simultaneously upon the wife’s compliance with orders 15 and 16 above, the husband do all acts and things and execute all documents necessary to effect a transfer to the applicant wife of his interest in the former matrimonial home situate at and known as …, K in New South Wales.

18. In the event the wife fails to comply with orders 15 and 16 above within 42 days from the date of these orders, the parties shall do all acts and things and sign all documents necessary to cause the former matrimonial home to be listed for sale by private treaty with an estate agent at a price to be agreed between them but in default of agreement within 14 days at a price nominated by an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW Division and then do all acts and things and sign all documents necessary so as to effect a sale of the property with the sale proceeds to be applied in the following manner:

    (a)in payment of the amount due to the ANZ Bank (housing loan account number …7);

    (b)in payment of the estate agent’s commission and associated fees;

    (c)in payment of legal fees in respect of the sale;

    (d)       in payment to the husband of forty (40) percent of the balance;  and

    (e)the balance remaining to the wife from which she shall immediately pay the husband $99,927.

19. In the event that the property has not sold within five months from order 18 becoming operative, the parties will do all acts and things necessary to cause the property to be listed for sale by public auction with an estate agent and at a reserve price to be agreed between them, but in default of agreement within 14 days at a reserve price nominated by an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW division and then do all acts and things and sign all documents necessary so as to effect a sale of the property.

20. That within 42 days the wife shall deliver to the husband his … book of drawing and his jewellery referred to in the reasons for decision published in these proceedings this day.

21. That unless otherwise specified in these orders, each party is declared solely entitled to the exclusion of the other to all other property and chattels together with current and potential superannuation benefits, of whatsoever nature and kind in the possession of such party as at the date of these orders, and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

22. That in the event of either party neglecting or refusing to execute all or any necessary instruments to give effect to these orders or any of them, a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 to execute all such necessary instruments in the name of the defaulting party.

23. That pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

24. A parties’ solicitor who caused documents to be produced under subpoena shall forthwith uplift such documents and return them to their owner.   

25. Subject to any costs application all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)SYF2900 of 2006

MS WEBSTER

Applicant

And

MR WEBSTER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for the adjustment of property and parenting orders.  The parenting proceedings concern the parties’ younger two children spending time with their father. 

The applications

1. The wife commenced the proceedings when she filed an Application for Final Orders on 9 May 2005.  On 21 August 2006 the wife filed an Amended Application which contains the property orders proposed at the commencement of the hearing.  It is the wife’s case that no orders should be made concerning the children.   During closing addresses the wife submitted a Minute of Order[1] which sets out the s 79 orders she now seeks.  In essence this increases by $15,000 the amount she says she should pay the husband. Summarised the orders the wife seeks are set out below.

   [1] Exhibit “W”

   1.That within two months from the date of these orders the date of these orders the wife shall pay to the husband the sum of $115,000.

   2.That upon payment of the monies the husband to the wife all his interest in the property known as K.

   3.That upon the transfer of the K property to her, the wife indemnifies the husband in relation to the mortgage to the Australian and New Zealand Banking Group Limited account number …4 in the joint names of the parties secured over it.

   4.That the parties otherwise retain and be declared the sole owner at law and in equity to all other assets in their respective possession and control.

2. The husband filed his Response on 1 June 2006.  The majority of the orders the husband seeks are found in his Further Amended Response filed on 2 May 2007.  These are set out below:

   1.That the parties have shared parental responsibility for the children of the relationship namely, [J] born […] June 1990, [E] born […] August 1992 and [S] born […] February 1995 (“the children”) are to live with the Applicant Mother.

   2.That the children spend time with the Respondent Father:

   a.on alternate weekends commencing Friday at 6.00 pm and concluding Sunday at 9.00 pm, with the Respondent Father to collect the children from and return them to the Applicant Mother;

   b.during the short school holidays for one half of each such holiday as agreed but in default of agreement the second half;

   c.during the Christmas holidays commencing at 5.00 pm on 21 December 2007 until 9.00 pm on 14 January 2008 an in each alternate year thereafter, and from 5.00 pm on 26 December 2008 to 9.00 pm on 22 January 2009 and in each alternate year thereafter;

   d.from 6.00 pm on Friday until 9.00 pm on Sunday on the weekend immediately before Christmas 2008 and in alternate years thereafter;

   e.in the event that Easter should not fall during a period of school holidays, then from 5.00 pm on the Thursday preceding the Easter weekend in 2008 to 9.00 pm on the following Saturday and in alternate years thereafter;  and  from 9.00 pm on Easter Saturday 2009 and in alternate years thereafter;

   f.on the Respondent Father’s birthday if this happens to fall on a day when the children are not otherwise due to spend time with the Respondent Father, commencing at 9.00 am and concluding at 5.00 pm if it is on a weekend, and commencing from after school until 9.00 pm in the event that it falls on a school day;

   g.each Father’s Day, if that happens to not fall on a weekend when the children are to otherwise spend time with the Respondent Father, commencing at 9.00 am and concluding at 9.00 pm;

   h.during school terms each Tuesday evening from 6.00 pm until 9.00 pm;

   i.on each of the children’s birthdays, if the children are not otherwise spending time with the Respondent Father in accordance with these Orders, then from 9.00 am until 1.00 pm if it is a weekend day and from 6.00 pm until 9.00 pm if it is a week day;  and

   j.on week days during school term time on any day should the children so wish commencing after school until 9.00 pm.

   3.That any proposed alterations to arrangements for the children to spend time with the Respondent Father must be notified by the Applicant Wife to the Respondent Father not later than 7 days prior to such time, except in the case of proposed overseas travel which shall be notified to the Respondent Father not less than 28 days previously.

   4.That each party has the sole responsibility for making decisions about the day to day care, welfare and development of the children whilst they are in each party’s respective care.

   5.That each party does all acts and things and executes all documents necessary to instruct the Principals of the children’s schools to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the children’s welfare and education, and in this regard, both parties shall be permitted to attend any functions at the children’s school to which parents would normally be invited.

   6.That each party provides the other with details of his or her residential addresses and contact telephone numbers as they may be from time to time.  Should there be a change in either party’s contact details, such party must provide to the other within 7 days of such change, full details in writing.

   7.That both parties provide authorisation to any treating medical practitioner of the children to allow both parties to have direct access to the children’s health and medical records.

   8.That each party is to notify other of any illness or medical condition suffered by any one of the children within 24 hours.

   9.That each party has liberal telephone contact with the children whilst the children are in the care of the other parent.

   10.That neither party is to discuss these Court proceedings with or in the presence of the children.

   11.That neither party is to denigrate the other party or members of the other party’s family in the children’s hearing or presence.

   12.That the Applicant Mother is hereby restrained from enrolling the children in any extra curricular activities requiring their participation on a weekend or Tuesday after school when the children are due to spend time with the Respondent Father without the consent of the Respondent Father or an interim order of this Court.

   13.In the event the children are spending time with the Respondent Father on their birthdays then, provided that the birthday falls on a weekend, the children shall spend time with the Applicant Mother from 9.00 am to 1.00 pm, with the Applicant Mother to collect and return the children for that purpose.

   14.That the parties do all acts and things necessary to enable [J] to play cricket for [N] School and rugby for the [R] and [G] teams.

   15.That within 28 days from the date of these Orders the Respondent Husband do all acts and things and execute all documents necessary to effect a transfer to the Applicant Wife of his interest in the former matrimonial home situated at and known as [the K property] in the State of New South Wales.

   16.That at or prior to the time of such transfer the Applicant Wife do all things necessary to cause the mortgage over the former matrimonial home with the ANZ Bank (account number […]4) to be discharged.

   17.That at or prior to the time of such transfer the Applicant Wife pay to the Respondent Husband the sum of $455,000.00.

   18.Alternatively, that within 28 days from the date of these orders the parties do all acts and things and sign all documents necessary to cause the former matrimonial home to be listed for sale by private treaty with an estate agent at a price to be agreed between the parties but in default of agreement for a period of 14 days at a reserve price with an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW Division and then do all acts and things and sign all documents necessary so as to effect a sale of the property with the sale proceeds to be applied in the following manner and priority:

   a.in payment of the amount then due to the ANZ Bank (housing loan account number […]7);

   b.in payment of the estate agent’s commission and associated fees;

   c.in payment of legal fees in respect of the conveyancing work (here the parties need to appoint a solicitor to act upon the sale and this should not be the Applicant Wife’s solicitor)l;

   d.in payment to the Respondent Husband in the sum of $455,000.00;  and

   e.the balance remaining to go to the Applicant Wife.

   19.In the event that the property has not sold within five months, then the parties will do all acts and things necessary to cause the property to be listed for sale by public auction with an estate agent and at a reserve price to be agreed between the parties, but in default of agreement for a period of 14 days at a reserve price and with an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW division and then do all acts and things and sign all documents necessary so as to effect a sale of the property.

