Hartnett & Sampson (No. 2)

[2007] FamCA 241

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 2) [2007] FamCA 241

FAMILY LAW - PROPERTY SETTLEMENT - Parenting orders subsequent to earlier publication of findings – Many disputed issues over assets and liabilities – disputed value of the home – Court not obliged to adopt the opinion of one valuer where the opinion of the other is not accepted – Obligation to consider all of the evidence of value and make a determination if possible – Discussion of circumstances in which discretion to order sale may be exercised - Order for sale - Debts for legal costs

FAMILY LAW - SPOUSAL MAINTENANCE - Lump sum

FAMILY LAW - CHILD SUPPORT - Application for departure

Family Law Act 1975 (Cth)

Phillips and Phillips (2002) FLC 93-104;
Brown and Green (1999) FLC 92-873;
Gyselman (1992) FLC 92-272;
Sheahan (1993) FLC 92-375;
Hides and Hatton (1997) FLC 92-759;

APPLICANT: Mr Hartnett

RESPONDENT: Ms Sampson

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED (Property issues):

(Children’s issues delivered 14 February 2007)

21 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 11, 12, 15, 16 May & 9, 10, 11, 12, 13, 16, 17, 18 October & 4 December 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. Each party is to forthwith do all things and sign all documents necessary to sell the property at V in the State of New South Wales as soon as practicable in a manner agreed and failing agreement at public auction at market price.

2. Until completion of the sale the husband has the right to occupy the property subject to the husband paying the following as they fall due and permitting inspection by agents and prospective purchasers at all reasonable times:

   (i) council and water rates

   (ii) house insurance

   (iii) mortgage instalments.

3. The parties are to cause the proceeds of sale to be disbursed as follows:

   (i)to pay the reasonable expenses of the sale including agent's commission and legal costs and disbursements;

   (ii)      to discharge the mortgage secured on the property

   (iii)to pay Mr K the sum of $670,000

   (iv)to pay the balance remaining as to 65% to the husband and the wife 35%

   and from the wife’s 35% entitlement she is to simultaneously pay to the husband the sum of $71,000. 

4. Save as otherwise referred to in these orders, each party is entitled to retain as their property absolutely all property presently in the possession of that party save that the wife is entitled to collect at a mutually convenient time and retain the property presently located at the V home as identified in the report of Mr A at page 7 under the heading ‘Items said to have been the property of [the wife] prior to the marriage’. 

5. The husband is to do all acts and things and sign all documents required to cause E Pty Limited [the husband’s company] to transfer to the wife the BMW motor vehicle registration no. … unencumbered and to cause the financial burden of such transaction to be recognised in the account of the husband with the company.

6. The wife is to indemnify the husband against all liability arising from any claim or demand made by the wife’s mother related to funds transferred out of the members account of the wife’s mother in the husband’s Superannuation Fund No. 2.

7. The husband is to sign all documents and do all acts and things required to cause the E Pty Limited to release S Pty Limited [the wife’s company] from all or any indebtedness that S Pty Limited has to E Pty Limited.

8. If the wife requests a transfer of her own superannuation interest held in the husband’s Superannuation Fund No 2 [‘the fund’] to a regulated superannuation fund of her choosing [‘the wife’s new superannuation fund’] in accordance with the governing rules of the fund, then following receipt by the trustees of that request the trustees are to cause a meeting to be held in accordance with rules of the fund for this purpose:

   (i)to note receipt of the wife’s request to transfer the entire amount of her superannuation interest in the fund;

   (ii)to authorise the transfer of the entire amount of the wife’s interest in the fund to the trustee of the wife’s new superannuation fund [less a proportionate share of any liability for any unpaid income tax including capital gains tax arising out of the authorisation of the transfer of the wife’s superannuation interest (or other tax including superannuation surcharge)], and

   (iii)to receive the wife’s resignation as a member of the fund and as a trustee and the wife is to do all things and sign all documents necessary to tender that resignation at that meeting. 

9. Upon compliance by the wife with the order 8, the husband is to indemnify and keep the wife and the wife’s new superannuation fund indemnified against all liability in relation to the fund including any unpaid income tax (or other tax including superannuation surcharge) assessed or hereinafter assessed against the fund, the wife and the wife’s new superannuation fund in respect of income, capital gains or any other tax assessed under either the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 derived or deemed to have been derived by the fund including interest, penalties, costs and fines and from all proceedings, costs, claims or demands in respect thereof.

10. Pending the transfer of the wife’s superannuation interest to the wife’s new superannuation fund each party is restrained from dealing with, charging, encumbering or disposing of any of the assets of the fund other than in accordance with the terms of these orders. 

Spouse maintenance

1. The husband is to pay to the wife on or before one (1) month from this date the sum of $12,000 by way of lump sum spouse maintenance for the period six (6) months from the date of these orders.

Child Support Departure

1. The wife’s application for child support departure is dismissed. 

2. The interim orders for child support made on 20 December 2005 are to continue their operation until 30 June 2007.  

3. A child support assessment is to issue in relation to child support for the children a daughter born in April 2003 and a son born in November 2004 for the period from 1 July 2007 according to the provisions of the Child Support (Assessment) Act 1989.

Parenting orders

1. The parents are to have equal shared parental responsibility for their children: a daughter born in April 2003 and a son born in November 2004.

2. The children are to live with their parents at times designated by these orders.

3. The children’s residence is to be established in Sydney no later than 1 May 2007. 

4. The children are to spend time with each parent as follows:

   (i) pending the relocation of the children’s residence to Sydney by 1 May 2007:

   (a)in accordance with the current interim orders save that both children are to spend the time designated by those orders from 9am Saturdays until 5pm Sundays on an unsupervised basis;

   (ii) after the relocation of the children’s residence to Sydney by 1 May 2007 until 31 October 2007 in four weekly cycles:

   (a)with their father in weeks 1 and 3 from 5pm Friday to 5pm Sunday;

   (b)with their father in week 2 and 4 from 5pm Tuesday to 5pm Thursday;

   (c)      with their mother at all other times.

