White and Griffin

[2010] FMCAfam 1125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & GRIFFIN [2010] FMCAfam 1125

FAMILY LAW – Property settlement and Parenting orders.

Family Law Act 1975, ss.60B, 60CC, 60CA, 65DAA, 75(2), 79(4) & 90MT

Hickey & Hickey and Attorney for the Commonwealth of Australia (Intervenor) [2003] FLC 93-143
Re NHC and RCH (2004) FLC 93-204
Townsend &Townsend 1995 FLC 92-569 Nicholson CJ at 81,654

Applicant: MS WHITE

Respondent: MR GRIFFIN

File Number: BRC 7397 of 2009

Judgment of: Cole FM

Hearing dates: 26 & 27 July 2010

Date of Last Submission: 27 July 2010

Delivered at: Adelaide

Delivered on: 2 November 2010

REPRESENTATION

The Applicant: Self-represented

Counsel for the Respondent: Ms Zande

Solicitors for the Respondent: Walker Pender

UPON NOTING

(a)the parties’ agreement to try and ensure where possible that the time spent by the children with the wife coincides with the time spent by the wife’s partner Mr C with his daughter [M], particularly on her birthday and during the school holidays, and

(b)the agreement of Mr C to attend a parenting orders program

ORDERS

1. That the parties have equal shared parental responsibility for the children of the marriage namely [W] born [in] 1995, [X] born [in] 1998, [Y] born [in] 2003, [Z] born [in] 2005.

2. That the child [W] live with the husband.

3. That the child [W] spend time with the wife in accordance with his wishes, such time to coincide with the time spent by [X], [Y] and [Z] and the husband use his best endeavours to facilitate and encourage such time.

4. That as and from the conclusion of the school term this year, the children [X], [Y] and [Z] (“the children”) live with the wife and the husband as follows:

   (a)from after school on Tuesday to after school on Tuesday of the following week and in each alternate week thereafter with the wife; and

   (b)from after school on Tuesday to after school on Tuesday of the following week and in every other week thereafter with the husband.

5. That the parents be at liberty to communicate with [W] and the children by telephone on Thursday and Sunday nights between 6.30pm and 7.00pm during those times the children are in the care of the other parent.

6. That the children spend time with their parents as follows:

   (a)with their father on Father’s Day each year from 9.00am to 5.00pm;

   (b)with their mother on Mother’s Day each year from 9.00am to 5.00pm;

   (c)at Christmas 2010 and in each alternate year thereafter from 1.00pm on Christmas Eve until 1.00pm on Christmas Day with the wife and from 1.00pm Christmas Day to 5.00pm on Boxing Day with the husband;

   (d)at Christmas 2011 and in each alternate year thereafter from 1.00pm on Christmas Eve until 1.00pm on Christmas Day with the husband and from 1.00pm Christmas Day to 5.00pm on Boxing Day with the wife;

   (e)for one-half of the school holiday periods, save that in the event of the wife being able to purchase and wishing to take that leave with the children during their school holidays, the husband’s time with the children during those school holidays will, on reasonable notice, be suspended to enable that time to occur with the wife being a period of no more than two (2) weeks, with such time not to include the Christmas/Boxing Day period; and

   (f)such other times as are agreed between the parties.

7. The parent with whom the children are to commence spending time or their nominee shall collect the children from school/day care as applicable during the school term and from the other parent’s residence, should the children not be at school or day care.

8. In the event of either parent seeking to take the children on an extended holiday, they shall give the other parent not less than one month’s written notice of the dates of the intended holiday and a detailed itinerary of travel including details of the departure and return date, flight number if applicable and accommodation details, such holidays to be only taken during the Queensland gazetted school holidays, not exceed more than three weeks and not include Christmas or birthdays (without the agreement of the other party).

9. The parties should keep each other informed of their contact telephone number and addresses and will advise each other within 48 hours should there be a change to such details and to give effect to these orders the husband will forthwith obtain a mobile telephone and advise the wife of the telephone number.

10. The parties shall advise each other as soon as practicable of any emergency, serious illness, accident or hospitalisation involving the children following such an event including the name and contact details of the treating doctor and/or hospital.

11. The parties take such steps as are reasonably required to enrol the children in a school located no more than 25 minutes drive from Property R with first preference to be the [S] School and if unavailable then [V] School.

12. The parties shall ensure that the children attend all sporting, musical, hobby events, practices and rehearsals when the children are with that parent.

13. This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other professional persons dealing with the children to provide any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and after their request and at their individual expense (if any).

14. The parties will until otherwise agreed, continue to use a communication book to convey any issues in respect of the children’s welfare.

15. The parties attend upon a Family Advisor at the nearest Family Relationship Centre for the purpose of assessment and referral to an appropriate agency in relation to:

    (a)a parenting program; and

    (b)such course or counselling that may be available to assist them in addressing the issues affecting the relationship between [W] and his mother and father.

16. The process to be used for resolving future disputes about the children or the terms or operation of these orders shall be as follows:

    (a)Relationships Australia shall be appointed as a family dispute resolution practitioner;

    (b)the parents shall consult with the family dispute resolution practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;

    (c)they shall pay all of the costs of the family dispute resolution practitioner equally;

    (d)in the event that they are unable to, for any reason, to have an appointment with the family dispute resolution practitioner and cannot agree on an alternate family dispute resolution practitioner, the wife shall nominate three practitioners and advise in writing details of their fees, experience and availability; and

    (e)the husband shall choose one of the listed practitioners within seven days of the receipt of the list.

17. That as and by way of property settlement:

    (a)subject to the wife complying with the provisions of paragraph 17(c) of these orders, within sixty days of the date of this order the husband transfer to the wife all of his right, title and interest in Property R, Queensland being more particularly described as Lot [omitted], the cost of the preparation and registration of the transfer to be at the wife’s expense;

    (b)the wife indemnify the husband and keep him indemnified in respect of any outgoings and liabilities relating to the said property;

    (c)the wife within sixty days of the date of these orders, pay to the husband simultaneously with the transfer of the property the sum of $266,115;

    (d)that in the event of  the wife being in default of the provisions of paragraph 17(c) of these orders for a period of seven days or more the parties take all such steps and do such things as are reasonably required to list the property at Property R for sale;

    (e)there be liberty to the parties to apply in respect of the terms and conditions of sale;

    (f)there be liberty to the parties to make and offer for the property

    (g)the husband retain all his right, title and interest in and the wife forgo all her right, title and interest in:

    (i)     the [G] business;

    (ii)the Holden Jackaroo motor vehicle registration number [omitted];

    (iii)the husband’s superannuation entitlements with the [A] Fund

    (iv)   the husband’s superannuation entitlements with Suncorp;

    (v)all bank accounts, credit union accounts and other accounts held by the husband in his sole name;

    (vi)the thirteen foot boat (tinny) and trailer currently in the husband’s possession;

    (vii)the shipping container currently at the former matrimonial home;

    (viii)  the furniture and contents in the possession of the husband.

    (h)the wife retain all her right, title and interest in and the husband forgo all his right, title and interest in:

    (i)     the Toyota Prado motor vehicle in the wife’s possession;

    (ii)    the wife’s superannuation entitlements with [C] Super;

    (iii)the wife’s superannuation entitlements with [D] Super in her accumulation account;

    (iv)all bank accounts, credit union accounts and other accounts held by the wife in her sole name;

    (v)the monies previously withdrawn by the wife from the joint line of credit with the Bank of Queensland under Account Number [omitted]; and

    (vi)   the furniture and contents in the possession of the wife.