   20.That unless otherwise specified in these orders, each party be declared solely entitled to the exclusion of the other to all other property and chattels together with current and potential superannuation benefits (if any), of whatsoever nature and kind in the possession of such party as at the date of orders, and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

   21.That in the event of either party neglecting or refusing to execute all or any necessary instruments to give effect to these orders or any of them, a Registrar of the Court at its Sydney Registry be appointed pursuant to s 106A of the Family Law Act 1975 to execute all such necessary instruments in the name of the defaulting party.  That a Registrar be authorised to execute any such necessary instrument upon being satisfied by affidavit that a relevant neglect or refusal, as the case may be, has occurred.  The party in default is to be ordered to pay all reasonable solicitor/client costs incurred by the other party who is not in default, for the purpose of enforcing this order, such costs to be as agreed or assessed.

1. During closing addresses the husband increased the cash adjustment sought from $455,000 to $525,000.   Also that the wife gives him his jewellery and the book of drawings.  The wife agrees that orders may be made which give effect to the later request.  

The evidence

1. The wife relied upon the following evidence:

   ·Her affidavits filed 17 April 2007 and 31 May 2007 together with her oral evidence.

   ·Her financial statement filed 10 April 2007.

   ·Affidavit of Ms I filed 10 April 2007 and her oral evidence.

2. The husband relied upon the following evidence:

   ·His affidavits filed 13 April 2007 and 24 October 2007 and his oral evidence.

   ·His financial statement filed 13 April 2007.

3. Both parties tendered documents which became exhibits. 

4. Ms M, a Family Consultant attached to the Family Court, prepared a family report[2].  Ms M interviewed the parties and their three children on 7 March 2007.  Ms M makes a suite of recommendations concerning the parenting issues.  Ms M says:

   [2]Exhibit “X”

   34.I recommend that the parents have equal shared parental responsibility.

   35.I recommend that, in recognition of his age, there be no orders in relation to [J].

   36.I recommend that [E] and [S] live with their mother.

   37.I recommend that [E] and [S] spend time with their father as per the current arrangements but with additional time with their father during the week, such time to be negotiated between the parents, taking into account the children’s views.  In the event that the parents are unable to negotiate such time, then this should be for one day each week for dinner with the day being specified in the orders.  I note that this is a minimum not maximum time.

   38.I recommend that, unless otherwise agreed, the school holidays should be shared on an equal basis.

   39.I recommend that, should the children express a desire to spend additional time with their father or to change an arrangement, having good reason to do so, then neither parent should unreasonably withhold this, although any such changes should be negotiated directly between the parents.  This should not preclude the parent talking to the children about whether or not they might like to be involved with some special activity but such discussion should be predicated on “if your mother/father does not have other plans” or “if it is alright by Mum/Dad” and “I will ring Mum/Dad to see if it is OK”.

   40.I recommend that no negotiations about the arrangement of time or other parenting issues be permitted to occur through the children.

   41.I recommend that if the parents believe that they will be unable to negotiate special occasions, such as birthdays (children’s and parents’) then these should be provided for in orders.

   42.Unless otherwise agreed, I recommend that Christmas and Easter be provided for along the usual lines.

   43.I recommend that the children be free to communicate by telephone with each parent as they want.

   44.In the event that [E] has an occasion that requires her to return to her school at night, I recommend that she be permitted to go to her father’s home after school in order to attend from there.

5. Neither party cross-examined Ms M.  Ms M’s report is thorough and logical.  To a considerable extent her observations of the parties accords with my own.  Her report, including her recommendations warrants significant weight. 

Short history

1. The wife was born in December 1956.

2. The husband was born in September 1957.

3. The parties commenced cohabitation in either January 1988 (the husband’s contention) or January 1989 (the wife’s contention).  There is insufficient evidence which would enable me to decide this factual disagreement.  The parties agree that nothing turns upon resolution of this issue.

4. In April 1989 the parties married.

5. The parties’ eldest child, J was born in June 1990.  J is 17 years old.

6. The parties’ daughter E was born in August 1992.  E is 15 years old.

7. In February 1995 the parties’ youngest child, S was born.  S is 12 years old.

8. The parties separated on or about 26 December 2005.  Although separated, they continued living in the same home. 

9. On 4 August 2006 the husband vacated the former matrimonial home.  The wife and the children remain in residence.

10. On 8 March 2007 the wife’s divorce application was granted.

General principles for the adjustment of matrimonial property

1. The approach to the determination of an application under s 79 is well established by authority.  In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595. The process ordinarily involves a four part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s 75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.

2. In determining what order the court should make under s 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s 79(2)].  It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.

3. In Coghlan (2005) FLC 93-220 the Full Court discusses the relevant provisions of Pt VIIB including the manner in which a court should formulate the asset pool. Specifically, whether the court should effectively adopt a two pools approach, one for s 4(1) property and a separate pool for superannuation. The majority held: “We consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise).”

Chronology

1. Both parties were born in Australia on the dates mentioned.

2. In 1983 the wife purchased a two bedroom home unit at O for $65,000.  When the parties commenced cohabitation, the wife owned the home unit, which was unencumbered, a Ford Laser motor vehicle, furnishings and 1,000 AGL shares.  The wife worked fulltime as an office manager.  When the parties commenced cohabitation, the husband was employed as National Sales Manager with X Company.  He owned no assets of value.  American Express had a garnishee order against the husband’s salary, the effect of which is that at the commencement of cohabitation the husband’s liabilities are likely to have exceeded his assets. 

3. When the parties began living together, the husband moved into the wife’s O home unit.  The wife continued paying all outgoings, including utilities, while the husband, having obtained an additional part-time job, contributed his income towards the parties’ day to day living expenses.

4. In April 1989 the parties married.  Not long afterwards the wife fell pregnant.  She continued fulltime paid employment until April 1990.  The wife has not worked fulltime in the paid workforce since.  The parties agreed that provided they were able to afford to do so, the wife should stay at home and care for their children. 

5. The child J was born in June 1990. 

6. In September 1990 the parties purchased a home at A for $195,000.  The parties borrowed $175,571.96 from the Commonwealth Bank which they put towards the purchase.  The husband says that the $19,500 deposit came from his work bonuses which he deposited into the parties’ joint savings account.  The wife says that her mother gave her $20,000 which she used for the deposit.  The wife’s mother passed away in 1999 and thus cannot corroborate the wife’s evidence.  In circumstances where neither party had any savings at the commencement of cohabitation, the husband’s wages were subject to a garnishee and he had no assets of value, it is unlikely that the parties saved $19,500 in the period.  These parties have a history of living significantly beyond their earned income.  Considered together, these factors persuade me that the wife’s evidence concerning the deposit being advanced by her mother is the most likely scenario.

7. During 1990, the parties decided to renovate the A property.  In order to do so, they borrowed $50,000 from St George Bank by way of a line of credit.  The parties disagree about whether the line of credit was negotiated in the husband’s sole name or jointly.  As the A property was offered as security for the line of credit, thus making both parties ultimately jointly liable, nothing arises from their factual disagreement on this point.  The renovations were significant and involved adding a family room to the rear of the home, enclosing its front verandah, converting a front bedroom into two bedrooms, replacing the kitchen and a new bathroom. The renovations were predominantly completed by an architect, builder and associated trades people.  The wife was more closely involved working with the architect, builder and supervising the trades people. 

8. In about October 1990, the husband left X Company and started with H Company as a sales executive.  Unlike his X Company salary package, the husband’s salary package with H Company did not include a company vehicle.  As the family needed a second car they purchased then leased back a Ford Telstra which was paid from the husband’s income. 

9. In early February 1991, the wife completed the sale of her O unit.  The O unit sold for about $185,000.  As the property remained unencumbered, subject only to selling and agent’s costs, the wife received its entire sale proceeds.  I did not receive valuation evidence concerning the O unit’s value at the commencement of cohabitation.  As this transaction was completed not long after the parties commenced cohabitation I infer that the O unit’s value at the commencement of cohabitation was somewhere in the vicinity of its selling price. 

10. In February 1991 the wife paid out the Commonwealth Savings Bank mortgage which the parties had borrowed to fund their A property purchase.  The wife paid $158,070.66 in order to discharge the mortgage.  When the parties moved into the A property, they took with them the furniture and household goods which the wife owned prior to cohabitation and used at the O unit.  They did not immediately acquire any new furniture of value.

11. In October 1991 the husband commenced employment with C Company where he worked in a sales capacity until April 1993.  He resigned from C Company so as to take up a sales executive position with CS Company.  The husband worked with CS Company between May 1993 and June 1997.

12. In August 1992 the child E was born.

13. During 1994 the wife commenced part-time work as a health organisation leader.  On average, she worked between four and six hours per week in the evenings.  The husband cared for the children whilst the wife was at work, with his care supplemented by the wife’s mother when he was unavailable.