(iii) from 1 November 2007 until 31 January 2008 in four weekly cycles:

(a)with their father in weeks 1 and 3 from 9am Friday to 5pm Sunday;

(b)with their father in weeks 2 and 4 from 9am Tuesday to 5pm Thursday.

(c)      with their mother at all other times.

(iv) from 1 February 2008 until 31 July 2008

A. during school terms as gazetted in New South Wales in four weekly cycles:

(a)with their father in weeks 1 and 3 from 9am Friday to 5pm Sunday;

(b)with their father in weeks 2 and 4 from 9am Tuesday to 5pm Thursday;

(c)      with their mother at all other times.
  B. during school holiday periods as gazetted in New South Wales:

(a)with their father for one half of the school holidays following terms 1, 2;

(b)with their mother for one half of the school holidays following terms 1, 2;

(v) from 1 August 2008 to 31 January 2009

A. during school terms as gazetted in New South Wales in four weekly cycles:

(a)with their father in weeks 1 and 3 from 9am Friday to 9am Monday;

(b)with their father in weeks 2 and 4 from 9am Tuesday to 9am Friday;

(c)      with their mother at all other times.

B. during school holiday periods as gazetted in New South Wales;

(a)with their father for one half of the school holidays following term 3;

(b)with their mother for one half of the school holidays following term 3;

(c)with each parent for alternating periods of one (1) week in the school holidays at the end of term 4 in 2008.

(vi) from 1 February 2009
  A. during school terms as gazetted in New South Wales

(a)with their father in week 1 from 5pm Sunday until 5pm the following Sunday and every alternate week thereafter;

(b)with their mother in week 2 from 5pm Sunday until 5pm the following Sunday and every alternate week thereafter.

B. during school holidays as gazetted in New South Wales

(a)with their father for one half of each school holiday period at times to be agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;

(b)with their mother for one half of each school holiday period at times to be agreed and failing agreement for the second half in even numbered years and the first half in odd numbered years.

(vii) from the date of these orders:

(a)with each parent on special occasions such as children’s birthdays, a parent’s birthday, or special family celebrations at times to be agreed and failing agreement for three (3) hours with the parent with whom they are not living on that day;

(b)Mother’s Day and Father’s Day each year and to the extent necessary these orders are suspended to enable the children to spend that day with the relevant parent.

Notice of obligations

1. Pursuant to s.65DA(2) and s.62B, 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 order. 

Name

1. The children referred to in these orders are to be known by the surname of the father and the mother is restrained from causing either child to be known by any other surname. 

Costs of children’s representation

1. Unless exempted from payment by the Legal Aid Commission NSW, on or before 12 months from the date of these orders

   (a) the wife is to pay to the Legal Aid Commission NSW the sum of $20,162; and
   (b) the husband is to pay to the Legal Aid Commission NSW the sum of $16,762. 

FAMILY COURT OF AUSTRALIA AT SYDNEY 

FILE NUMBER:  SYF3827 of 2004

MR HARTNETT

Applicant

And

MS SAMPSON

Respondent

REASONS FOR JUDGMENT

1. These reasons are to be read in conjunction with reasons delivered 14 February 2007 related to the parenting proceedings.  It remains to determine competing claims for property settlement, spouse maintenance and child support departure. 

Property settlement

1. The orders the wife seeks are to be found in exhibit 14 tendered in October when the matter resumed after being part heard.  The terms of her proposal are set out in a schedule at the end of these reasons and all that need be said of it here is that she seeks a sale of the V home, both she and the husband would be entitled to bid at auction, the sale proceeds after sale related costs would be distributed 60/40 in her favour with payment of the mortgage to come from the husband’s share, transfer to her of the BMW motor vehicle, delivery of certain chattels and a rollover of her superannuation entitlement from a self managed fund.  It will be noted that she also seeks a rollover of the entitlement of her mother but no submission was made about it and that order is beyond the ambit of this litigation. 

2. The orders sought by the father are to be found in exhibit 15 and the terms are also set out in a later schedule.  That proposes a transfer to him of the V home, discharge of the mortgage, payment of a sum of money to the wife that would distribute their net property 70/30 in his favour, transfer to her of the BMW motor vehicle, and otherwise they would each retain whatever other property they now have, including their respective superannuation entitlements.  So far as the superannuation is concerned, I do not apprehend any opposition to the rollover of the wife’s entitlement into a fund of her nomination should that be her election. 

Further background

1. When they moved into the E premises the husband’s assets included the shares in E Pty Limited, the company through which he provided his services, and that company held net proceeds of sale of the M home of some $719,000.  He also owned furniture and household contents, savings of around $4,600, a Jaguar motor vehicle, and some public listed shares.  He had an entitlement to superannuation through a self managed fund, the H Pty Limited No 2 Superannuation Fund.  He had no debts.  Closing submissions for the wife advanced the proposition that the husband told her in the early stages of their relationship that he had $400,000 in Dubai, which he denies, and that will be addressed later with other issues. 

2. The wife had her shares in S Pty Limited, the company through which she operated her business, she owned some furniture and household items, two motor vehicles - a Mercedes motor vehicle and a Hyundai Excel – and she had an interest in two superannuation funds, B Super and J Super. 

3. There is nothing that would allow any finding about the aggregate value of the net assets of either at the time.  The financial accounts of the wife’s company [exhibit 35] reflect in the Balance Sheet a deficiency of net assets of $8,830 as at 30 June 2000 but the liabilities include a loan from her of almost $47,000 and after account is taken of that there were net assets of $37,599 consisting of cash, office furniture and motor vehicle.  The Balance Sheet for that year for the husband’s company is not available, documents tendered or annexed only relate to 2002 and later, though there are profit and loss statements for a number of years along with a schedule of profit and loss over some years [exhibits 78 and 79].  However, it is known that the company held the M sale proceeds just mentioned. 

4. Their background and work experience has been noted in the earlier judgement and need not be repeated here.  In the course of their relationship the husband continued with his career in communications and related activities and he also attempted to establish businesses in the United Arab Emirates [UAE]. 