18. That each party retain sole ownership of their long service and other employee Benefits.

19. That each party assume and bear liability for and attend to payment individually of all and any debts outstanding in his or her name and indemnify the other party with respect to any liability whatsoever attaching to such debts.

20. That each party be solely liable for and indemnify the other party against any liability encumbering any item of property to which such party is entitled pursuant to these orders.

21. There be liberty to the parties to apply in respect of any consequential orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 7397 of 2009

MS WHITE

Applicant

And

MR GRIFFIN

Respondent

REASONS FOR JUDGMENT

1. The parties to these proceedings seek orders in respect of children’s and financial issues.  They cannot agree whether:

   a)they should have shared care of their children or that the children should spend substantial time with their father; and

   b)their assets should be divided 50/50 or 60/40 in favour of the wife.

Background

1. It is common ground that the parties:

   a)commenced their relationship in or about 1988;

   b)the parties married [in] 1992;

   c)at the date of commencement of cohabitation the husband had a 50 per cent interest in the [G] business;

   d)on 21 January 1993 the wife’s parents gifted a 2½ acre block of land at Property R to the parties upon which they subsequently built the former matrimonial home;

   e)the parties have had five children, one of whom namely [omitted] was stillborn on [date omitted] 1999.

   f)the eldest child [W] primarily resides with the husband whilst the three younger children, namely [X], [Y] and [Z] at present primarily live with the wife;

   g)the parties separated on 26 December 2007;

   h)the wife moved out of the matrimonial home and commenced living at [B] on or about 9 May 2008, on 3 November 2008 [W] commenced residing with the husband, the three younger children remaining with the wife.

2. The proceedings were commenced on 21 August 2009.

3. The trial in this matter commenced on 26 July 2010.

Evidence

The wife

1. In her Case Outline the wife sought to rely on:

   a)the Affidavit of Ms White sworn 9 July 2010;

   b)the Affidavit of Ms White sworn 7 June 2010;

   c)the Affidavit of Ms W sworn 27 October 2009;

   d)the Affidavit of Mr W sworn 27 October 2009;

   e)the Affidavit of Ms J sworn 17 November 2009;

   f)the Affidavit of Ms A sworn 25 June 2010;

   g)the Affidavit of Ms B sworn 7 June 2010; and

   h)her Amended Initiating Application filed 28 May 2010 (although not mentioned).

2. Orders were sought in terms of the minute of orders sought filed by her on 16 July 2010.

3. The applicant also sought to rely on:

   a)the Affidavit of Ms C sworn 20 July 2010;

   b)the Affidavit of Ms N sworn 23 July 2010; and

   c)the Affidavit of Mr C sworn 23 July 2010.

4. Objection was initially taken to the late filing of these Affidavits.  After hearing submissions from Counsel, leave was granted for the applicant to rely on those Affidavits.

5. Leave was further granted for the respondent to provide evidence-in-chief in response to any issues arising out of those Affidavits.  No evidence-in-chief was forthcoming or sought by counsel for the respondent.

6. The applicant was advised that in the event of any parties not being available for cross-examination, the Affidavits would be given appropriate weight at the end of the day.  The respondent did seek to cross-examine the wife’s parents.  They were not available and appropriate weight will be given to their documents in my Reasons.

7. The application to seek to contact them (they were apparently on a cruise) for their availability as to when they were docked on land as set out in paragraph 2 of the application of the wife was declined, on the grounds that it was made late and the trial directions were clear.  To now take the steps sought by the wife would not be fair to the husband.

8. Ms C was not sought to be cross-examined and the application to have her give evidence by telephone did not need to be addressed.

9. Counsel for the husband did not seek to cross-examine Ms J and

   
   

   Ms A.  The deponents for the other Affidavits filed by the wife were not available to give evidence.  Appropriate weight will therefore be given to their Affidavits.

10. The wife and Mr C gave evidence and were cross-examined.

Mr J – the report writer

1. The applicant did not, despite having raised a number of objections to the report of Mr J, seek to cross examine the report writer.  Neither did the husband.

2. An Affidavit was handed up by the agreement of the parties sworn by Mr J and containing his response to the criticisms of the wife contained in her Affidavit of 7 June 2010.  The parties agreed the Family Report of Mr J dated 13 December 2009 and the updated Family Report of Mr J dated 25 May 2010 together with his Affidavit sworn 26 July 2010 be accepted into evidence.

The husband

1. The husband sought to rely on:

   a)the re-amended Response to the Initiating Application sworn on 8 July 2010;

   b)his Financial Statement filed on 8 July 2010;

   c)his Affidavit sworn on 9 July 2010;

   d)the Affidavit of Ms G filed 7 July 2010;

   e)the Affidavit sworn by Mr B, Accountant, exhibiting the business valuation filed on 13 July 2010 (who was not sought for cross-examination); and

   f)the Affidavit of Mr M exhibiting his valuation of the former matrimonial home filed on 15 July 2010 (who was also not sought for cross-examination).

2. The husband gave evidence and was cross-examined.

3. The trial proceeded on 26 and 27 July 2010.

The children

1. The applicant and respondent separated on 26 December 2007 when the respondent moved into the Property W property owned by the parties.

2. From December 2007 until 18 May 2008 the children lived with the wife in the former matrimonial home spending time with the husband on Wednesday evenings and all day Sunday. 

3. On 19 May 2008 the wife travelled overseas on a planned holiday and by agreement the husband moved back into the matrimonial home to look after the children.

4. On or about 10 June 2008 the wife and children commenced residing in [B].

5. On 7 August 2008 the parties attended mediation with Relationships Australia and agreed on a shared care arrangement for the children being week about.

6. On 3 November 2008 [W] commenced residing on a full-time basis with his father, with the younger children continuing to spend a week with each parent.

7. On 3 August 2009 the wife retained the younger children raising a number of issues regarding their care by  the husband.

8. On 17 August 2009 the wife moved with the children to reside in [E] and the children commenced school at the [E] School and [E] Early Development Centre.

9. On 26 October 2009 consent orders were negotiated and the husband’s time with the children resumed on the basis that the husband spend time with them from Friday to Tuesday each alternate weekend.

10. That arrangement has remained in place until the current date.

11. The orders sought by the parties in respect of children’s issues each cover at least four pages.  It is therefore not proposed to set these out in the course of these Reasons save and except as set out below.

Orders sought by the wife

1. The wife in her minute of orders sought seeks to maintain the current arrangements for the three younger children.

2. She also at the trial sought an order in respect of the children’s schools.

3. She also sought orders in respect of her son [W].  The orders sought in respect of [W] include mandated time, a communication book (being a lockable diary for [W]’s and the wife’s communication only) and an order that he spend time with his maternal grandparents (although the grandparents are not parties to the proceedings).

4. The orders sought in respect of [W] were discussed during the wife’s closing submissions.  She conceded that in view of his age it would not be appropriate to make an order that was not in accordance with his wishes.

5. She also agreed that orders such as those sought by her for the lockable communication book for her and [W] had the potential to create more problems than they solved.

6. She also conceded that to avoid confusion it would be appropriate to allocate certain times for [W] to spend with her which include such other times as are agreed between the parties or ordered by the Court in respect of the younger children.

7. This would at least enable the wife and her husband to plan their lives rather than wait for [W] to express a wish to see her.  At the same time, [W] can be confident his mother wants a relationship with him and is prepared to let it proceed at a pace that is appropriate for both parties.

Orders sought by the husband

1. The husband in return sought orders that in effect provided for his time with the younger children to be week about with an order that [W] spend time with his mother in accordance with his wishes.  He agreed that time should coincide with that of the other children.