14. In April 1994 the parties sold their A property for $251,000.  From its sale proceeds, the parties paid $41,819.24 to St George Bank which discharged the line of credit facility used to fund the A property’s renovations. 

15. In April 1994, the parties completed the purchase of a home at F.  Its purchase price was $287,500 funded by $192,000 from the A property’s sale proceeds and $115,000 secured by a mortgage from Westpac Bank. 

16. In 1994 the wife traded in the Ford Laser motor vehicle she owned at the commencement of cohabitation on a Ford Maverick.  The Ford Maverick cost $23,000, part of which was made up by the Ford Laser trade in with the majority by way of a personal loan from Westpac. 

17. The child S was born in February 1995. 

18. During 1995, the parties installed a swimming pool and landscaped the F property.  The entire funds for these improvements were borrowed from Westpac Bank at a cost of between $35,000 and $55,000.  Westpac Bank secured its advance by increasing its mortgage over the F property.

19. In 1996 the parties traded in the leased Ford Maverick and purchased a Land Rover four-wheel drive. The Land Rover was leased by the husband and principally used by the wife.  The $497 per month lease repayments was drawn from the parties’ joint account.

20. In June 1997 the husband resigned from CS Company and commenced employment as a Manager with Y Company. 

21. In mid 1998, the parties exchanged contracts on the purchase of the K property for $510,000.  The parties did not have funds available for a deposit.  By way of a gift the wife’s aunt, Ms I, provided $51,000 which was used for a 10 per cent deposit.  At about the same time, the parties exchanged contracts for the sale of the F property at $430,000.  Both conveyances were completed on 17 August 1998.  From the F property sale, the parties paid $146,722.38 to discharge the Westpac Bank mortgage.  The K property purchase price was met from Ms I’s $51,000 gift, $220,000 borrowed jointly from St George Bank and $240,000 from the sale proceeds of the F property.  Thereafter the family lived at the K property until the parties separated.  This is where the wife and the children live. The parties agree that the wife should be given the opportunity to acquire the husband’s interest in this property.

22. Shortly following the purchase of the K property, the parties employed a painter to paint it, and tradespeople to gut and renovate a bathroom and complete other minor repairs and renovations.

23. In 1998 the parties increased the St George loan by $50,000 so as to purchase a new Vectra motor vehicle.  The Ford Telstra was used as a trade-in.

24. In August 1998 Y Company made the husband redundant.  His redundancy package comprised modest leave entitlements and a couple of week’s salary.  Almost immediately, the husband obtained a two month position with an IT company.  In October 1998 the husband obtained employment with P Company where he remained until August 1999.  Although the wife asserts that this period involved the husband having periods of unemployment, the above history is consistent with his claim that the wife has exaggerated the extent of his unemployment.

25. In February 1999, the wife’s aunt, Ms I, gave her 1,400 ANZ Bank shares and 1,400 Westpac Bank shares.  At that time ANZ Bank shares were worth $10.60 and Westpac Bank shares $11.17.

26. In 1999, the wife’s mother passed away.  From her mother’s estate, the wife received $110,000 cash; 2,130 AGL shares; 2,475 ANZ Bank shares and the contents of her mother’s home.  Using the cash component of her inheritance the wife paid $50,000 off credit cards, $15,000 for a new kitchen and $8,500 for new carpets at the K property.  The wife’s mother bequeathed the husband $20,000 which he used to pay off credit cards. 

27. In October 1999 the husband obtained employment with Z Company where he remained until November 2000.

28. In June 2000, the wife’s aunt, Ms I, gave her 1,500 Australian Pipeline Trust units.  At that time the units traded at $2 each.

29. In November 2000, the husband commenced employment with a State government department where he remained until December 2001.  The husband took up his new position with U Company in January 2002. 

30. On 24 December 2002 the wife’s aunt, Ms I, gave her $5,000 towards the costs of gas heating for the swimming pool at the K property. 

31. The husband commenced work with V Company in about June 2003.

32. During 2003, the parties decided to add a second story to the K property. When they were unable to raise the funds to do so, the wife spoke to her aunt.  Ms I advanced approximately $245,000 for the renovations.  A Sydney based company was retained to complete the building work, which work was overseen by the wife.  The renovations were fully funded from Ms I’s gift.

33. On 11 October 2004, the husband commenced work at L Pty Limited as a Manager.  The husband’s salary package comprised a combination of salary and commissions.  For the financial year ended 30 June 2006, the husband earned a taxable income of $150,192.  Commencing 30 October 2006, L Pty Limited reduced his hours of work to two and half days a week and his salary to $60,000 per annum.  Dissatisfied with this turn of events, the husband searched for alternative employment and on 21 December 2006 received a job offer from W Pty Limited.  The husband resigned from L Pty Limited in December 2006 and commenced employment with W Pty Limited in late January 2007.  This is where the husband is now employed.  The husband delayed his start with W Pty Limited so that he could spend the Christmas school holidays with the children. 

34. At the wife’s behest, on about 26 December 2006 the parties separated.  The husband moved into a separate room in the home.  Although the parties had borrowed $220,000 from St George Bank when they purchased the K property, at separation the mortgage, which had become a line of credit, had about $382,000 outstanding.  The increased liability primarily related to occasional advances used to discharge the parties credit card liabilities. Between their separation under the one roof and the husband’s departure from the home he paid the wife $700 per week, one half of the mortgage repayments and one half of the utilities. 

35. In response to the wife’s application, on 3 February 2006 the Child Support Agency issued an administrative assessment.  This assessment required the husband to pay $1,457.33 each month child support for the period 16 February 2006 until 15 May 2007. 

36. In response to the wife’s application for exclusive occupation of the K property, the parties entered into consent orders on 17 June 2006. The orders and notations included therein are set out below:

    1.Without admissions the husband agrees to vacate the former matrimonial home within 7 days.

    2.That the wife shall thereafter indemnify the husband in relation to the mortgage secured thereon.

    3.That by way of child support departure the husband will pay to the wife $600 child support per week with the next payment to be on 20 July 2006 and weekly thereafter pending completion of the substantive proceedings.

    4.The husband shall be entitled to remove the items in Annexure “A”.

    5.All interim applications are removed from the list of matter awaiting judicial determination.

    6.Note that there is to be a Conciliation Conference on 25 July 2006.

    7.Note that the wife has presented to the Court and the husband that she has reasonable grounds to believe that her aunt will cause the mortgage on the former matrimonial home to be discharged as soon as possible.

    8.Pending further order the children shall live with the wife and spend time with the husband as follows:

    8.1each alternate weekend from close of school Friday until start of school Monday commencing on the first Friday after the making of these orders;

    8.2at other times by agreement, such agreement not to be unreasonably withheld;

    8.3for half school holidays.

    9.Note that the parties intend to attempt to enter into a permanent parenting plan on a final basis.

    10.Noted that the parties acknowledge to the Court and to each other that both parents will generally have to play a role every weekend to assist the children in their participation in extra-curricular activities.

37. On 4 August 2006 the husband vacated the family home.  For a few weeks the husband stayed at a friend’s home before renting a three bedroom home unit in R.  The husband selected the R area as this is close to the former matrimonial home and thus the children.  Since he vacated the K property, other than through child support, the husband has not contributed to the costs of maintaining the K property or the mortgage.  To a great extent since separation, Ms I, the wife’s aunt, has financially supported the wife and the children.  Ms I has increased her financial support for the wife and the children by $2,000 per week.

1. On 31 October 2006 the Child Support Agency issued Notices of Assessment, which required the husband to pay the following child support:

   ·for the period 16 February 2006 to 3 August 2006 $1,457.33 per month;

   ·for the period 4 August 2006 to 12 October 2006 $1,679.50 per month; and

   ·for the period 13 October 2006 to 30 October 2006 $2,239.42 per month.

2. Coinciding with his reduced salary from L Pty Limited and without forewarning the wife, on 1 October 2006 the husband stopped paying child support.

3. On 2 November 2006 the Child Support Agency issued a Notice of Assessment which required the husband to pay $1,356.42 per month for the period 31 October 2006 to 15 May 2007.

4. On 10 November 2006 the husband filed an application for interim parenting orders concerning Christmas 2006[3] school holiday arrangements.  When the matter came before the Court on 12 December 2006 the orders were made as set out below.

   [3] Exhibit “Y”

   1.That the children shall spend the first half of the Christmas 2006 / January 2007 school holiday period with their mother and shall commence the second half with their father as from 10.00 am on 31 December 2006 to conclude at 12.00 noon on 29 January 2007.

5. On 15 January 2007 the Child Support Agency intercepted the husband’s taxation refund of $5,587.24.  These funds were paid to the wife by way of child support arrears.

6. On 17 January 2007 the Child Support Agency issued a Notice of Assessment which requires the husband to pay $2,608.92 per month for the period 1 February 2007 to 30 April 2008.

7. In his affidavit sworn 13 April 2007, the husband said he intended to have his child support payments “completely up to date by the end of April 2007”.  The husband is not up to date with child support, and at the hearing his arrears totalled $11,883.75[4].