5. The wife continued to operate her business for a time.  Relevant to an issue to be addressed later, it is her evidence that members of her family had worked in her business and that included her mother who had taken a ‘salary sacrifice’ by having superannuation paid to the B Super Plan.  It appears this step was the subject of some cautionary advice from her accountant in 1998 [exhibit 34] but nonetheless superannuation contributions were paid into an account styled in the wife’s mother’s name.  Soon after they established a common household she wound the business down.  On her case, this was at the husband’s instigation so she could concentrate on supporting his career, helping care for the husband’s son, and to be available generally when he had free time.  She did some promotion work but by 2002 she had sold her leftover stock and her business came to an end.  However, the company continued to earn income by providing her services as a stylist to the husband for which E Pty Ltd paid and monthly payments were received into 2004.  It is her case, and it can be accepted, that she attended functions with the husband and various social events related to his work.  It is also her case, and it can be accepted, that she assisted him in other ways she nominated: banking and deliveries, she drove him around, she organised parties for business acquaintances and friends, she oversighted his grooming, and she helped him prepare for travel. 

6. Throughout the relationship they each retained their own separate personal bank accounts and bank accounts for the companies they controlled, though the wife did have supplementary credit cards and therefore access to the husband’s credit card facilities.  They each nominate what expenditure they paid from income received but nothing of any moment turns on that one way or the other. 

7. Searching for a home to buy in 2000, they inspected a number of properties.  The husband acknowledges he had indicated his willingness at the time to pay $1.8 million, a commitment that would have required fairly substantial borrowings given the extent of funds derived from the M sale.  Around April 2001 the property at V was purchased in joint names for $1.415 million in circumstances where they attended the auction at the last minute.  A deposit of 10% was paid from the E Pty Ltd account.  To complete the purchase a further $1.27 million or thereabouts was required.  E Pty Ltd had $600,000 left after the deposit was paid and this was contributed towards the purchase price but a further $670,000 was needed. 

8. As the husband tells it, he had been in Dubai earlier that year, discussing with his long standing friend, Mr K, their proposal to secure a business licence in Dubai.  He said he raised his financial circumstances – that he had committed to buy the V home - with Mr K who offered to assist by lending him the balance required to complete.  The husband accepted the offer and signed a loan agreement on 15 April about a week before settlement [annexure AR].  That reflects an agreement for the advance to be without interest and for a term of 10 years or until the property is sold, whichever first occurs.  On the husband’s evidence, and the evidence of Mr K, no repayments have been made and the whole amount remains payable. 

9. There is an issue about whether this is a bona fide loan or whether in some way in whole or part it is money the husband already had in Dubai at the beginning of the relationship with the wife coming back to him under the guise of a loan.  The wife says he did not advise her at any time of the existence of a loan from Mr K and nor, it is pointed out, did he disclose the existence of any liability to Mr K when he applied for a loan from a bank in September 2003 [exhibit 24].  The issue will be discussed later with others. 

10. The costs of purchase of the V home, more particularly the stamp duty of around $45,000, initially came from the wife through the account operated by her company.  The husband says, and I do not understand there to be any remaining contention about it, that E Pty Ltd reimbursed her company by two cheques each of $30,000 in June/July 2001, the additional $15,000 representing payment for stylist services she had provided. 

11. Towards the end of 2003 $300,000 was borrowed from a bank and a mortgage taken over the V home.  The loan was in the husband’s name and the wife as joint owner provided a guarantee.  The money was put towards the costs of renovations to the home. The husband, I accept, has been responsible for paying the mortgage instalments, before and since separation. 

12. An architect was engaged for the purpose of devising plans to renovate and improve the property, plans were prepared and lodged with the local council and later approved, and a builder and tradesmen engaged to undertake work.  No doubt there was considerable discussion necessary about design and budget and what might be done to improve the property and no doubt a raft of decisions had to be made in consultation with each other and with the professionals engaged.  Each paints a different picture of their own and the other’s involvement, but it seems quite likely it was a project in which they were both engaged though probably the husband took the running with implementing decisions and liaising with those who had been engaged to do the work in one capacity or another.  I accept that he also undertook some of the labouring work involved as set out in his affidavit [paragraph 351].  Being both structural in nature and involving the addition of another level, clearly the work was of fairly major proportions.  The funds borrowed were spent but the work has never been completed and the valuers’ reports are a window into that. 

1. Apart from the purchase of the V house and its partly completed renovation, their property dealings were not extensive and can be summarised here:

   (a)In late 2001 the wife’s mother’s entitlement in the B Super Plan was rolled over into the self managed H Pty Limited No 2 Superannuation Fund, as was the wife’s entitlement in the BT Super Plan and in the J Super fund.  

   (b)In September 2001 a new BMW motor vehicle was purchased in the wife’s name or the name of her company for around $95,000 [exhibit 51].  An amount of $7,378 was allowed on the trade of her Hyundai, some further money came from savings, and the balance required of almost $67,000 came from the account of the wife’s mother in the superannuation fund [exhibit 52].  The wife says the money from the superannuation was ‘borrowed’ and the submissions on her behalf maintain there is an obligation to repay it.  In January 2003 the vehicle was stolen and a total of $100,700 was received under an insurance claim.  The husband deposited the monies to his account and he then lent it to E Pty Ltd which purchased a BMW motor vehicle for $95,000.  In this way the vehicle is owned by E Pty Ltd and the transaction is reflected in the husband’s loan account with the company.  The wife has retained the vehicle since separation. 

   (d)It is said and it is accepted that the husband purchased jewellery for the wife in the course of the relationship. 

2. The husband was involved throughout the time they lived together in an attempt to establish certain business ventures in Dubai.  It began in 1997 when he and Mr K resolved to investigate the prospect of obtaining the grant of a licence to build and operate a communications business in the UAE.  Over time the husband had travelled to the UAE to meet with officials linked to those in government who would make that decision and in due course he established U Company and there were some negotiations with B Holdings and also discussions with officials from the government owned media company.  In 2001, in an effort to further the project, lobbyists who are said to have had business and political connections were engaged and E Pty Limited entered into an agreement to retain those lobbying services with X Company, later assigned to the F Company [exhibit 19]. 