2. The husband also at trial sought orders in respect of the children’s school, presenting proposals different to those of the wife.

3. The husband accepted the wife’s concessions in respect of [W].  Both parties in effect acknowledged [W]’s age, his expressed wishes and his relationship with his father.  This does not however, in any way absolve the parties from the work that needs to be done to assist [W]’s relationship with his mother.

4. I therefore would make orders accordingly and when referring to the children hereafter do so on the basis that I am referring to [X], [Y] and [Z], the three younger children.

Agreed orders

1. Each party agreed that:

   a)there should be an order for equal shared parental responsibility of all of the children; and

   b)there should be orders in respect of special days being Father’s Day, Mother’s Day, and Christmas.

2. Agreement was also reached that the parties would make all reasonable efforts to ensure the younger children spend time with [M], Mr C’s daughter from another relationship, for her birthday and her visits to Mr C’s residence every third weekend during the school term and for half of the school holidays.

1. The wife had the capacity to purchase eight weeks of annual leave pursuant to her current employment.  In the event that the parties have half of the school holidays with the children and in the event that the wife provides the husband with reasonable notice, then the husband would agree to the wife having a further two weeks of the school holidays with the children on the basis that she would be available to spend the time with the children during that period.

2. They also agreed that:

   a)they would each attend a parenting orders program;

   b)Mr C indicated that he would also attend a parenting orders program (although that would not be ordered);

   c)they would each seek assistance in taking steps to resolve the relationship difficulties between [W] and his mother; and

   d)they would, for the time being, continue to use the communication book although it is hoped that that would no longer be required as matters progressed.

3. I would note the agreement in paragraph (b) above and make orders to reflect the terms of paragraphs (a), (c) and (d) of the above paragraph.

The Parties

1. This trial started on the basis that the wife could see no way of communicating with the husband other than through a communication book.  She was critical of the fact that she raised issues with him through the communication book and that he did not respond.

2. When asked whether she would be prepared to take steps to speak with the husband face to face or by way of telephone she was adamant that she did not want to talk with him.  It was suggested that he wanted to draw a line in the sand and work on improving the communication between the parties. She could not agree with that because of what she saw as having happened in the past.  She was clear that she saw the communication book as the only means of effective communication.

3. The wife is an intelligent and articulate woman who is employed as a [omitted].  She was self-represented and conducted her case to the best of her ability.  She was able to conduct a cross-examination of the husband which lasted approximately half a day.

4. In the course of that cross-examination, the exchange between the parties on occasion lapsed almost into a conversation.  In the course of that “conversation” the parties were able to reach an agreement on a minor issue regarding the arrangements for the children.

5. When this was brought to their attention, the wife’s response was that the matters had gone well because the parties were under supervision (surely this is analogous to mediation).  Nevertheless, the exchange was able to occur and without prompting, an agreement was able to be reached.

6. Whilst it is not the time to be overly optimistic regarding the future for these parties considering their failure to communicate in the past, it is certainly something to be noted as a possible small step towards a more civil relationship between two parents who clearly love and respect their children.

7. The husband presented as a physically large, confident man. He was able to express himself well and answered questions with confidence.

8. On some issues he was prepared to make appropriate and obvious concessions.  He presented as concerned about his son and conceded readily that [W] needed his mother in his life.

9. He also conceded the parties needed to communicate more about the children.

10. There were times however, when he appeared to lack any perception of the effect of his actions.  He could not, for example, concede that:

    a)his emotions surrounding the breakup (which had affected him) had affected his son and that [W], amongst other things, may have felt the need to support his father;

    b)if [W] had a problem with his mother, that whilst his son’s wishes needed to be recognised, he still had a responsibility as a parent to work on, and if possible, rectify the issues that [W] had.  It was not a problem that was just between [W] and his mother.  It existed for the parents and their son and he may need to do more, for example, than leave matters to [W] when it came to the issue of maintaining a relationship with his mother and the maternal grandparents.  It is not enough to say that he was free to pick up the phone or to visit at any time (he needs to take some responsibility and address the issues that led to the dilemma currently facing this fifteen year old boy); and

    c)refusing to have a mobile phone made communication difficult, especially when there are any crises or in the normal course of running a family that is not living under the one roof it was necessary to communicate with the other party, that a mobile phone would make it that much easier and may assist to reduce the potential for any possible crises.

11. It needs to be noted that neither parent on the day had any serious criticism of the other’s parenting capacity (which is not to say there are matters that need to be addressed).  The husband made it clear that he considered the wife to be a good mother. He did not accept however that it was in the children’s best interests to continue with the current arrangements.

12. For the wife the issue came down to whether or not she was able to trust the husband to commit to the job of supporting the children including all of those necessary events that all parents must meet such as parent teacher interviews, medical appointments, and in the case of their young daughter [Y], the difficulties that have been encountered by her in progressing her learning skills.  In the event of the husband having to rely on third parties for assistance then she wanted that standard of care to be consistent.

Family Report

1. The first Family Report was completed by Mr J on 13 December 2009.  It is notable that in the first report at paragraph 3.5.2.4 Mr J reports that:

   When she (the wife) returned from overseas, the children were returned to her care.  She said the children then told her they had to have seven nights with each parent for things to be fair. 

2. Mr J goes on to report that in his interviews with the children, the three youngest expressed a wish to spend more time with their father.

3. His thoughts at that time were that there should not be a change to the current arrangements subsequent to a review within four months.  One of his reasons for the cautious approach was that at the time of the interviews being conducted, the children had only spent two weekends with their father and he thought that this may affect their presentation at the time of the report.

4. The second Report was published on 25 May 2010 with the children having been seen on or about 29 April 2010.

5. [W]’s wishes remained consistent in that he did not wish to resume spending time with his mother.  The report writer noted that:

   When asked what it would take to his relationship with his mother to be repaired, [W] said, “if she leaves Dad alone and the kids have 50/50”.  He then referred to his mother “keeping the kids and moving to [E]”.

   [X] indicated that he had not changed his views about the arrangements since he was last spoken to and still wanted week about.

6. [Y] (aged 6 years) and [Z] (aged 4 years) were also seen by the report writer and were observed to be comfortable and enjoy the company of each parent with [Y] expressing a wish to have the same days with her mother and her father.  Their ages however, need to be brought to account.

7. The report writer notes at paragraph 11.2.2 of his updated Family Report that:

   Having spoken to the children on three occasions now I note that their views have remained consistent on each occasion.  [X] clearly has a preference for spending more time with his father.  At the latest interviews he expressed a desire for week about equal shared care.  He said that he would not be devastated if it did not occur.

8. Following his investigations which included interviews with [X]’s and [Y]’s school teachers, he recommended that:

   a)the parties have equal shared parental responsibility with the respect to [X], [Y] and [Z];

   b)[W] live with his father and the husband be responsible for his care;

   c)the children spend half their holidays with each parent with suitable arrangements for special days; and

   d)amongst other things, that the children attend a school within reasonable travelling distance and that the parents attend a parenting orders program in order to enhance their communication.

9. The wife on 6 July filed an Affidavit which contained some detailed criticisms of Mr J’s report. 

10. As previously stated, Mr J by Affidavit sworn 26 July 2010, provided the Court with his answers to those criticisms.

11. The Affidavit contains a detailed response to each criticism made by the wife.  Neither party sought to cross-examine Mr J.  The wife was advised that if he was not sought for cross-examination then his evidence including his Affidavit addressing her criticisms would go unchallenged.