   [4] Exhibit “I”

Assets and Liabilities as at the date of hearing

1. The parties reached agreement as to the value of most assets and liabilities.  Their agreement is contained in a joint balance sheet[5].

   [5] Exhibit “B”

2. I find that the parties’ assets, liabilities and financial resources at as the date of the hearing are as identified in the following table:

Assets	69.	$
The K property (J)	70.         Agreed	1,050,000
Wife’s bank account	71.         Agreed	8,002
Toyota Prado (W)	72.         Agreed	44,000
Painting “[…]” (W)	73.         Agreed	3,000
Book of pen drawings (H)	74.         Agreed	1,200
Household contents (H)	75.         Agreed	6,117
Household contents[6] (W)	76.         Agreed	25,000
Jewellery (W)	77.         Agreed	22,850
7,581 L Pty Ltd Shares (H) @ $0.435[7]	78.	3,297
1,500 units Australian Pipeline Trust (W) @ $3.48[8]	79.	5,220
4,850 ANZ Bank shares (W) @ $27.24[9]	80.	132,114
1,400 Westpac Bank shares (W) @ $28.80[10]	81.	40,320
5,432 AGL shares (W) @ $13.22[11]	82.	71,811
701 IAG shares (W) @ $4.20[12]	83.	2,944
3,137 Alinta shares[13] (W)	84.         Agreed	45,486
Wife’s jewellery owned before cohabitation	85.         Agreed	4,000
Husband’s jewellery	86.         Agreed	3,000
2004 Hyundai motor vehicle (H)	87.         Agreed	18,000
TOTAL	88.	1,486,361
Superannuation assets	89.	$
Wife’s Superannuation	90.         Agreed	10,669
Australian Super (H)	91.         Agreed	7,371
MLC Master Key Superannuation (H)	92.         Agreed	120,140
ING Superannuation (H)	93.         Agreed	21,360
Total Superannuation Assets	94.	159,540
TOTAL ASSETS	95.	1,645,901
Liabilities	96.	$
ANZ mortgage (J)	97.         Agreed	382,055
Husband’s credit cards	98.         Agreed	63,622
Wife’s credit cards	99.         Agreed	25,546
D Car Dealership (H)	100.       Agreed	18,000
TOTAL LIABILITIES	101.	489,223
TOTAL NET ASSETS	102.	1,156,678

[6] Excluding artwork

[7] ASX close of trade 18/12/2007

[8] APA Group website COB 18/12/2007

[9] ASX close of trade 18/12/2007

[10] ASX close of trade 18/12/2007

[11] ASX close of trade 18/12/2007

[12] ASX close of trade 18/12/2007

[13] Exhibit “C”

1. There are a number of findings which require explanation. 

2. The parties agree that although the value of the wife’s share portfolio at the date of hearing is agreed at $304,922, excluding her Alinta shares, these should be revalued shortly before judgment. A few weeks prior to the hearing Babcock and Brown finalised its take over of Alinta and thus Alinta no longer exists in its own right.   The Alinta shares are brought to account at an agreed value.  As at the hearing the husband’s L Pty Limited shares were worth $2,388.  For consistency these will also be revalued shortly prior to judgment.

3. The wife complains that the husband failed to ensure that the agreed valuer, Mr B, valued his jewellery, which she says is worth at least $3,000.  When the husband vacated the family home, his jewellery was stored in the home safe where it remained until the jewellery and contents valuations were completed.  At some stage before 20 March 2007 the wife delivered the husband’s jewellery to her solicitor.  By letter dated 20 March 2007[14] the wife’s solicitor informed the husband’s solicitor that his jewellery was in her possession and sought that he arranges its collection.  Unfortunately this request was not passed on to the husband.  The effect of this is that whilst the valuation exercise was being undertaken, the majority of the husband’s jewellery was in the wife’s possession or control.  The wife’s complaint that the husband was less than fully co-operative with this aspect of the valuation process does not withstand scrutiny.   The husband’s jewellery comprises three gold rings, seven gold tie pins, three additional tie pins, seven pairs of cufflinks, a watch, bracelet and gold chain.  The husband wears his watch daily, bracelet and never removes the chain.  The latter three items were in the husband’s possession throughout.  I accept his evidence that he was wearing these when Mr B attended his home and that he overlooked drawing these to the valuer’s attention.  Exhibit S includes a more detailed description of the items that were with the wife.  At the end of the hearing it was agreed that the husband’s jewellery would be included at the wife’s value. 

   [14] Exhibit “S”

4. Curiously, given the wife’s complaints about the husband’s failure to ensure that Mr B valued all of his jewellery, the wife deliberately withheld from the valuation exercise jewellery she acquired prior to the parties living together.  The husband says this jewellery is worth at least $4,000. During cross-examination the wife claimed that she believed she had complied with her obligations concerning the valuation exercise.  However, in her solicitor’s letter dated 20 March 2007,[15] she represents:  “All jewellery owned by my client was made available to Mr [B] for valuation”.  As my findings record, this is untrue.  At the end of the hearing it was agreed that the wife’s jewellery would be included at the husband’s value.  The husband relies upon this untruth for his submission that where his and the wife’s evidence conflicts I will prefer his evidence.  In some cases it is appropriate to make global credit findings reliant upon misrepresentations such as the wife’s.  There are however, instances where the husband’s evidence was misleading, for example understating his L Pty Limited’s share portfolio.  I am not satisfied that I should make the type of global credit finding sought by the husband and base my findings on contentious issues having regard to the totality of the relevant evidence on the issue. 

   [15] Exhibit “S”

5. In opening addresses the wife said that the husband’s 2004 Hyundai car is worth $21,000.  The car was not valued and it is the husband’s contention that it is worth $18,000.  The husband gives evidence in his financial statement to this effect.  His evidence is an admission against interest and is the best available evidence.  During closing addresses the wife agreed that I should find that the Hyundai is worth $18,000.

6. During the parties’ marriage, Ms I, the wife’s aunt, made a series of art works gifts.  The husband said the art work comprises joint matrimonial property and should be included in the asset pool.  The wife agrees that a drawing book “[…]” was given to her and by agreement it is included in the asset pool.  She disputes that the remaining art works given by Ms I are joint matrimonial property.  The wife contends that these pieces are owned by the parties’ children and represent specific gifts to each of them by Ms I.  Ms I says that when she moved into a Retirement Village, because she would no longer have sufficient wall space she made a series of art gifts various family members.  In her affidavit Ms I said that to S she gave a drawing called “[…]” and to J another drawing by the same artist called “[…]”.  “[… , the gift for S]” is worth $18,000 and “[…, the gift for J]” is worth $4,000[16].  E was given an etching by the same artist called “[…]”, which is now worth $2,500.  For E’s christening, Ms I says that she gave her a pen and ink drawing from the same artist titled “[…]” which is now worth $2,000.  Upon receipt these art works hung in the general living rooms in the K property.  Ms I strongly refuted the proposition that these art works were given to the family as a whole.  In cross-examination she claimed she has a list which sets out to whom each of the works was given. The husband called for the lists production, which Ms I failed to provide.  He submits that I would make a Jones v Dunkel 101 CLR 298 ruling to the effect that production of the list would not assist the wife’s case. Given Ms I’s situation I consider it was reasonable that she was unable to produce the list when called for and decline to draw the inference sought. In cross-examination Ms I said E, not the wife was given “[a painting]”. The wife concedes ownership of this painting and in effect concedes that on this issue Ms I’s affidavit evidence is more reliable than her oral testimony. Although there are discrepancies between the wife’s and Ms I’s evidence whatever the husband may have believed, there is no evidence that Ms I gave these art works to the parties rather than the children. He recalls no discussions with his former wife or Ms I in which either suggested the gifts were made to the family as a whole or the parties specifically. On balance I am not satisfied that the contentious art works are joint matrimonial property and they are excluded from the asset pool.

   [16] Exhibit “AA”

7. At separation the parties had two credit cards.  One was a Westpac Mastercard with $917.52 outstanding.  The other was a Citibank credit card, which in January 2006, there was $24,569 outstanding.  The Westpac credit card now has $11,552 outstanding and as at August 2007, the Citibank credit card had $31,560 outstanding.  In September 2006 the husband obtained an American Express card, which now has $21,740 outstanding.  This card is used for work expenses for which the husband’s employers reimburse him.  He also has a Diner’s Club credit card which at 24 February 2006 had $59.50 outstanding and at 25 September 2007 $3,517.12 outstanding.  The husband uses his Diner’s Club credit card for both work and personal expenses.  By the time of the hearing, the husband’s credit card liability had increased to $63,622.  Excluding his American Express work credit card, his personal credit card liability is approximately $42,000.  That is, $41,000 increase in personal credit card expenses since separation. 