3. The agreement was for a term of two years from July 2001 with provision for extension and the husband says it was in fact extended for another year.  In essence X Company was appointed to represent the interests of E Pty Ltd in the UAE and ‘assist with its endeavours to establish a [communications] business’ there.  The agreement recorded the express aim to ‘establish government agreement to the granting of a [licence] to [E Pty Ltd] and its nominated UAE partners to undertake a [communications] business.’  The consideration for X Company undertaking its various obligations was $US10,000 a month payable in advance on the first day of each calendar month during the term of the agreement.  X Company was to meet certain costs deemed necessary from time to time while promoting the objectives of E Pty Ltd, with the costs to be recouped from E Pty Ltd ‘if applicable’.  There is added ‘Should any extraordinary payments be necessary in pursuit of these goals that exceed expectations these will be negotiated separate to this agreement and shall be paid expeditiously by [E Pty Ltd].’  Further clauses include these:

   ‘It is acknowledged that endeavours undertaken by [X Company] will proceed over time, and that the major costs incurred will be experienced at a time close to the success of the objectives outlined.  Therefore it is agreed after negotiation, that payment will be made at the time of and subject to the success of the objectives.

   However, it is further acknowledged that [X Company] will incur fees on behalf of [E Pty Ltd] during the period of this agreement and [E Pty Ltd] will be liable for these fees regardless of success.  This will require the guarantee of the agreed consideration either by Bank Letter of Credit or other agreed promissory Note.’

4. The husband identifies the events of 11 September 2001, some months after the agreement was signed, as having some relevance to his business plans in the Middle East.  In any event, two cheques for $210,000 each were drawn on the E Pty Ltd account as promissory notes, not to be cashed but held subject to the terms and conditions of the agreement.  There was a further cheque drawn on the E Pty Ltd account on the same basis later for $120,000. 

5. The husband’s evidence is that verbal approval was gained at one point for the grant of the licence but it came to nothing after there was a change in the political landscape following the death of a key member of government.  The upshot was that no licence was granted but the husband considers he was obliged to pay the fees under the agreement.  Over time commencing October 2004 he sent various payments to Dubai in satisfaction of his obligations, totalling $630,000.  His view of his obligation is contentious and that will be addressed shortly. 

6. In the meantime, while this venture was being explored the husband and Mr K established a business known as P Company.  The plan was to produce communications videos in Australia for sale to agencies in the UAE.  However, the venture did not succeed for reasons given by the husband and some limited work completed in 2004 saw the end of the project and no further income has been derived. 

7. As for the domestic arrangements between the husband and wife, in the time they lived together the husband was the main financial provider.  There is dispute about responsibility for domestic chores such as cleaning, laundry, shopping and cooking but it is quite probable they both undertook tasks related to the running of the home and in the early stages before the daughter' birth. It is probable they each did what was necessary around the house to the extent work commitments allowed.  After the daughter’s birth they were both involved in her care, but it is also probable that the wife saw to the majority of her day to day care and to the running of the household. 

8. Since the separation the husband has continued to occupy the V home and meet outgoings related to it, including the mortgage instalments.  His work has scaled back considerably from earlier times and there is an issue about his earning capacity.  After an initial period with her family in Geelong, the wife moved to a unit, owned by a company controlled by her father, which she rents at $165 per week.  Her income is from government benefits and child support and she otherwise has received financial assistance from family members.  She has had the use of the BMW motor vehicle acquired by E Pty Ltd in circumstances noted earlier.  Both have borrowed money from a range of people these past two years and more to meet their financial obligations, including the extraordinary level of costs related to the agitation of disputes through lawyers and related to this litigation. 

9. Initially the wife had access to credit cards, I accept, and she used that facility to incur expenses which the husband subsequently paid.  Correspondence followed about the provision of financial support and it was not long before an assessment issued from the Child Support Agency.  Initially that was for $247 per month, it was varied in December to $66 per month and this was followed in January by an assessment of $21 per month.  These were later amended after objection so that the child support fixed for the period from October 2004 to 31 March 2005 varied from $250 per week to $371 per week.  A later assessment issued after dispute for payment of $500 per month for the period from March 2005 to January 2006.  At that point the wife instituted court proceedings for a departure order.  That was heard in November 2005 and resulted in an order for continuing payment of $500 per month.  As well as child support, the husband paid at one point for the registration of the BMW motor vehicle and he has maintained family private health insurance.  He has also had the expenses necessary for the regular travel he has undertaken between Sydney and Geelong and for accommodation there to have contact with the children.  The cost has been considerable; he estimates it at $529 per week with additional costs when J accompanies him.  He has also been obliged to pay some of the wife’s expenses related to her travel to Sydney for purposes related to the court proceedings. 

10. On 16 November 2005 orders were made by consent, on the wife’s application for interim costs, permitting her to take the Mercedes motor vehicle and sell it and put the funds towards her legal costs.  After transporting it to Geelong she sold it for $28,000 and after deducting costs she had incurred of $4,800 she paid the balance of $23,000 or thereabouts towards her legal costs.  The husband alleges she sold it for under value because he had a buyer in the wings for $35,000 [exhibit 20] but whether or not the prospective buyer would have come up with the extra $7,000 after inspection is not known.  The point is too speculative to warrant a finding of sale at undervalue.  She has also sold Telstra shares for $3,961 and also paid that towards her legal costs. 

11. In 2005 the husband bought a Toyota Rav 4 for $36,000 which came from a personal loan from a financial institution.  He had earlier sold the Jaguar motor vehicle for $80,000 and after the cost of repairs, he received around $72,350.  He put most of that [$62,593] towards payment of his legal costs and other sources of funds to pay his legal costs have been the sale of shares [$3,456] and drawings from E Pty Ltd [$29,325] as well as borrowings [exhibit 21]. 

Disputed issues

1. There are quite a number of disputes that relate to the composition of the assets or liabilities which will be listed later.  What follows is relevant to the composition of those lists. 