12. One of the issues raised by the wife for example, was the criticism that the report writer did not engage Mr C in the report as requested.  At paragraph 21.3 of the updated report, Mr J states that:

    I did not feel the need to interview Mr C.  No issues were raised by the three youngest children in relation to their mother’s partner and the issue of their relationship with Mr C was not an issue in question or one that made up any significant component of the dispute between the parties.  Mr Griffin did not raise any concerns about Ms White’s partner.

13. Mr J also states at paragraph 21.1:

    That prior to the first report, Ms White specifically requested that her partner was not to attend the report interviews as [W] had not met him and she felt that it would be too difficult for [W].  I agreed.

14. Furthermore he states at paragraph 21.4:

    That had Mr C attended the updated report interviews I would have been happy to speak with him.

15. I have perused the Affidavit of Mr J and note that he has answered each criticism with particular care.

16. The reports and the Affidavit were not challenged. The evidence did not establish any flaw in the report process.  In the circumstances, I do not accept the wife’s criticisms of the reports by Mr J.

The law

1. The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).

2. Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have in regard to s.60CC.

3. Section 60B(2) of the Act provides that:

   The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):

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

   (b)children have the 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)the 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).

4. Section 60CA of the Act states that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).

6. I propose to address those matters in the course of these Reasons and will not set them out here.

7. The parties agree that they should have equal shared parental responsibility for the children. I have accepted that agreement and will, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents.  These considerations include whether such an order would be:

   a)in the best interests of the children; and

   b)whether the children spending that time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).

8. I will refer to these matters later in these Reasons.

The Children’s Best Interests

1. I will turn now to a consideration of the matters set out in s.60CC of the Act in determining the best interests of the children.

SECTION 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents

1. Neither party submits that there is no benefit to the children having a meaningful relationship with the other party.

2. The issue revolves around the terms and conditions upon which that relationship should occur.

3. How that relationship should be maintained in view of the distance between the parties, initiated by the wife’s decision to relocate with the children to [E], is a matter that will be discussed further in these Reasons.

SECTION 60CC(2)(b) - the need to protect the child from physical or psychological harm being subjected to, or exposed to, abuse, neglect or family violence

1. The parties according to the wife agreed to separate in October 2007.  The husband in his Affidavit says this was 26 December 2007.  The husband moved out of the matrimonial home, the wife remaining living there with all four children.

2. The separation according to the wife started on an amicable basis,  however started to deteriorate when some two weeks after the separation date, the wife in response to a request from the husband to return home, confirmed that the separation was permanent.

3. In April 2009 the wife made a unilateral decision to relocate with the children to [E].  She alleges that the husband was harassing her and refers in her documents to incidents that she says are examples of his “invasive behaviour”.   

4. A Protection  Order was sought in September 2009.  The matter did not proceed to a final hearing as the wife suffered the neo-natal death of her child [name omitted] in January.  As a consequence she did not attend the hearing for the Application.  A further Application was lodged and was resolved on an undertaking being accepted from the husband with mandatory conditions (requiring, amongst other things, that he be of good behaviour to the wife) on 14 April 2010, such undertaking being provided without admission.

5. The husband continued to deny the allegations at the trial.  The wife in her cross-examination of the husband did not extract any concessions from the husband.

6. The wife did not make available any witnesses who may corroborate her concerns.  The Affidavits of Ms J and Ms A refer, amongst other things, to the wife’s recounting of events that occurred in the period following the parties’ separation.  They do not take those matters further.

7. From the evidence, it is clear that the parties were in the process of separation and it is clear that their communication was not good. 

8. The wife acted out of concern for what she saw as the husband’s abusive or invasive behaviour and in effect withdrew from communicating with the husband save for the communication book.

9. Nevertheless in this period of time they managed to attend mediation and put in place an arrangement whereby the children spent regular time with each of them.  Save for the break referred to previously, the children have continued to move between the homes of their parents without incident.

10. I am unable to conclude on the evidence before me that there is a need to protect the children from the risk of harm as set out above.

SECTION 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. Pursuant to orders of this Court, the children were interviewed by

   
   

   Mr J, Psychologist and Regulation 7 Consultant.

2. The report writer noted at paragraph 9.13 of his first report

   
   

   (30 December 2009) that:

   [X] expressed a view that he would like to spend more time with his father than with his mother.  [Y] expressed a view that she would like to spend equal time with each parent.  [Z] did not express a view either way, but stated that she is now happy that she is seeing more of her father.

3. He went on to say at paragraph 9.14 that:

   At this point in time, if weight were given to the children’s views, one would have to say that three out of four of them want to spend more time with their father.  However, I am concerned about giving too much weight to the children’s views at this time.  At the time of the interviews, the children had spent only two weekends with their father following a long period of not seeing him.  It is possible and even probable that their views were influenced by the excitement of their recently re-established contact with their father and grandmother.

4. Pursuant to his recommendations a second report was undertaken and published on 25 May 2010.

5. Mr J in his report noted that:

   11.2.1In my original report, I noted the wishes of the children.   I was reluctant at that time to place too much weight on [X]’s and [Y]’s expressed desire to spend more time with their father as they had only recently commenced spending time with him again.  I felt that it was appropriate to allow a little more time to elapse before considering their views.

   11.2.2Having spoken to the children on three occasions, I note that their views have remained consistent on each occasion.  [X] clearly has a preference for spending more time with his father.  At the latest interviews, he expressed a desire for week about equal shared care.  He said that he would not be devastated if it did not occur.  However, I note the comments of Ms L with respect to her concerns about [X] and [X]’s expressions to her about what she wants.

6. Ms L, [X]’s current teacher, advised Mr J that [X] had quite clearly expressed to her that he is desperate to live with his father.

7. This is a matter where the husband, since the parties separated, has spent regular time with the children.  By agreement he lived with them whilst the wife took her overseas holiday. From August 2008 to August 2009 they lived with each parent on a weekly basis.

8. There was nothing of significance in the evidence of the parties to suggest that the wishes of the children had changed.  I accept Mr J’s reporting of the children’s wishes and his recommendation contained in paragraph 11.2.21 of his updated Family Report that the children's views need to be given strong consideration.

SECTION 60CC(3)(b) - the nature of the relationship of the child with:

(a)   each of the child’s parents, and

1. It is common ground that [W] does not have a good relationship with his mother.

2. Whilst there are often difficulties associated with the family going through the process of separation, there does not appear to be any criticism of significance of the relationship with the children with either parent.

3. I also note the comments of Mr J in his updated Family Report that the manner in which each parent managed the children caused him to have no concern as to their parenting.  There was nothing in the evidence presented to me that would challenge this conclusion.

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

1. Mr J in his second report at paragraph 11.2.31 states:

   It is also important to consider the children's relationships with their elder brother, [W].  In reducing the time that the children spend with their father, the time that they spend with [W] has also been significantly reduced.  The sibling relationship under most circumstances outlives the relationships that children have with their parents.  Siblings can provide immeasurable support that is life-long.  This is particularly pertinent for [X] and [W] who are reasonably close in age.   I note that [Z] adores [W].

1. He makes a particularly significant point.

2. Whilst the wife raised some concerns as to the relationship that [W] has with the maternal grandparents who live nearby, this appeared to relate to the frequency of [W]'s contact with and visits to his grandparents.

3. I note the report writer notes at paragraph 8.2.5 of his second Report that the relationship between [W] and his maternal grandparents appeared to be generally affectionate.

4. There was no criticism of significance, of the relationship with the children with the paternal grandmother or maternal grandparents.

SECTION 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing a close relationship between the child and the parent

1. At the commencement of this trial, having read the documents, I had some concerns about the parties’ willingness to facilitate and encourage a close and continuing relationship between the children and the other parent.