8. The wife has an American Express credit card, Coles Myer Mastercard and an ANZ Gold Visa credit card.  There is no evidence that at separation there was any outstanding liability on these cards.  I infer there was not.  Presently, the wife’s various credit cards have a total of $25,546 outstanding.  The parties agree that these amounts should be included in formulating the asset pool. 

Section 79(4) – the evaluation of contributions and other factors

1. Section 79(4) requires that the Court looks at the entirely of the contributions, both financial and non-financial, to the welfare of the family as well as to the acquisition, conservation and improvement of assets.  Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.

2. An important issue in this matter is the assessment of the weight that should be attached to the wife’s initial contribution.  In Pearce (1999) FLC 92-844 the Full Court held:

   In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.

3. The parties cohabitated for 18 or 19 years.  They agree that the wife made a greater initial contribution.  Her assets were significant and comprised the unencumbered O unit, 1,000 AGL shares, her car and the furniture and furnishings at the O unit.  The husband’s liabilities are likely to have exceeded his assets.  From the time the parties commenced cohabitation, each of them contributed all of their income from whatever sources to joint matrimonial purposes, including the wife contributing the entirety of the assets she owned when the parties commenced living together.  Because the parties were able to live in the wife’s unencumbered O unit, they were immediately in the enviable position of putting their income and assets to good use, by which I mean they were not required to pay rent. Not long after the parties commenced cohabitation they purchased the A property using a deposit advanced by the wife’s mother.  The motivating circumstance behind the advance is the wife’s relationship with her mother and this is a contribution on the wife’s behalf.  The parties borrowed the shortfall from the Commonwealth Bank, which mortgage was paid out five months later when the wife completed the sale of her O unit.  The effect of these transactions is that the wife was solely responsible for the contributions made to the A property’s acquisition. 

4. Three and a half years later the parties sold the A property for $55,000 more than its purchase price.  During the intervening period the parties borrowed $50,000 which funded significant renovations.  Having regard to the cost of the renovations and the A property’s ultimate sale price, it is apparent that the improvements made to the A property were roughly equivalent to the amount spent making them.  When they purchased the F property for $287,500, the greater portion ($192,000) came from the A property’s sale proceeds.  With the sale of the F property four years later, $240,000 was realised and used towards the K property purchase.  The F property sale proceeds were slightly less than half of the K property purchase price.  I have no difficulty accepting the wife’s submission that her initial contribution of the O unit provided the foundation for their ultimate acquisition of their home at K.  The parties’ ability to purchase the K property is directly referrable to the wife’s greater initial contribution which was in effect the seed capital for the acquisition of a property now worth $1,050,000 in an asset pool comprising $1,156,678 net.  I agree with the wife’s submission that had it not been for the monies obtained from the O unit’s introduction and sale, the parties would not have been in a position to purchase and improve the properties of an equivalent value which ultimately led to the K property acquisition whilst simultaneously enjoying a similarly good standard of living.  This is a weighty consideration in the wife’s favour.

5. The wife claims contributions based upon payments made by her aunt, Ms I.  This is a significant issue, as the parties agree that Ms I has advanced cash and shares of approximately $860,000.  By way of cash advances, Ms I paid $51,000 used as the deposit for the K property, $245,000 for extensions to the K property, private school fees of $240,099 and $233,040 for school expenses, the children’s music tuition and periodic cash payments.  These payments are particularised in Ms I’s affidavit with the amounts described unchallenged by the husband.  Ms I also gave furniture and paintings. 

6. In the Marriage of Rainbird (1977) FLC 90-256 at 76,376, the Full Court makes it clear that: “The contributor of a gift is determined by the original intention of the donor”. It is apparent from Gosper (1987) FLC 91-818 that the donor’s intention is not necessarily the determining factor. The gravamen of Fogarty J’s judgment is that depending upon the circumstances the Court is able to treat a gift as the financial contribution made on behalf of a spouse by the spouse’s relative. However, it is also clear that this can be displaced by evidence that the donor intended to benefit both parties to the marriage. In Kessey (1994) FLC 92-495 the Full Court explained that as a general approach, a parental gift is to be treated as a financial contribution made on behalf of the child of the donor parent. That is, unless there was evidence showing that it was not the parent’s intention to benefit only his or her child. In that case, the Court took into account the relationship between the spouse and the spouse’s parent and concluded that the gift from the parent should be regarded as a contribution of that spouse. Where the intention of the donor of the gift is not clear the Court can look to any special relationship between the donor and one of the spouses and regard the gift as having been contributed by that party. See Kessey at pp 81,149 – 81,150.

7. The issue of gifts and advances is further discussed in Pellegrino (1997) FLC 92-789. In that case, Chisholm J sagely acknowledges that parents do not usually have an intention of whom they intend to benefit when they make gifts to their children. In Pellegrino, Chisholm J held that the parents intended to benefit their daughter by the gift, notwithstanding the fact that her husband derived direct and indirect benefit from it.  Essentially if the motivating circumstances leading to the gift is the parent/child relationship, the gift may be regarded as the contribution of the son or daughter:  and not also of his or her spouse (at pp 84,726 – 84,728).  These principles apply to all interfamilial advances.  Thus, although the advance may have been made by other relatives, in this case the wife’s aunt, the advances will be analysed with the above principles in mind. 

8. Shortly prior to the hearing, the wife filed an application in a case seeking that the Court take Ms I’s evidence at her retirement village.  This is because Ms I’s health was deteriorating and it was her doctor’s opinion that she should neither travel to court nor participate in this hearing.  In a report dated 19 October 2007, Dr R, said Ms I had been her patient for 10 years.  Ms I’s health had declined markedly during the preceding 12 months, requiring that she move from her retirement unit into its aged care facility.  Dr R reported that Ms I suffers from “severe spondylosis of her neck, occipital neuralgia, labile blood pressure, iron deficient anaemia, erythromelalgia and macular degeneration”.  At 92 years of age, Ms I’s age and physical disabilities require frequent bed rest; make it hard for her to sit for long periods and she requires assistance with walking.  I had no difficulty accepting that requiring Ms I to personally attend this hearing was detrimental to her well being and should not be required. 

1. Dr R reported that Ms I: “Has become more forgetful and has suffered a decline in her cognitive abilities over the past two months.  In short, Ms I’s physical and mental health has deteriorated quickly over the past six months ….”  Given the magnitude of the parties’ disagreement concerning Ms I’s evidence and the husband contentions concerning future financial support for the wife, the husband’s counsel wished to cross-examine her. The husband’s counsel tried to find a proper balance between not taxing Ms I’s fragile health with protecting his client’s position.  With this in mind, counsel adopted my suggestion that Ms I might give evidence by telephone and proffered an alternate proposal that he could provide a list of written questions to which Ms I would respond.  None of these options was acceptable to the wife or Ms I.  In circumstances where it appeared Ms I may not be available for cross-examination, in the face of the wife’s objection, on the afternoon of 25 October 2007 I gave the husband leave to issue subpoenas for the production of documents.  These subpoenas were addressed to Ms I’s solicitors for production of her will and to her accountants for production of her most recent taxation return.  With my concurrence the wife advised Ms I of my orders.  The following morning, before the subpoenas were called upon, the wife’s counsel informed the Court that Ms I was feeling well enough to give evidence by telephone. 

2. Although Ms I was provoked and irritated by being embroiled in these proceedings, she clearly understood that she was giving evidence in these family law proceedings.  Ms I’s answers to questions were generally responsive and demonstrated clarity of thought, sound understanding of the process and the issues at hand.  Her answers were prompt and generally thoughtful.  Where she was unresponsive, this arose from her determination to take the opportunity to make points which she considered required making, even if she was occasionally provocative.  Ms I gave a clear summary of her current will.  Ms I leaves a series of small bequests to godchildren and the husband with the overwhelming majority of her estate being left to the wife.  Notwithstanding her doctors evidence concerning Ms I’s deteriorating cognitive health; her evidence demonstrated that she maintains a formidable and capable intellect.  It follows that I am satisfied that Ms I has testamentary capacity to change her will.  However, other than excluding the husband, she evinces no intention concerning reducing the wife’s ultimate entitlement.  Ms I and the wife have a relationship of great mutual affection.  Theirs has been a life long relationship and from both perspectives it was and is profoundly loving. They speak daily and the wife has Ms I’s Power of Attorney[17].