   ·money and Dubai

2. There are a number of issues that can be dealt with under this general heading.  In one way or another they each roll up into the general submission that the husband has not made a full and frank disclosure of his financial circumstances consistent with his obligations. 

3. The first is the submission that the husband had $400,000 in Dubai when the relationship with the wife began and the basis for the submission is the wife’s allegation that he told her that early in the relationship – see paragraphs 132 and 135 of her affidavit sworn 14 September.  Ultimately there is no evidence to support the submission or at least no credible evidence to that effect, the husband has denied it, and nor has there been any attempt to demonstrate that it was possible, much less probable, for him to have set aside funds of that magnitude to that point.  The tender at the end of the case of documents showing profit and loss figures over the years [exhibits 78 & 79] made no inroad into that shortcoming and nor were the husband’s prior circumstances explored with him in a way that would leave an impression, much less establish the probability, that he had funds of that magnitude available to him from some source.  There is no reason to reject his evidence of his circumstances at the time.  It is easy enough to make an allegation of this kind and so create suspicion, but it has to be translated into more than a smoke and mirrors exercise to secure a finding, and that has not been done in this instance. 

4. The second issue is the question of the $670,000 from Dubai to settle the purchase of the V home.  The case run by the wife seems to be tied up with the issue just mentioned in that the money already in Dubai, and more, was returned to the husband in what Mr Lloyd called ‘some way shape or form’, apparently meaning to suggest the husband’s own money came back to him under the masquerade of a loan from Mr K.  Putting to one side the lack of any inroad into the husband’s evidence about what occurred, if that is what the case is, it was not a proposition put to Mr K when opportunity presented during the course of his cross-examination, and it ought to have been if there was to be a submission to that effect in the wife’s case. 

5. There are other submissions about the transaction with Mr K.  He (Mr K) could not identify a bank statement to show where the money had come from which was ‘extremely odd’ and the terms of the so called advance were ‘peculiar to say the least’ being for 10 years with no interest, described as ‘pay when you can’ terms.  Yet this gives rise to nothing of any substance.  Mr K agreed he receives bank statements related to his accounts but while he keeps his statements usually, this transaction occurred four or five years ago and he said there is no way he would have a statement related to this period or at least he did not believe he had any such statement.  The terms in the written agreement are clear enough – 10 years or sale whichever first occurs – and Mr K’s evidence under cross-examination could not be re-interpreted as allowing a ‘pay when you can’ term:

   ‘Is the term of 10 years a rigid term?  In other words, if [the husband] wants to extend it, is that a problem for you?---Shouldn’t be a problem.  But I mean, that’s the agreement.  I think 10 years should be enough time for him to pay me back, you know.  Nothing is cast in the stone, but depends.  I mean, 10 years is the arrangement of the loan and it shouldn’t be more than that.

   But, if necessary, it could be a bit longer?---I don’t know.

   Has [the husband] paid any money back to you in respect of this loan?---No, not yet.’

6. There are also submissions about what the husband had said of notifying Mr K of his purchase of the V home, given their business relationship at the time.  It was pointed out that the husband had instructed agents to bid on properties up to $1.8 million and that was ‘odd’ if he was so concerned about his financial position that he felt it necessary to tell Mr K of his purchase of the home.  The other proposition seems to be that the husband would not have been able to pay $1.8 million for a property or could not have proposed paying that amount for a property if he did not already have funds in Dubai.  That may be to re-frame the submission inaccurately but just what was being alleged was never made sufficiently clear. 

7. Ultimately what can be said is that the money to complete the purchase did come from Dubai [exhibit 25].  Nothing really is known of Mr K’s financial circumstances and so the suggestions about the arrangement being ‘odd’ or ‘peculiar’ take the case nowhere, more so when nothing akin to this innuendo was taken up with Mr K in cross-examination.  His evidence of lending the money to the husband and on terms then agreed was untrammelled and there is nothing to be made of the fact that the husband felt an obligation to tell Mr K about buying the house in V, either standing alone or even in combination with other submissions on the topic, to permit a finding that the husband and Mr K had engaged in a transaction of some unspecified kind contrary to the evidence they gave about it here which, by implication, would be rendered false.  A subterfuge is possible, many things are, but this is the realm of the probable and mere innuendo is insufficient to tip the balance, more particularly so when no such case was put to those involved in the transaction in cross-examination.  The finding must be that Mr K advanced the money on terms reflected in their agreement and it is repayable in 10 years from the date of the agreement or on earlier sale of the property.  It will not be necessary, for reasons to be given later, to discuss another of the propositions put in the wife’s case – presumably on a fall back basis if a finding of debt is made -  to the effect that the present ‘value’ of the liability is less than its face value because of the 10 year term. 

8. The next issue relates to whether the $630,000 the husband has sent to Dubai over a period from 2004 should be brought to account here as an asset in his hands, as Mr Lloyd argues it should be.  I do not doubt there were efforts from as early as 1997 to secure a licence; the documents attached to the wife’s own affidavit verify that.  Nor do I doubt the husband engaged a lobby group to assist in that goal or that he entered into an agreement about that.  That was not the subject of challenge.  There is an argument that the husband was not obliged to make any payment for the service provided because the obligation to pay was linked to the success of the project and as it did not succeed there was no obligation to pay.  One strand to the submission is that the payments he made were unnecessary and he has taken no steps to retrieve it, so he should bear the consequence of, in effect, ‘wasting’ the money transmitted to Dubai.  Other aspects of the submission tend to suggest dishonesty by sending the money to Dubai under some subterfuge to spirit money away from being taken into account in the looming property dispute.  It was not so directly put - the precise form of argument was never clearly framed - but I infer that from mention of the timing of the first payment coming on the heels of the separation, and the submission concerned with Mr K’s evidence about when he became aware the project was a ‘dead duck’ and told the husband so, and mention of the money being sent ‘offshore’ knowing the project was going nowhere and in circumstances where he had no obligation to pay it under the agreement absent success. 