2. In particular, I had concerns about the fact that the wife said she could not communicate with the husband in any way save and except through a communication book.

3. The parties were in the close confines of the courtroom for two days.  As set out at the commencement of these Reasons, I noted that as the wife was representing herself, she was required to cross-examine the husband. The cross-examination at times almost reflected a conversation from which the parties were able to extract one or two minor agreements.

4. In that moment they demonstrated an ability to communicate in a child focussed way with some constructive solutions being suggested for the management of this matter.

5. Mr J noted at paragraph 11.2.2.7 of his second Report that:

   Ms White is concerned that if [X] spends greater amounts of time with his father, and indeed if the other children also do, that

   
   

   Mr Griffin may turn them against her.  I do not believe that this is the case.  There is insufficient evidence before me to indicate that the husband would alienate the children from the wife.  If anything I believe that the wife’s actions in reducing the time the children spend with their father, would be more likely to result in the alienation. 

6. I have noted my concern that the parties have displayed some lack of insight into the effect of their actions.  At times, neither of them appeared to appreciate the positive obligation on them to encourage and facilitate the children’s relationship with the other parent.

7. I note for example the wife’s evidence that the children were able to have photographs of their father or access to photographs of him at any time.  These were apparently kept in an album.  When asked if she would agree to these photographs being put up in the bedroom, her response was it would be confusing for them.  This is at odds with someone who was wanting to show a willingness to facilitate the children's relationship with their father.

8. At the same time, I have some concerns that the husband is not appropriately acknowledging that [W]’s issues with his mother and the fact that they have been ongoing for over a year is a matter for serious concern for the parents.

9. I note his evidence that the children, [W] in particular, were free to visit the maternal grandparents and they had [W]’s phone number.  I note the wife’s criticisms that he did not answer her queries in the communication book, such as the question about the Medicare voucher, saying he already had one and did not need to respond.

10. I am hopeful that the passage of time and the exchange of communication that I witnessed in the Court may herald the beginning of increased communications between the parents.

11. Whilst there appears to be a same willingness to facilitate and encourage the relationship between the children and the other parent by the parties, they concede their ability to do so needs to be enhanced.

12. I am not convinced however that left alone this matter would continue to improve.  I therefore note the recommendations of the report writer that the parties attend a parenting orders program and note to the parties’ credit that those orders can be made by consent.

SECTION 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(a)   either of his or her parents; or

(b)   any other child, or other person

1. Some comments made by the report writer are pertinent when considering this matter.  They suggest that the changes that have occurred should be recitifed.

2. Mr J comments in his report that the changes made to date have certainly affected the children.  He notes at paragraph 11.2.22 of his second Report that:

   There is little doubt in my mind that [X] resented being removed from his school.  [Y] certainly missed her father.  Moreover, it appears that no attempt was made to allow the husband to spend time with the children over a three month period after the wife relocated.  He had to find out where they were attending school himself.  I think that significant emotional harm occurred to the children as a result of this relocation.

3. At paragraph 11.2.25 the comments that the only child who appears to have emerged relatively unscathed as a result of the separation, is [Z].  She is probably too young to have been damaged by what occurred.

4. I have previously noted his comments at paragraph 11.2.31 of his updated Report about the effect of the separation of the children from [W].

5. He comments at paragraph 11.2.33 of the second Report that:

   If school changes are going to occur, then now is a better time than any.  [X] is about to complete Year 7 and move onto high school.  [Z] is in prep so it will not be entirely unreasonable for her to attend a different school for Year 1.  [Y] has required specific assistance and is the child who is most likely to experience some difficulty with a change in school.  Still, I believe that this will be outweighed by the benefits of having additional time with her father.  It is open to conclude that the likely effect of any changes in the children’s circumstances are with the right management likely to be beneficial to the children in their relationship with their siblings, their father, and their mother.

6. I note the wife in her evidence has contemplated bringing the children back to the [S] area.

7. The parties at trial sought an order in the event that I accepted the recommendations of the report writer that the children attend a particular school.  They each favoured different schools in the [R] area, the husband favouring [V] and the wife favouring [S].

8. Neither produced any evidence of merit that would enable the Court to make a decision.

9. Each appeared to accept that [X] and [Y] were experiencing difficulties at school and may need some extra assistance.  It was therefore important that the school be able (if possible taking into account that it also had to be convenient to the parties’ homes) to provide this.

10. It was not possible at the time of the trial to say where both parties would be residing only that one of them would be likely to be living at Property R.  (The husband’s business is located some 13 kilometres from Property R so it is open to assume that he will remain residing in the area).

11. It was apparent that the parties would have trouble funding private school fees and that a return to the children’s former school would be difficult.

12. The wife’s evidence was that the [S] school was more likely to be in a position to support the needs of the children

13. I am anxious to avoid the necessity for the parties to return to Court and would therefore make an order that provided for the parties to enrol the children in a school in the area with the first preference to be given to the [S] school and if unavailable , then the [V] school.

14. Consideration needs to be given to when the change should be made.  The children are currently part-way through the fourth term at their present school.  It would be appropriate that they finish the academic year.

15. The practical difficulty and expense is noted below.  Leaving the children at their current school, pending the changes proposed, would reduce this.

SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. As matters currently stand, the practical difficulty and expense of the children spending time with their father is significant.  As the report writer notes at paragraph 11.2.32:

   I think the husband’s complaints about having to drive to [E] to deliver the children to school are reasonable.  It follows that I support his proposal that the children should attend a school that is closer to his residence at [R].  This may or may not be a huge dilemma for Ms White.  There is some suggestion that she may intend to relocate to [S].  The husband’s business is at [G].  The wife is currently residing at [E].

2. The orders that I will be making will bring the wife and the children back into close proximity with the husband.

3. It was conceded during the evidence given on the part of the wife that consideration had been given to moving to [S].

4. Both parties acknowledge the current practical difficulty and expense for the children and the parties when they were seeking to spend time with and communicate with the other parent.

5. Both parties had given consideration to the children being returned to the area of the former matrimonial home.

6. Once the orders in respect of the division of the matrimonial assets are put into place I consider that the issue of the practical difficulty and expense will be addressed.

SECTION 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The wife raises concerns regarding the husband's ability to care for the children due to his work commitments.  Her case was that he had to depend on the assistance of third parties and that this was not appropriate.  At the commencement of her case she said that regardless of who cares for the children any third party care must be consistent with the children's needs.

2. The husband is employed on a full-time basis in his business which is [omitted].  The wife is employed on a full-time basis as a [omitted].  Each party has attempted to arrange for some flexibility with their employment, however at the end of the day reliance is placed on after-school care and the assistance of people such as the children's grandparents.

3. Both parties gave evidence about the children’s current schooling issues.  Both noted amongst other things, [X]’s current difficulties and [Y]’s need for extra help at school.

4. Whilst I have noted the concerns of the parties, I do not consider that there is any significant issue regarding the capacity of the children's parents save and except for their communication (on which I have commented), or any other person to provide for the needs of the children.

SECTION 60CC(3)(g) - the maturity, sex, lifestyle and background of the child

1. I have commented elsewhere in these Reasons on the ages of the children.  The report writer has provided his comments in respect of their maturity, sex, lifestyle and background.  I accept his evidence.

SECTION 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Island child:

(i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)   the likely impact any proposed parenting order under this Part will have on that right

1. This provision is not relevant to my decision.

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

1. Whilst each parent overall displayed an appropriate attitude to the children and the responsibilities of parenthood there are some matters that did cause concern. 