   [17] Exhibit “T”

3. In stark contrast to her frankness concerning her will, Ms I disavowed any knowledge of her current net worth.  She explained that her assets are predominately shares and fluctuations in the share market make it impossible to answer questions of this type.  With respect to Ms I, counsel’s questions did not demand from her an absolutely precise figure.  Counsel invited answers in general terms to which I consider Ms I is likely to have known the answer. Ms I has invested in shares for 70 plus years and only recently completed her 2007 annual taxation return.  I am satisfied that Ms I deliberately failed to answer questions concerning her worth because she considers this to be an unacceptable invasion of her privacy.  While it was undoubtedly an invasion of her privacy, Ms I took an oath to tell the truth and in this instance she failed in her obligation as a witness.  The husband submits, in effect, that this casts a shadow over Ms I’s creditability concerning her intentions regarding the numerous financial gifts advanced throughout the marriage.  He challenges Ms I’s evidence that the advances were made with the specific intention of benefiting Ms I and, in relation to the children, the children only.  The husband points out that he had benefited from monies Ms I provided for the family’s regular overseas holidays and the acquisition and improvements to their properties.  When Ms I moved into her retirement village she gave the husband her motor vehicle and provided a large quantity of furniture.  Throughout the marriage, the husband says he established a close and respectful relationship with Ms I.  Ms I and the wife agreed that Ms I wrote to the husband’s parents speaking of him affectionately.  The wife agreed that Ms I respected the husband.  Post separation events have resulted in Ms I changing her positive regard for the husband into a much darker view.  She explained that she now believes she was mistaken about the husband.  Notwithstanding her changed views of him, I have no difficulty in accepting the husband’s premise that he and Ms I had a warm and happy relationship during the years he and the wife cohabitated.

4. The husband explained that as part of his relationship with Ms I, he willingly collected her for family functions and drove her home.  This was done at the wife’s behest but with his full cooperation.  When Ms I moved to her retirement village in 1998, the husband says he packed her delicate glassware and other belongings and took them from her home to the retirement village.  This involved a number of journeys.  The wife and Ms I say that Ms I retained removalists for this move and denied that the husband had any significant involvement in the move.  While it appears that the husband and the wife had some involvement in assisting Ms I close her home, the vast majority of the work involved was done by removalists and Ms I.  At its highest, the husband’s involvement was minor and does not appear to have influenced Ms I’s intentions concerning her numerous financial advances.

5. It is revealing that it was the wife alone who approached the wife concerning the funds for the K property improvements and the deposit for the F property.  The husband was not involved in these discussions, factors which demonstrate that Ms I’s focus was upon her dealings with the wife. 

6. Excluding gifts Ms I made directly to the husband, I am strongly satisfied that Ms I’s numerous advances and gifts have been motivated by her desire to benefit the wife.  They are thus contributions made solely on her behalf.

7. In relation to Ms I, she contributed $296,000 towards the K property’s acquisition and improvements. When this contribution is added to the wife’s “seed capital [O] unit contribution”, the wife overall has made a significantly greater contribution to the K property’s acquisition, conservation and improvement than the husband.  When one has regards to its significance in the asset pool it is apparent that this is a weighty consideration. 

8. During the period of cohabitation the husband was all but continuously engaged in paid employment and utilized his earnings for the betterment of the family.  When one has regard to his earnings received in the latter part of cohabitation and the types of positions he held throughout, I accept that he was well renumerated throughout the entirety of the parties’ cohabitation.  At all times the husband’s income from his paid employment exceeded the income the wife earned from hers.  Once the parties purchased the A property, from that point on the husband was jointly liable, either as an owner or borrower, with the wife for all funds they borrowed.  His contributions towards these loans in this regard are equal to hers.  Where they differ, is that it was the husband’s earned income which was applied in the various loan and lease repayments.  Overall the husband’s earned income was fundamentally important to the parties quality of life and is a significant contribution.

9. The husband received a small bequest from the wife’s mother, which funds he contributed to joint matrimonial purchases.  The nature of the bequest evinces a clear intention to benefit the husband and this is a contribution on his behalf.  As is Ms I’s gift to him of her motor vehicle, the proceeds of which the husband contributed to joint matrimonial purchases. 

10. The wife has been solely responsible for the acquisition of all shares acquired and owned in her name. By comparison, the husband made an indirect contribution to the shares’ conservation, by applying the entirety of his earned income to the family’s day to day expenses thereby enabling the wife to retain the shares rather than disposing of them so as to meet living expenses.  The significance of the husband’s contribution  is somewhat lessened by the sizeable bequest the wife received from her late mother’s estate and the cash contributions Ms I provided, which the wife also applied to day to day living expenses. 

11. Neither party had superannuation when they commenced cohabitation and it has overwhelmingly accrued while the parties lived together.  It appears that their superannuation comprises employer contributions with each parties employer contributions represented in the funds in their respective names.  The husband’s direct superannuation contributions exceed the wife’s.  Each party has indirectly contributed to the other’s fund in the manner discussed in Hauff and Hauff (1986) FLC 91-747.

12. Nonetheless having regard to the husband’s earned income and notwithstanding the wife’s direct and indirect financial contributions overall his financial contributions as at the date of separation exceed hers.

13. Between separation in December 2005 and when the husband vacated the former matrimonial home, his financial contribution to the matrimonial assets continued.  As I have previously found, he paid half of the K property mortgage and utilities and $700 towards the family’s day to day expenses.  The wife paid the balance of the household expenses, including the children’s school fees and extra curricular expenses.  This was achieved through Ms I increasing her regular financial contributions which, for the reasons previously discussed, are contributions made on the wife’s behalf.  After the husband left the home, the wife has been solely responsible for its outgoings and the majority of the children’s expenses.  While this has enabled the parties to retain the K property, as the wife has had its sole use for over 12 months, this modifies the significance of these contributions. 

14. The husband solely contributed to the acquisition of his L Pty Ltd shares and superannuation provided by them.  These contributions are offset by the comparatively greater credit card liabilities which the husband brings into the asset pool.  

15. Comparatively, post separation the wife has made a slightly greater financial contribution.

16. The parties made significant improvements to the A property, the F property and the K property. Of the improvements and renovations to these properties, the overwhelming majority was completed by paid tradesmen.  As the wife was at home with the children, she was more intimately involved in working with architects and tradesmen in the sense of consulting with them and overseeing the various improvements.  The wife did not take these decisions alone and the husband contributed through his consultations with the wife.  At each of these three properties, the husband made improvements, performed running repairs and generally maintained the properties’ exterior.  Because he was working fulltime and when he was at home, involved in the children’s care, his available time was necessarily limited.  I accept that the husband built a deck, renovated bathrooms, painted and built a sandstone fence.  Whilst he made a greater non-financial contribution to the conservation or improvements to the post O property family homes than the wife, this was overall a modest contribution on his part. 

17. During cohabitation the wife was primarily responsible for running the family’s home, managing their finances and caring for the children.  The husband was primarily engaged earning income.  Her contribution as a homemaker and parent considerably exceeds the husband’s.  Although I thought he gave a slightly exaggerated account of his homemaker and parent contributions I generally accepted the husband’s evidence on this topic.  As I have already found, when the husband was at home he involved himself in the children’s care.  He was interested in their education, sports and social activities and usually cared for the children when the wife was working for the health organisation.  During the school week the husband regularly delivered the children to school. His practice was to arise early and assist with breakfast preparations.  The family holidayed together annually, during which periods I infer the husband was as involved in the children’s care as the wife.  Post separation and until the husband vacated the K property, the parties pre-separation homemaker and parent contributions were largely unchanged.  The only variation to this is that the wife no longer attended to the husband’s needs or he towards hers.  When the husband moved out of the K property, the wife’s homemaker and parent contributions increased. The children are overwhelming in her exclusive care.  The parties homemaker and parent contributions are of considerable duration and must be valued in a real and significantly way.  They significantly favour the wife.

18. The proposed orders will not affect either parties earning capacity.

19. As part of these proceedings parenting orders will be made, the effect of which is that the children will continue living with the wife and spend time with the husband.  

20. I have previously made findings concerning the husband’s child support payments.  These are sizeable but nonetheless there are significant arrears.

21. In my opinion, the wife’s greater initial contribution and the various financial contributions made directly and indirectly on her behalf when balanced with all other relevant contributions by both the husband and the wife warrant significant weight.  Expressed as a percentage of the net value of their assets, overall the wife’s contributions as at the date of hearing are 66 per cent and the husband 34 per cent.

Section 75(2) factors

1. In the event the outcome of the s 79(4) process is broadly consistent with the wife’s application, she submits that no s 75(2) adjustment for either party is appropriate. In the event the Court adopts the husband’s submissions concerning the asset pool and contributions, the wife contends that there should be an 8-10 per cent adjustment in her favour. The husband submits that there should be a 10-20 per cent s 75(2) adjustment in his favour.

2. Sub-section (a).  The wife is 50 years old and in good health.  The husband is 49 years old and also in good health.  Neither party submits these factors warrant  any adjustment.  I make no adjustment pursuant to the sub-section.