9. In any event, Mr Richardson submits that Mr K’s evidence is no support for the argument about timing because when that is examined it is apparent he did not have any clear recollection of the dates involved.  I agree with that, as the following exchange between Mr Lloyd and Mr K shows:

   ‘Up until that time, that is 2001, had you and he been partners in this attempted venture concerning the [communications business]?---Did I know, what, sorry?

   Were you in partnership with him, were you his partner in relation to the proposed [business venture]?---Well, yes. I mean we were supposed to be partners.  If this venture was supposed to - or were to come true, I mean we were trying to meet with - you know, with various people in Dubai who did the licence, but of course I mean, if we had the approval we could have made a bit of profit, of course.

   …….

   All right and when was it that you learnt that it was not going to be successful?---Well we had various attempts. We started from home way after - I mean, we've been trying to - to get the licence since '97.

   Are you still trying to get the licence?---No, no. We just stopped. No, no. I didn't think we could get it because the politics here do not give the private sector or - or newcomers a licence. It's just - it's just given to a government or - or one of the Emirates in Dubai, in the UAE. So if you want to get, you’ve got to get it through them.

   So when did you determine, sir, that it was a pointless exercise to pursue the task of obtaining a licence?---Last year - last year, in 2004, last year, I can't remember.

   Have you had any association in terms of - sorry, I withdraw that. Have you had any dealings on behalf of [the husband] since the end of 2004 to deal with the proposed licence you speak of?---What do you mean, like what?

   Well, have you done anything for and on behalf of [the husband] since the end of 2004 in relation to the chasing of these licences?---No, nothing.

   Did you do anything with him during the 2004 year trying to chase the licences?---You mean a different venture, are you?

   Well, any venture with [the husband]?---Well we had - we had a company, I mean, during that period we thought we were going to have an online commercial production company and we established a company called [P Company](?). I can't remember when now, I think it was (indistinct). And we are just doing - while we are trying to get these licences, we have this company available, then we moved - at least we show to the consultant (indistinct) we are - we have - we have something to do here and we are experienced people and we knew what we are doing. So we went into this online venture together.

   Yes, but can I ask you again, to me it's unclear, when did you form the view that it was a pointless exercise to pursue the licence?---Well - it was probably in 2004, I can't remember, 2004 or last year because the last - the last thing that we had that somebody might have some dealings with some – some associates in Dubai and they thought - they said that they have some connections with the Ministry.  So that was the last time we (indistinct) together on this issue and I think at that time the - the boy died.  I think it was last year he died, one year ago so - and things frozen from that way and things have changed from the Ministry.  So I don't think - I don't think that these guys, who were [the husband], I think who contracted with them (indistinct).

   Did you know who he was dealing with when you refer to “these guys”? ---There’s a guy called [R], or somebody called [R] or something, and he brought these two guys. I know (indistinct) very well, to be honest with you, I don't know. But I know that one of these guys have a good connections with the Ministry.

   So is the best you can do in recalling when you formed the view that it was pointless was either 2004 or 2005?---2004.

   And did you advise - - - ?---Because - yes, sorry?

   Did you advise [the husband] that it was a pointless exercise by then?---Yes, yes, I told him. I told him that it's - I think it's not good we going anywhere because you are trying to do this since '97 to now and it's pointless.

   Did he respond to that? What did he say to that?---I guess - I can't remember, but I think he agreed then. He agreed.’

1. This evidence does not give any weight to the timing argument and there is nothing else able to be identified as support for a money hiding subterfuge.  Mr K’s evidence does support the husband’s evidence that the prospects for the project changed on the death of a member of the ruling family, referred to by Mr K as ‘the boy’ and the tender of the cheque butts related to E Pty Ltd’s account established that cheques were in fact written on the account, long before the suspicious period surrounding separation, and held as promissory notes rather than being presented.  Also, while the point was not raised or argued, it seems to me arguable on one interpretation of the written agreement whether the absence of any obligation to pay is as clear as Mr Lloyd’s argument contends, and the husband was unshaken in his view of his obligation to do so. 

2. In summary, there was a genuine endeavour to establish a radio licence which, despite efforts made over time, did not eventuate.  Nothing establishes the husband’s payment of fees under the agreement with the lobby group engaged to further the project was unnecessary or underhand, nor is there anything from which that inference could be drawn, and there can be no finding to justify that money being brought to account here as an asset in his hands. 

3. It follows from what has been discussed that there is no sufficient support for the finding urged that the husband has failed to make a full and frank disclosure of his circumstances in so far as that relates to financial transactions to and from Dubai.  

·Value of V property

1. Mr O was engaged initially as a single expert and he arrived at a value of $1.7 million as at July 2005.  The wife then engaged Mr F who valued the property at $2.7 million and Mr O updated his earlier report and increased the value to $2 million as at October 2006, which virtually relates to land value.  The difference of opinion at around $700,000 for a property in this price range represents a rather large disparity outside the tolerable range within which opinions might reasonably differ.  The difference does not relate to dispute about the location, land size or general description of the property, including the partially renovated and incomplete improvements, and so the explanation has to lie elsewhere. 

2. Mr Richardson submits the difference is capable of resolution and urges a finding about value based on one core contention.  Mr F made it clear that at least some portion of the value he attributed to the subject relates to the improvements and he disagreed with Mr O’s view that the value is reflected substantially in the value of the land.  However, there is no way of knowing what component of Mr F’s figure relates to the improvements.  That is because his opinion is based on advice he received from a builder on that topic, his statement of that advice, as reflected in his report, was not admitted into evidence, and the content of the advice was not otherwise proved as then became necessary. 

3. This submission is sound as to principle.  It cannot be doubted that Mr F’s opinion was based on a mix of admissible and inadmissible, which could not be separated, and as the inadmissible component is fundamental to his opinion and was otherwise unproven, his conclusion is undermined accordingly.  Forensically, therefore, the finding about value might be seen as uncomplicated and Mr O’s figure adopted on the basis just mentioned.  It may also be accepted that Mr O is an experienced valuer and as best can be seen he addressed the task with diligence by examining sales and making comparisons with the subject, as he did also in practical ways.  Mr O can be rather testy when his opinion is challenged but that does not detract in any real way from the proposition put by Mr Richardson that there was nothing inherently ill considered about his approach and, I was reminded, he was initially engaged as a single expert and not by the husband alone. 