2. The wife, for example, when she enrolled the children at the new school did not provide the school with details of the contact number for the husband.  Her evidence was that was not her responsibility to provide details of his contact number.  This ignores the fact that she was there, she knew the number, could have provided it easily and would have thereby provided the school with an alternative contact number should she be an unavailable and there be a crisis that involved their children.

3. She also had difficulty conceding that it would be in the best interests of the children if they were encouraged to have a photograph of their father in their bedroom whilst they were at her residence.

4. The husband on the other hand had difficulty in understanding that if his son had a difficult relationship with his mother then that presented as a problem for him as a parent.  He also could not perceive that [W] may have been affected by his father’s reaction to the breakdown of the marriage.

5. These examples would suggest that each parent has at some time during this process forgotten the responsibility of parents to encourage a relationship with the child's other parent.

6. At the same time each party concedes that the other has displayed an active interest in the welfare of the children and it is hoped that examples such as those set out above will diminish with the passage of time.

SECTION 60CC(3)(j) – any family violence involving the child or a member of the child’s family

1. The wife made a number of allegations regarding the family violence.  The matter was not pressed in cross-examination which is not to say that she abandoned her claim.

2. The allegations were denied by the husband.  The wife in the past has made two applications for violence restraining orders.  The end result is that the husband on his evidence to conclude the proceedings, without admission, made appropriate undertakings to the Court.

3. The husband is not a small man.  It may well be the case that the wife found his physical size, particularly in the context of the distress of the separation, imposing.  She refers in her documents to his invasive behaviour.  Some events occurred which the wife attributes to the husband such as the scratching of the car.  There was no other evidence however that would enable me to take the next step and attribute that to the husband.  I am unable however, save for commenting on how the wife may have perceived the actions of the husband, to find that there was any family violence involving the child or a member of the child's family.

SECTION 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family

1. The husband without admission made an undertaking to the Court of Petty Sessions.  That undertaking allows for the usual exception in respect of an order of the Federal Magistrates Court.  It is not proposed to take the matter further. 

SECTION 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. The children have had experience of a shared care arrangement whereby they spent week about with each parent prior to these proceedings being instituted.

2. They have on two occasions expressed a clear view to the report writer that they wish to resume these arrangements.

3. That is not to say that the responsibility for the arrangements lies on their shoulders.  It is merely to note that in view of the above, the children see these arrangements as something they wish to move towards.  In other words, if matters are left as they are, as the children get older it is likely that there will be pressure to at least, move toward a week about arrangement in any event.  At worst, the children’s relationship with their mother could suffer.

4. As Mr J notes at paragraph 11.2.25 that:

   Normally, in a case where communication is poor between the parents, this would militate against an equal shared care arrangement.  I recognise this and in most matters where this is the case, I would not recommend an equal shared care arrangement.  However, I believe that children’s relationships with their parents needs to be weighed against the difficulties that may arise with equal shared care due to communication problems between the parents.  In this instance, I believe the children highly value their relationships with their father.  The only child who appears to have emerged relatively unscathed as a result of the separation, is [Z].  She is probably too young to have been damaged by what occurred.  Certainly there has been damage to [W]’s relationship with his mother and certainly, there has been interruption to the relationships between [X] and [Y] and their father.  I believe this is caused them to experience significant grief.

5. Having regard to the parties and in view of the history of this matter, the evidence and the recommendations of the report writer, I consider that this is something that should be addressed sooner rather than later.

Section 60CC(4) - Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. The wife would suggest that the husband has on occasion failed to fulfil his responsibilities as a parent.  She mentions by way of example, that he was a failure when he did not collect the children from school at the beginning of this year.

2. The husband's evidence is that he was caught in a traffic jam and was unable to contact the school or the wife (not having a mobile phone) to advise of his predicament.

3. Her position is that the husband needs to be there for the children.  The husband's evidence is that he is able to do this and in the time that he currently has with the children has done so.  In the event that he is not available then he is able to call on the services of his mother and those provided by the after school care.

4. Mrs Griffin senior, filed an Affidavit confirming her support for the husband.  She was not required to give evidence.

5. I accept this and do not consider the evidence has established any significant criticism of the extent to which each parent has failed to fulfil their responsibilities.  Work needs to be done on their communication and orders have been made to reflect this.  The children however need both parents and need to spend time with their brother, [W].

6. In the circumstances, I consider it appropriate that for the reasons set out above, orders be made for the children to live with each parent week about, as set out in the orders at the commencement of these Reasons.

Division of matrimonial Assets

1. As previously stated, the issues for the parties are:

   a)whether or not the division of the matrimonial assets was 50 per cent each or 60/40 in favour of the wife; and

   b)the question of what monies should be added back into the matrimonial pool having regard to the drawings of the wife from the joint line of credit secured against one of the parties’ properties post separation.

2. These matters will be addressed in due course.

THE LAW

1. In determining what orders should be made for the division of the matrimonial assets I am required to take an approach that involves four inter-related steps, namely to:

   a)identify and value the property, liabilities and financial resources of the parties at the date of the hearing (“the asset pool”); 

   b)identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) of the Family Law Act 1975 (“the Act”), and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“the contributions”);

   c)identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) of the Act so far as they are relevant and determine the adjustment (if any) that should be made to the contributions-based entitlements the parties established at step two (“financial resources and needs”); and

   d)consider the effect of these findings and determination and resolve what order is just and equitable in all the circumstances of the case (see Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) [2003] FLC 93-143).

The Asset Pool

1. The parties agreed that the matrimonial assets comprised the following:

Property R, [R]

$475,000.00

Net proceeds of sale of land at Property W $70,590.01 (note sale proceeds have been divided equally between the parties and it is accepted this forms part of the pool, the parties did not seek to bring to account the $10,000 they each received pursuant to previous orders of this Court)

$70,590.01

Holden Jackaroo

$4,500.00

Trade-in Holden Astra

$12,500.00

Boat and trailer

$3,500.00

Shipping container

$3,000.00

Furniture and contents in husband’s possession

$25,000.00

Furniture and contents in wife’s possession

$25,000.00

Husband’s share and [G] business

$44,500.00

Bank of Queensland Ultimate Account No 2 (husband)

$223.00

Bank of Queensland Reverse Charges Account (wife)

$800.00

Wife’s superannuation:

i)       [C]

ii)     [D] Super Defined Benefit (current value) (Exhibit B)

        [D] Super Accumulation Account

$5,469.00

$159,783.76

$7,102.80

Husband’s superannuation:

i)      [A] Superannuation

ii)     Suncorp Personal Super Lifesaver Policy

$2,026.46

$12,444.00

Liabilities:

Wife’s ANZ Credit Account

$4,500.00

1. The wife sought to argue that her superannuation should be brought to account at the value of the fund at the date of separation.  She argues that whilst she continued to contribute to her fund, the husband made none to his.  I do not accept that submission.  I consider it appropriate to have the wife’s superannuation included at the current value and will address the rise in value and contributions later in these Reasons.

2. It is agreed by the parties that as at the date of separation there was an amount of $174,880.86 owing on the line of credit.

3. It is also agreed that the closing balance of the line of credit, being paid out from the proceeds of the sale of the parties’ property was $301,393.54.

4. The parties could not agree as to what proportion of the $126,512.68 should be added back into the matrimonial asset pool save for the fact that it was conceded by the wife that the sum of $30,000 withdrawn by her to pay for a holiday should be added back. The issue of whether the remaining sum of $96,512.68 should be added back is addressed below.

Add-backs

1. In Re NHC and RCH (2004) FLC 93-204 the Full Court summarised earlier Full Court authorities on the issue and said:

   56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.