3. Sub-section (b).  I have already made findings about the parties’ assets and liabilities.  As a consequence of my s 79(4) and other contributions findings, rounded out the wife will have assets worth about $763,407 and the husband will have assets worth about $393,270.  Ms I will pay the wife’s outstanding legal fees[18] and says it has always been her intention to give the wife the money she needs to pay the husband his s 79 entitlement and to discharge the mortgage.  As soon as the home is transferred into the wife’s sole name and the wife’s assets protected from further claims from the husband, Ms I will discharge the mortgage. Although I do not have precise details of her total asset position, as discussed later in these reasons, there is no doubt that she has the ability to maintain the periodic payments indefinitely and make the lump sum payments.  Ms I has neither a legal or moral obligation to make any of these payments.  Whether or not the payments are made is solely at her election and may be stopped or reduced at any time. However Ms I is devoted to the wife and her children and uses her wealth to provide them with financial security and opportunities in life.  Her generosity to the wife and the children has already been outlined and long predates the parties separation. Without hesitation, following separation Ms I made a personal commitment to increase her periodic financial support to the wife and the children and gives unequivocal evidence that she will continue doing so.  There is little reason to doubt that Ms I will be true to her word, as doing so maintains a well established course of conduct in doing something which she believes is the right thing to do.   Thus although the wife lacks the control which would enable her to require that the periodic and lump sum payments are made, it is all but certain that they will be. 

   [18] Exhibit “K”

4. The husband contends that these lump sum payments and the probability of continuing weekly payments by Ms I of $2,000 per week comprise the wife’s financial resources and warrants adjustment in his favour. The wife opposes this approach and submits that that she lacks the requisite control over the funds and that I could not be satisfied that she will receive the amounts under consideration.  It is her contention that the husband must establish that she has sufficient control over her continued receipt of the income stream and the ability to require Ms I to make the lump sum payments.  I do not agree. In Kelly & Kelly (No. 2) (1981) FLC 91-108 the Full Court discusses the meaning of the words “financial resources” used in the context of s 75(2). In a much wider discussion the Full Court held: “The term ‘financial resources'’ was not found in previous legislation. The repealed Act spoke in sec. 84(1) simply of ‘the means of the parties’ ”. It has been held that this term included not only the income and property to which the parties had legal entitlement, but also what a party was likely to receive by way of gift Trenerry v. Trenerry (1970) 16 Fam. L.R. 406. On the face of it, sec. 75(2)(b) ought not to be construed more narrowly than the repealed Act. Clearly the term ''financial resources'' must add some meaning not covered by the terms ''income and property'', for example, contingent interests or benefits which a party actually received or was likely to receive, whether legally entitled thereto or not. Kelly & Kelly (No. 2) has consistently found favour with subsequent Full Courts.  See most recently Stephens & Stephens [2007] FamCA 680. Although the focus of its contribution to subsequent jurisprudence has primarily been upon trusts assets and the significance of control of trust assets to the issue of whether these are property financial resources or within the reach of the Family Court at all, the case law has not suggested that the statement of principle referred to above has fallen out of favour. It remains good law.

5. The effect of this is that the wife will have the K home unencumbered, as well as the other assets identified as being hers in the table and her credit card debt.

6. In her fulltime work with a health organisation, the wife earns $236 per week.  The wife also earns approximately $229 per week investment income from shares, $600 per week child support and $2,000 per week from Ms I.  Ms I has made this weekly contribution to the wife’s expenses since separation.  Ms I is financially able to continue this level of financial support indefinitely. This means that overall the wife’s gross weekly income is $3,065 or $159,380 annually.  Within three or four years, it is likely that the wife will significantly increase her working hours and her income will increase by a modest amount.  Although the wife previously worked as an office manager, it is many years since she did so and the prospects that she will return to that type of employment seem remote. It is most likely that the wife’s future employment will continue to be with the health organisation or a similar organisation until she reaches retirement age.  By the time the wife decides to resume full time paid employment for reasons discussed later I am satisfied that she will have received a sizeable inheritance from Ms I.  The effect of this is that the payments Ms I presently makes will cease and will be replaced by the wife’s improved asset position.  In assessing the application of this sub-section I take into account Ms I’s periodic financial support.  The prospective inheritance is addressed pursuant to s 75(2)(o).

1. Ms I’s 2006 taxation return[21] reveals that her total income for that year was $408,863 or $400,099 (net).  It corroborates her oral evidence that the vast majority of her income is from share dividends.  Ms I has divested herself of real estate and her assets comprise shares and cash investments.  During the hearing the wife declined to concede that “[Ms I]’s estate has an estimated value of $3-5 million.”[22]  Upon seeing Ms I’s taxation return he says that the figure is likely to be closer to the vicinity of $5 million, perhaps more.  He bases this upon the returns the wife receives from her shares.  Because a considerable portion of the wife’s shares came from Ms I, it is contended that it is likely their portfolios are reasonably similar, at least as to the companies and entities invested in. I accept that this inference is reasonably available.  In coming to this view I am moderately influenced by Ms I’s refusal to answer questions on point and the wife disavowing any relevant knowledge.  As to the later, given the wife’s close involvement in the operation of Ms I’s financial affairs, I do not accept that she has as little information as she conveyed.  My finding does not purport to provide an accurate assessment of Ms I’s overall worth.  For reasons discussed earlier that is not the purpose of this hearing and it is sufficient that I have enough evidence to make a general assessment.  When Ms I pays out the parties mortgage and gives the wife the funds to pay the husband his s 79 adjustment her assets will fall by the same amount.  Ms I will leave a number of small legacies in her will.  Although it is may be generous to the wife it is reasonable to conclude that within two-three years she is likely to receive about 70 per cent (the amount the husband contends) of Ms I’s estate.  This is likely to be in the vicinity of at least $2.8 - 3 million.   I make an adjustment pursuant to the subsection in the husband’s favour.

   [21] Exhibit “Z”

   [22] Exhibit “Q”

2. Sub-section (p).  This issue does not arise.

3. Having regard to all of the s 75(2) factors, I find it is appropriate there should be an adjustment in the husband’s favour of 6 per cent. This outcome reflects a cumulative outcome of the findings I have made pursuant to s 75(2). Tomasetti (2000) FLC 93-023.

Section 79(2) – Is this outcome just and equitable?

1. Because the Court must consider the actual orders, not just the percentage distribution, under s 79(2) justice and equity in cases like this requires that the Court stands back and looks carefully at the outcome of the s 79(4) and s 75(2) process. It is at this stage that the Court considers the actual structure of the orders.

2. I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome distributing the available assets of 60 to the wife and 40 per cent to the husband is just and equitable. These include that the parties’ total contributions span 18 - 19 years and reflect great effort by each of them. The marriage has been a true partnership with each party contributing their all. Throughout the husband has earned a good income and overall made a significant financial contribution. The wife made a greater initial contribution which provided the seed capital for their subsequent purchases. When the indirect financial contributions made on the wife’s behalf to the various properties are taken into account, it is apparent that her contributions to the acquisition and improvement of the respective properties is both substantial and significant. Motivated by their relationship to the wife these same benefactors made large additional contributions to the parties assets and their day to day living expenses. Indeed it is these indirect contributions made on the wife’s behalf that enabled the parties to educate their children in private fee paying schools, travel annually overseas and furnish their homes to a standard both aspired to and from which the whole family benefited. Both parties contributed as parents with the wife’s homemaker and parent contributions significantly exceeding the husband’s. Post separation Ms I has generously contributed to the wife’s and the children’s expenses. In the relatively near future the wife is likely to receive a significant inheritance and comparatively her financial future is far more secure than the husband’s. Whilst this prospective inheritance is significant, the size of the s 75(2) adjustment the husband pursued is disproportionate to its connection to the parties relationship. It is not the case that s 75(2) provides a platform designed to deliver an engineered financial outcome based upon an increasingly remote connection to the marriage. It is important not to overlook that a significant component of the husband’s but not the wife’s assets are tied up in superannuation.

3. Overall the wife contends that she should receive between 70 per cent and 75 per cent of the assets compared to the husband’s 25 - 30 per cent.  This is a 45 - 50 per cent differential.  When one has regard to the size of the asset pool and my findings I do not consider this outcome just and equitable.  The wife took a fairly mathematical approach to the indirect financial contributions made on her behalf but was less inclined to treat the husband’s similarly.  The reality is that, as with many families, the available assets do not have the same dollar value as the monies contributed to the various matrimonial purposes.  With this in mind, a 20% differential in the overall outcome delivers a just and equitable response to this exercise.    

4. The effect of this is that the wife will receive assets worth $694,006 and the husband $462,671.  The husband has net assets worth $95,566.  This means the wife must pay him $367,105.

5. The orders give the wife the opportunity to acquire the husband’s interest in the former matrimonial home.  She will have six weeks within which to pay him or the home will be sold.  The later is highly unlikely but must be considered. The time frame strikes the balance between affording the wife sufficient time to make arrangements with Ms I for the payout and giving the husband timely access to his share of the assets.  Any longer would be unreasonable to him and is probably unnecessary.  The wife must also discharge or refinance the mortgage.  Leaving the husband potentially liable for the mortgage limits his borrowing capacity and impermissibly offends s 81 notions of finality. 