4. All that said and acknowledged, and notwithstanding the forensic support for the adoption of his opinion, I have been left with some disquiet about his opinion and the source of that lies with an analysis of some of the sales evidence.  When that is done, as I accept Mr Lloyd has, Mr O’s figure just does not sit sufficiently comfortably to warrant a finding of value for that amount.  Mr Lloyd went to three sales in particular, accepted as relating more to land value, and when they are taken in combination, there must be some real doubt about Mr O’s figure:

   (a)No 25 in the same street as the subject sold in September 2006 for $2.95 million.  That is close in time to Mr O’s update but it is for $950,000 more.  Mr O agreed most of the sale price would be attributable to the land and while there would be some inherent value in the existing improvements that would not amount to a great deal.  He regarded the land of the sale as superior to the subject, calling it one of the best blocks sold in the street recently, he said the sale is larger more usable land, it adjoins a park which he regards not as a possible source of intrusion into privacy but an opportunity to create privacy down one side on re-development, and with the addition of a first floor the block potentially has wide views.  He adhered to the description of the subject as having ‘good’ views rather than ‘commanding’ views and he would not concede this sale stands rather oddly with his figure which is almost $1 million less.  Nonetheless, I see it as a comparison that does warrant some caution and further investigation to see if there is any support elsewhere. 

   (b)The sale at No 48 in the same street is for land area of 924 m2 which is considerably larger than the subject at 727 m2.  It sold for $2.4 million in February 2005.  Again, it was agreed to be virtually a land value sale.  The sale was some 20 months earlier than Mr O’s updated figure which took into account the uplift in the market from the time of his first report and this sale would have to be seen in that light also.  The land area of the sale is greater than the subject and that is an important consideration.  But the sale has no views – certainly from the ground – and it is a matter of speculation what views it might have with the addition of a first floor.  So despite its greater land area, the views available to the subject, albeit more limited at ground level than from the first floor, calls into question a figure of $2 million when this sale was for $.4 million more some 20 months earlier and there has been a market uplift in the meantime. 

   (c)No 201 in the same street is another sale accepted as virtually reflecting land value.  Like the others just discussed, it had improvements on it.  The sale was for $1.711 million in November 2005.  This is the only sale of those examined which was for less than Mr O’s $2 million.  He conceded the value would have risen since the sale date.  Yet the land area of the sale is only 462 m2 which makes it considerably smaller than the subject, and the improvements on the subject are able to be constructed along the view, unlike the sale.  The uplift in value since this sale, whatever it might be, would head it in the direction of $2 million and then regard has to be had to the better view potential of improvements on the subject plus the large disparity in land area.  Those considerations cast doubt on $2 million as the value of the subject now. 

5. Contrary to the proposition implicit in Mr Richardson’s submissions on the topic, despatch of the opinion of one expert by reason of shortcomings does not oblige acceptance of the opinion of the opposing expert.  It remains the task of a trial judge to be satisfied that the opinion can be accepted having regard to all of the evidence, and the evidence here consists not just of Mr F’s flawed conclusion but a body of sales evidence that has to be analysed and fit sufficiently comfortably with Mr O’s opinion.  I am not satisfied that it does. 

6. Mr Lloyd said any doubt could be resolved and injustice avoided by ordering a sale and in any event the husband’s circumstances did not demonstrate a capacity to purchase the property.  Mr Richardson argued the discretion to order a sale would not be exercised as a matter of convenience, certainty or comfort but only by a finding that on the evidence and ‘in accordance with the law’ the issue could not be resolved.  He referred to a Full Court decision, later notified to be Phillips and Phillips (2002) FLC 93-104, which he said suggests in strong terms it is a very significant matter to order the sale of a home where one party is living, that party wishes to continue living there, and they have some prospect of being able to retain it. I do not doubt the significance of the step, but the last factor is not without relevance here and it also has to be remembered that the house was bought jointly only in 2000 so it could hardly be said to be a long standing residence or to have any historical family connection or something of that kind. In any event, there is discussion in Phillips [per Finn, Kay and O’Ryan JJ] which is rather lengthy but bears repeating given the argument against the course I propose taking:

   ‘43.     In proceedings pursuant to s.79 of the Act the first step is to identify and value the financial circumstances of the parties being property, liabilities and financial resources.  In undertaking this task the Court is frequently confronted with issues of identification and valuation of assets.  In Lenehan and Lenehan (1987) FLC 91-814 the Full Court said at p.76,142:

   “A trial Judge, as part of his ultimate responsibility under sec. 79 or otherwise, is normally required to determine a number of issues.  Some of those issues may properly attract the evidence of expert witnesses. In appropriate circumstances their opinions are admissible to assist in the determination of such an issue.  It is the responsibility of the trial Judge to take into account the opinions of such witnesses; however the ultimate duty of the Judge is to determine the issue on the whole of the material before him including such opinions.  The expert evidence is called to enable the Judge to form his own independent judgment on the matter by the application of the appropriate principles.”

   …

   46.      If there is a dispute as to the value of an asset and the Court prefers one expert to another, then reasons for the preference should be stated: Gamer and Gamer (1988) FLC 91-932 at p.76,746-76,747. Where there is a discrepancy between two or more values it is not open to the Court merely to adopt a mean or average figure between the rival opinions: Lenhan and Lenehan (supra) at 76,142.  However, this does not mean that, when faced with two competing valuations, the Court is bound to accept one or the other.  The Court is able to form its own separate view as to the value by the proper application of established principles of valuation.  In Borriello and Borriello (1989) FLC 92-049 the Full Court, referring to the decision of the High Court in The Commonwealth v Milledge (supra), said at p.77,558:

   “It is, we think, apparent that the High Court was not laying down a principle that the trial Judge was obliged to accept any particular valuer, but rather that it was necessary for him to satisfy himself by means of the application of proper principles, that he had arrived at the value of the property on the relevant date.  If that value happens to be different to the values ascribed to the relevant property by the valuers called in evidence, this in itself does not affect the validity of the judge’s finding, provided that he has applied proper principles”.