   57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the Benefit of them.

   58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.

   59. Outstanding legal fees themselves are generally not taken into account as a liability.

   60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.

2. To some extent, one of the issues is whether it can be said there has been a premature distribution of a proportion of the matrimonial assets (Townsend & Townsend 1995 FLC 92-569 Nicholson CJ at 81,654) from funds that existed at separation. In addition, consideration may be given to the purpose for which the funds were used as it is important to distinguish a premature distribution of the assets from expenditure on reasonable expenses.

3. As set out above, the issue is whether the sum of $96,512.68 should be added back (the wife having conceded the sum of $30,000). 

4. It is agreed that the wife contributed $72,246 of her wages post separation to the line of credit.  It is also agreed that the sum of $48,641 was applied to interest on the mortgage with a further sum of $23,605 being withdrawn by the wife for her own purposes making a total sum of $72,246.  I do not propose to deal with these amounts here and will consider the interest payments when considering the issue of contributions.  The exclusion of the funds deposited and withdrawn still leaves the issue of $96,512.68 to be considered.

5. The parties when presenting their closing submissions handed up a table showing the withdrawals and deposits to the account.  Not all items were agreed and whilst the table helped, it did not provide a complete explanation for the disbursement of funds.  I therefore will extract from it those items that are of assistance and that are not the subject of controversy.

6. The wife concedes that she drew out a sum of $25,243.76 for the purposes of setting up her new house.  I find this to be the use of joint funds for the wife’s purposes and would add this amount back (and would exclude the furniture and chattels in her possession from the pool).

7. She also concedes that she drew $22,232 for the purchase of the Astra motor vehicle.  This occurred after she returned the Jackaroo motor vehicle to the husband.  Again I consider this to be the use of joint funds for the wife’s purposes and would add that back (and exclude the value attributed to the subsequent trade in of that motor vehicle).

8. The parties agree that the husband withdrew a sum of $9,560 from the account and deposited a sum of $5,000.  There is no explanation for the expenditure of the money and I will therefore add back the sum of $4,560.

9. The parties agree:

   a)that bank charges were deducted and I find this amount to be $330;

   b)$8,550 was deducted to meet school fees for the children;

   c)$300 was deducted to meet day care fees; and

   d)$3,967 was deducted to pay the husband’s tax (this amount was withdrawn on 21 April 2008 to pay the husband’s BAS statement).

10. I find these to be all proper expenses of the parties which were appropriately paid from joint funds.

11. Sums of $22,779 and $2,200 were also withdrawn by the wife and applied to the living expenses for herself and the children.  She submits that these were used to meet the necessary expenses of the family taking into account the minimal financial support that the husband was able to pay.  I am not inclined, on the minimal and to a degree confusing evidence before me, to find that these were funds applied for the purposes of the wife, and would accept her evidence and not add these sums back.

12. This leaves an amount of approximately $6,351.68 unaccounted for.  I am unable to find these funds were taken by either party for their own use and would not add these monies back into the pool.

13. The wife argues that the protracted nature of these proceedings entitled her to draw against the line of credit to meet expenses bought about because of the proceedings.  I do not accept this.  There is nothing in the evidence before me to suggest that these proceedings were unduly extended by husband in such a manner that he should be obliged to cover the expenses referred to above.

Amounts to be added back to the matrimonial asset pool

1. For the reasons set out above I would therefore add back to the matrimonial asset pool:

Amount drawn down by the wife for the purposes of a holiday	$30,000
Funds drawn down for the motor vehicle	$22,232
Funds used by the wife to set up a new house	$25,243
Amount drawn down by the husband ($9,560) LESS the funds deposited ($5,000)	$4,560	$82,035

1. I would not add back:

Bank charges	$330.00
School fees	$550.00
Day care	$300.00
Husband’s tax	$3,967.00
Living expenses (wife and children)	$22,779.00
Unaccounted funds	$6,351.68
TOTAL	$44,477.68

1. This means that the matrimonial asset pool is comprised of:

Property R	$475,000.00
Net proceeds of sale of land at Property W $70,590.01 (rounded to $70,590) (note sale proceeds have been divided equally between the parties and it is accepted this forms part of the pool)	$70,590.00
Holden Jackaroo	$4,500.00
Trade-in Holden Astra (see Add backs)
Boat and trailer	$3,500.00
Shipping container	$3,000.00
Furniture and contents in husband’s possession	$25,000.00
Furniture and contents in wife’s possession (see Add backs)
Husband’s share and [G] business	$44,500.00
Bank of Queensland Ultimate Account No 2 (husband)	$223.00
Bank of Queensland Reverse Charges Account (wife)	$800.00
Wife’s superannuation: i)       [C] ii)     [D] Super Defined Benefit (Exhibit B)         [D] Super Accumulation Account	$5,469.00 $159,783.76 $7,102.80
Husband’s superannuation: i)      [A] Superannuation (rounded to $2,026) ii)     Suncorp Personal Super Lifesaver Policy	$2,026.00 $12,444.00	$813,938.76
ADD BACKS SUB-TOTAL Liabilities: Wife’s ANZ Credit Account TOTAL	$4,500.00	$82,035.00 $895,973.56 $891,473.56

Contributions

1. I must pursuant to the provisions of the Family Law Act 1975 (“the Act”), consider the financial and non-financial contributions made by the parties to the acquisition, conservation and improvement of the matrimonial assets and the contributions made by the parties to the welfare of the family.

Initial contributions

1. The parties concede that at the commencement of cohabitation the husband had a 50 per cent interest in the [G] business.  The husband says that this was purchased on 1 December 1990 for $36,000.

2. In view of the fact that some twenty years later the estimated value of the business was $44,500, I am not inclined to regard it as having an increased value at the commencement of cohabitation.

3. The parties also concede that when they got married the wife’s parents gifted one hectare of land at Property R to the wife and the property was registered in their joint names.  The parties subsequently built the former matrimonial home on that property.  The husband is currently residing in that property with [W]. 

4. The husband’s evidence is that the rateable value of the land at the time of the gift was approximately $52,000. The wife at paragraph 105 of her Affidavit sworn on 9 July 2010 says it was worth $150,000. There is no independent expert evidence as to its market value as at that date.  The parties still own that property (the husband currently residing there with [W]).  The land, unlike the business, has increased in value.

5. I am unable to find that the land had the value suggested by either party however I am inclined to consider that it was worth more than the rateable value of the land at the time.

6. The parties in the course of the marriage engaged in the buying and selling of some land.  Shortly after the parties married, for example, an investment property was purchased at [O].

7. In about September 2004 the parties purchased another investment property at Property W.

8. In July 2007 the [O] property was sold and the parties’ share of the proceeds amounting to $95,000 was deposited against the line of credit.

9. On 1 March 2010 the Property W property was sold and the joint line of credit of some $301,528.59 was paid out.  The remaining meant sale proceeds of $70,590.01 were divided equally between the parties.

10. The husband throughout the course of the marriage worked in the business known as the [G] business. 

11. The wife has, save for a period after each child was born, been employed as a [omitted].  In the latter part of the relationship, the wife’s income was superior to that of the husband.

12. Save for the initial contributions made by the parties being the assets held by the husband and the gift from the wife's family, there have been no significant external contributions made by or on behalf of the other party.

13. This is a relationship of some fourteen years.  The parties in the course of the relationship have had five children, four of whom are the subject of these proceedings.

14. Both parties worked to acquire, conserve and improve their assets. There is nothing before me that would support a finding that either party made a superior non-financial contribution to the acquisition, conservation and improvement of the assets.