6. Although the former matrimonial home has an agreed value its sale proceeds cannot be known.  Excluding the former matrimonial home and the mortgage the parties net assets are $488,733.  Of these the wife has $392,870 and the husband has $95,566.  The husband is entitled to $195,493.  Therefore on the sale of the home there must be an adjustment of $99,927 by the wife so that overall the husband receives 40% of the assets.

General law for the determination of parenting issues

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture;  and

   (b)to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).   Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order.  Goode & Goode [2006] FamCA 136. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays;  and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine;  and

   (ii)occasions and events that are of particular significance to the child;  and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.  Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.  

Determining the children’s best interests

1. The parties agree that they will have equal shared parental responsibility for the children.  Neither party proposes an equal time arrangement.  They agree that it is important that the children have a meaningful relationship with both of their parents and one another.  It is agreed that the children will continue to live with the wife.  Their disagreement centres upon arrangements for the children to communicate and spend time with their father.  There are no family violence orders or risk issues.

2. The wife, predominantly because of the elder children’s ages, believes that the proper approach to the children’s arrangements for spending time with their father is that this should be unconstrained by order and responsive to the children’s desires and commitments.  The wife is particularly concerned that if she is ordered to make the elder children available to spend time with their father, which arrangement from time to time the children may not abide, she is exposed to the risk of contravention proceedings.  In circumstances where the parties’ ability to communicate is so poor, she is reluctant to enter into an arrangement which requires cooperation and effective communication between the parties so as to meet the exigencies of the elder children’s lives.

3. The husband agrees that the parties are unable to communicate.  He explains that until the wife apologies to him for ending their marriage there is virtually no prospect of improved communication. The husband described him and Mrs Q as “jilted spouses”.  He left me with the clear understanding that he is very angry with the wife and does not seek a rapprochement with her, even if doing so means that cooperative post separation parenting results.  In this regard, my observations of the husband’s attitude are consistent with Ms M’s.  The sad reality of this stance is that the children’s protestations and distress which was evidenced in their interviews with Ms M about the state of their parent’s relationship at least as far as the husband is concerned is unheeded. 

4. Notwithstanding the parties’ poor parental relationship, both are devoted to the children and want the best for them.  Throughout their marriage, the parties each did their best to promote the children’s well being.  The children are all performing well academically and socially.  They are well integrated in their local community and are a credit to each parent’s commitment to them.  Where difficulties now arise is directly as a consequence of their parent’s inability to manage well their post separation arrangements. 

5. J was 16 years and 9 months when he saw Ms M.  Ms M describes J as an open, intelligent, articulate young man with a great sense of humour, who demonstrated age appropriate maturity.  He was warm and affectionate with each of his parents and is unaligned.  Ms M reports:  “[J] made it clear the major issue for him is not the basic structure of the arrangement of time, which he, for various reasons, finds to be reasonable to his needs...”  J’s difficulty is managing his parent’s conflict and wanting to ensure that he could have free and easy access to his father and that his father was able to participate in his extra curricular activities, such as rugby.

6. E was 14 years and 7 months when she saw Ms M.  Ms M describes E as an open and intelligent child with age appropriate maturity. E’s closest relationship is with her mother.  She was positive about her relationship with her father, but concerned about matters that had arisen with him post separation.  From E’s discussion with Ms M, it is plain that the wife has discussed child support issues with her and she believes that her father has lied to her about previously making arrangements with her mother. Although aligned with her mother, E is not ignorant of her mother’s contribution towards the parties’ presently poor relationship, commenting to Ms M that she regarded her parent’s behaviour during the period they lived separated under the same roof to be “stupid”.

7. E also wants unrestricted time with her father and says she would like to be able to have a meal with him, celebrate “good news” and enjoy activities as the mood takes her.  Ms M reports that:  “From [E]’s point of view, strict routines lead to missed opportunities”. E stated that she would like to see her father during the week sometimes and, in the event of a school concert, she would like to go back to his place after school to attend the concert from there, as his home is more conveniently located to her school. Understandably E considers that arrangements would be more easily made if her parents were to get along a bit better.  E specifically commented that she would like her father to be a bit nicer to her mother.

8. E has not spent time with her father as anticipated by the interim orders.  Although J and S by and large spend each alternate weekend with their father, E sees him approximately monthly.  E is a keen ballet dancer and ice skater.  These activities engage her three afternoons a week and on Saturdays.  She has reached the stage where she particularly enjoys spending time, without either parent, with her friends.  Although her father supports these activities, E perceives this is more easily arranged with her mother.  It may well be that E is a harsher critic of her father’s behaviour towards her mother, in particular his persistent refusal to acknowledge her mother or communicate with her. 

1. At E’s age and with her obvious maturity, the notion of not making orders requiring her to spend time with her father would usually find favour.  However, I am concerned that unless there is at least a minimal structure in place, E’s relationship with her father may falter.  Although E wishes to be free to come and go as she chooses, she fails to appreciate that her father is not a completely free agent and he needs to be able to make plans for spending time with his children.  With at least a minimum structure in place, this should give him the opportunity to arrange activities the children will enjoy and enable, in this instance, E to arrange her commitments taking into account the importance of spending time with her father. Proceeding in the manner the wife suggests, in relation to E, may unintentionally send the child a message that neither the Court nor her mother value the child’s relationship with her father.

2. Like his elder siblings, S has a busy life.  He is in Year 6 at N College.  He plays in the school’s cricket and soccer teams, is a member of the school’s junior string ensemble and does band with the school.  S also debates on behalf of the school.  In addition to his school activities, S studies French horn and cello and has tap and jazz dance lessons.  S’s French horn lessons are on Friday afternoons, cello on Wednesday afternoons and dancing tuition is on Thursday and Saturday afternoons.  He plays school sports on Saturday mornings. 

3. S spends time with his father with the frequency anticipated in the interim orders.  The husband is able to take S to and from his various activities and willingly does so.  He also encourages S to include his friends in their time together which also occurs.  With minor variation, I am strongly satisfied that S’ relationship with his father will be promoted if orders broadly consistent with his father’s application are made.  This is an age appropriate response to S’ strong relationship with his father and, absent an improvement in the parties’ communication provides the child with a platform for moving between his parent’s homes upon which he can rely. 

4. Parenting proceedings are never final in the sense children and their parent’s circumstances change and consequently arrangements may need to alter.  As far as possible courts make parenting orders which minimise the prospect of further litigation.  Litigation is costly in emotional and financial terms and has the effect of standing in the way of parents and children moving on in their lives. Whichever outcome is ordered, it appears there is little prospect of further litigation.  While the wife is fearful she may be breached if she fails to comply with a parenting order, when she has done so to date, although he has threatened it, the husband has not actually done so.

5. There is considerable overlap between ss 60(3)(c), (f), (i) and s 60(4) and (4A).  I have already made findings concerning the extent to which each of the parties have fulfilled or failed to fulfil their parental responsibility.  To the extent he has been able; the husband has maintained good communication with the children and spent as much time with them as has been available.

Conclusion

1. The parenting orders comprise a suite of orders designed to provide the children with both stability and flexibility, consistent with each child’s particular circumstances.  The injunctions should ensure that the children are not exposed to overt displays of parental hostility or hear unpleasantries expressed, mainly by the husband, about the other parent. 

2. In terms of detail, I consider 9.00 pm return on Sunday night too late and, even if S (and on occasion E) are returned fed and with their homework done, they are likely to be tired and unsettled with such a late arrival.  Returning at 7.00 pm enables them to settle back into the mother’s home before school the next morning. 

3. Christmas Day was particularly contentious. Last year, when the wife refused to agree to the husband’s proposals, even although she offered an alternate arrangement whereby the children would start their Christmas with the father at 3.00 pm Christmas Day, he refused to see the children.  The husband was critical that the wife did not force the children to telephone the father on Christmas Day.  However he sat at his home stubbornly refusing to call them.  He knew where the children were and he knew he could have had Christmas afternoon and evening with them.  With respect to the husband, in this instance he demonstrated an immaturity for which he should be profoundly embarrassed. It is to the children’s credit that they have not judged this behaviour more harshly.  The children are used to having Christmas Day with family and friends at home.  They are all well past the age of believing in Santa and there is no compelling reason why they should have a major disruption to their traditional family celebrations.  Provided the children are able to spend part of this day with each of their parents in a celebration, the children’s needs are attended to.  It is desirable to minimise the movements backwards and forwards between the parties at this time of year and in the future the children will start Christmas celebrations with their father at 3.00 pm on Christmas Day.  That will then provide the lead in to S’ block periods with his father.

4. Much was made of the wife taking E away for a music camp rather than ensuring she spends Father’s Day with the husband.  This was part of a longer holiday with the decision ultimately being E’s.  I do not share the husband’s criticism of the wife on this occasion. He spent the day with his sons.  However to avoid difficulties of this type in the future, specific orders address future anticipated special occasions.  

5. For these reasons I am satisfied the orders identified at the beginning of this judgment are in the children’s best interests.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date: 21 December 2007