15. Each contributed to the welfare of the family although it would appear that the wife, through her employment, was able to arrange more flexible conditions to enable her to be there for the children and have input into their commitments.  The husband’s evidence about his input into the children’s lives however was not seriously challenged.

16. In the circumstances I find that the significance of the wife’s initial contribution through her family has some effect when considering the parties’ overall contributions, particularly when the asset is still owned by the parties and has significantly increased in value.

17. The parties however separated in late 2007. 

18. The husband submits that since that time he has amongst other things, paid childcare fees of $3,360 to Ms T, paid the ABC Learning fees for [Y] in the sum of $2,771.28, paid some $16,233 being school fees for [W], paid the rates on the property in which he is residing in the sum $2,672.45, paid insurance of $474 and paid house and contents insurance for 2009 and 2010 of $3,650.78.

19. The wife on the other hand has not had the benefit of residing in the former matrimonial home and has contributed some $48,000 to the interest that accrued on the line of credit, used by the parties during the relationship.

20. In addition the wife has obtained a promotion and as a consequence has been able in the period since separation to significantly increase her superannuation entitlements with [D] Super.  On or about the date of separation her super had a value of $84,945.97.  The current agreed value for the fund is $159,783.76 meaning that it has almost doubled  (the accrued benefit multiple increasing from 2.202 in December 2007 to 2.708 in June 2010 with the Final Average Salary from $53,000 to $81,000).

21. The husband’s policy on the other hand has shown little, if any improvement.  The wife was cross-examined about any additional contributions she may have made.  A revised statement was sought from [D] Super during the trial.  After further consideration it appeared that the increase in the value of the fund was caused by an increase in the multiplier and the final salary which can be attributed to the increase in the wife’s number of years of service in that job and her increased remuneration arising from her promotion.

22. It is appropriate in the circumstances to acknowledge that the wife’s post separation contributions outweighed those of the husband.

23. I would therefore find that the appropriate division of the assets based on the contributions of the parties would be 58 per cent to the wife with 42 per cent to the husband.

Section 75(2) Financial needs and resources

1. The husband is aged 46 this year and is in reasonable health

2. The wife is aged 41 this year.  She says she has a degenerative kidney disease however no further evidence was led on that point.  That is, it was not possible on the evidence supplied to make any finding as to the impact any of this would have, and when.

3. The parties are each engaged in full-time employment, the wife as a [omitted] and the husband as a [omitted] in his own business.

4. The wife at present is in receipt of a superior income to that of the husband however that will in due course be affected by the wife’s plans to purchase further leave to be with the children during the school holiday break.

5. In addition the husband gave evidence of his plans to buy out his partner in the business who is currently unable to work as a [omitted] due to an injury he sustained.  He has gone so far as to make enquiries with the bank and in the course of those enquiries has advised the bank that he would be able to service the loan with an income of $91,000 per annum.  This would be a figure consistent with the evidence that he currently has an income as an equal partner in the business of approximately $45,000 per annum.  It is therefore likely that the parties will be in a position where their incomes will be similar.

6. The wife alleges that the husband takes cash from the business.  There was nothing in the evidence presented that would enable me to make this finding.  The husband’s business had just been the subject of a mini audit from the Australian Taxation Office in respect of the wages paid to a part-time employee. That matter was rectified and there were no further conclusions that I was able to draw from the evidence before me.

7. The evidence would suggest that at present each has the capacity to continue in appropriate gainful employment for the foreseeable future.

8. The parties acknowledge, and the orders will confirm, that [W] will reside with the husband.  They will otherwise share the care of the children although it is likely that pursuant to the agreement reached that the wife will have them for more of the school holidays.

9. Each party, following the division of the assets, will have reasonably onerous commitments to support themselves and their four children.

10. Neither party has a responsibility to support another person at present.

11. Each party should be able to maintain a standard of living that in all the circumstances is reasonable.

12. Neither seeks to argue that the length of the marriage has affected their earning capacity and neither seeks to continue in a role as a full- time parent.

13. The wife is married to Mr. C who is employed as a [omitted].  They each contribute to their household expenses.  Mr C also pays child support for his daughter from a prior relationship.

14. The wife has been contributing child support and is likely to do so until the husband’s business circumstances change.

15. The parties will be sharing the care of the children whilst [W] will be residing with his father.  ([W] is fifteen and it is not clear if he will undertake tertiary education.)  Their income will be similar and the wife will, in the interim, be contributing child support.

16. Taking all of the above into consideration it is appropriate that there be an adjustment back in favour of the husband of 3 per cent.

Just and equitable requirements

1. The evidence of the wife’s parents is that the land was gifted to their children to enable their family to grow up around them and to “maintain a close family network”.  This is corroborated by the wife, and she was not challenged by the husband.

2. The wife’s mother is Samoan and wanted her family nearby.  The land was subdivided by her parents and a block given to the wife and her siblings to enable the families to live next door.  Save for the wife (as the husband is currently residing there), the children have done so, resulting in a neighbouring family network.

3. I therefore have difficulty understanding the position of the husband wanting to keep the property which is so closely linked with the wife’s parents and family.

4. His evidence was that [W] is attached to the property and would be distressed if he had to leave.  This is a decision however that cannot be made on the basis of the wishes of this fifteen year old

5. In view of the undisputed evidence that this land adjoins land that is owned and occupied by the wife’s family, I do not consider it appropriate that the husband be given the first choice to reside there.

1. At the same time I consider it appropriate that he be paid for his interest in the property and not be expected to take a proportion of the wife’s superannuation.  If the wife is unable to raise the funds then the property would have to be sold and each party would be free to seek to purchase the same.

2. The orders I propose to make mean that the husband would receive:

   ADD BACKS   $4,560.00

Proceeds of Property W	$35,295.00
Jackaroo	$4,500.00
Boat and trailer	$3,500.00
Shipping container	$3,000.00
Furniture and chattels	$25,000.00
[G] business	$44,500.00
Bank of Queensland account	$223.00
Super [A]	$2,026.00
Super [B]	$12,444.00
SUB TOTAL	$135,048.00

1. The wife would receive:

Property R

$475,000.00

Proceeds of Property W

$35,295.00

Bank of Queensland account

$800.00

Super ([C])

$5,469.00

[D] Super (Defined Benefit)

[D] Super (Accumulation Fund)

$159,783.76

$7,102.80

Add back re holiday

$30,000.00

Add back re car

$22,232.00

Add back re furniture and chattels

$25,243.00

SUB TOTAL

Less liability for ANZ credit card

$760,925.56

$4,500

TOTAL

$756,425.56

1. The husband is to receive 45 per cent of an asset pool worth $891,473.56 which equates to an amount of $401,163.10 rounded to $401,163.

2. The husband has assets to the value of $135,048 which means that the wife is required to pay him the sum of $266,115.

3. This means that the wife will have assets to the value of $756,425.56  (including add backs and superannuation) less the $266,115 she is to pay to the husband being a total of $490,310.56.  The husband will have assets to the value of $135,048 plus the wife’s payment of $266,115 being a total of $401,163.

4. It is appropriate that this occur at the time of the settlement of the transfer of the house.  Some time needs to be allowed for this to happen, and I would propose that it occur within sixty days. I appreciate that this brings it close to Christmas, however the parties have been attempting to reach this point for over two years and matters should move forward.

5. I have considered the effect of the orders and I do not consider the just and equitable principles require that I make any further adjustment to the division of the assets.

I certify that the preceding two hundred and forty-nine (249) paragraphs are a true copy of the reasons for judgment of Cole FM

Date:  2 November 2010