   47.      However, in Borriello the Full Court also said at p.77,559:

   “We are not however to be taken as saying that we necessarily agree with the conclusion of the Full Court that the fact that the trial Judge in Lenehan’s case had taken the midpoint between the two valuations necessarily vitiated his decision.  We can envisage situations where a trial Judge may be left in the position of considering that the two competing valuations represent a range and genuinely considering that the true valuation lies at or about the midpoint.  Valuation is rarely such an exact science that in such circumstances a Judge could realistically conclude that the correct valuation was, for example, 55% rather than 50% less than the gap between the two valuations.  In such a case it would be perfectly proper for the trial Judge to adopt a midpoint valuation.  We think that a Judge, faced with a gap between two or more valuations, where the Judge considers that on the probabilities the higher or lower valuation as the case may be should be lowered or increased by some percentage to arrive at the true value, is perfectly at liberty to so adjust it as he sees fit.  As we see it the vice complained of in both Milledge’s case and perceived by the Full Court in Lenehan’s case was the use of means and averages without the application of proper principles”. 

   48.      If there is a disparity in the evidence, such that it is too difficult and complex for the Court to accept a valuation or come to a separate conclusion as to value on the application of proper principles and methodology, it may be a more proper solution for the Court to consider a sale of the property.  In Little and Little (1990) FLC 92-147 the Full Court said at p.78,020:

   “Whilst a trial judge should determine a disputed issue of valuation where the evidence enables him to do so, we do not accept that there is an obligation cast upon him to determine such a disputed issue irrespective of the state of the evidence.  It may be such that a determination is not possible.  In such a case, as in a case where there is a very considerable disparity in the valuation evidence and other evidence indicates that the actual ascertainment of the true value is difficult and complex, the proper solution as between the parties may be to order a sale.”

   49.      In Smith and Smith (1991) FLC 92-261 the Full Court said at p.78,759:

   “…where the state of the evidence makes the process of valuation hazardous or uncertain, or where there are wide differences between legitimate valuations because of a volatile market or peculiarities relating to the specific property or otherwise, the ascertainment of value by judicial process may become too uncertain and the preferable course is to order the sale of the property so that its real value can be revealed by market forces.

   …

   The fact that each of the parties seeks a transfer of that property and neither seeks a sale is not in itself a reason for not adopting that approach: indeed it may emphasize the desirability of doing so in order to avoid the lottery effect which may be involved in choosing between one party and the other.”

7. In this case, for reasons I trust are apparent, I regard the ascertainment of value by adjudication hazardous and uncertain, which is not particularly surprising when the peculiarities of this particular property - the incomplete state of its improvements - is taken into account.  The preferable course, as indicated in Smith, is to order a sale so its real value can be determined by market forces.  Another reason, though much more secondary, relates to the unlikely prospect of the husband being able to retain it. 

   ·joint debt to Commonwealth Bank

8. There is a difference of some magnitude in the closing submissions of counsel about the amount owing under the mortgage which one would thing would normally be beyond dispute.  Mr Lloyd’s figure is $349,000 owing as at 5 October 2006 while Mr Richardson’s is $293,860 at the same date.  The latter appears to have come from paragraph 2.5 of the husband’s affidavit sworn 5 October 2006.  As far as I can tell that is the latest evidence available about the level of the debt and I can find no source for Mr Lloyd’s figure.  As it happens, the form of orders will render the dispute largely irrelevant. 

   ·furniture values

9. The figures later set out are for various items of furniture either owned before cohabitation, located at the V home or at Geelong, or have been acquired since separation.  The figures in the separate lists provided by counsel in closing addresses differed, but those adopted are consistent with Mr A’s report. 

   ·Jewellery

10. The figure of $27,315 comes from Mr A's valuation.

    ·Savings

11. There is a difference in the figures advanced for the wife’s savings.  The amounts are minimal, but the figure adopted has been taken from her most recent affidavit [paragraph 33] after allowing for the Visa debt. 

    ·The husband’s superannuation

12. The husband’s superannuation fund is self managed and he is one of four members, as is the wife.  Ms D valued the fund on a net asset backing basis as at 30 June 2005 because that was the date of the last financial accounts available to her.  It was not a complicated exercise because at the time the assets were cash and term deposits.  She arrived at a figure of $136,816 for the husband’s entitlement.  However, after the 04/05 financial year the husband used funds to purchase two parcels of shares at a cost of $100,000 which he said in his affidavit sworn 5 October 2006 then had a value of $32,300.  It is said this would adjust the value of his interest to $69,116 which was the figure counsel jointly initially presented.  Yet that exercise seems to me to assume the money to purchase the shares came from the husband’s member’s entitlement rather than cash held by the fund.  If acquired by the fund’s cash, then I would have thought the loss would be spread proportionately across all members’ accounts. 

13. In any event, further evidence was given about the fund in a later affidavit of the husband’s filed 4 December at the close of the case.  That had annexed to it updated financial accounts, including the accounts for the superannuation fund as at 30 November 2006.  Ms D’s opinion was not sought about the recent figure, no doubt because the accounts were introduced into the evidence by the husband so late.  The figure attributed to his entitlement in the accounts is $92,920.  The assets of the fund by this time included listed shares and obviously the value of the members’ accounts varies according to fluctuations in the value of the underlying assets.  Mr Lloyd contends for the adoption of $92,920 as the value of the husband’s entitlement rather than the earlier calculation of $69,116.  I agree, it is the best evidence of the value of his entitlement closest to the hearing. 

    ·The wife’s superannuation

14. It follows that the value of the wife’s entitlement should also be updated from the earlier figure of $47,707 to $48,963. 

    ·unbilled earnings

15. Mr Lloyd’s list of assets [item 28] includes a figure of $50,000 for the husband’s unbilled earnings.  However, he made no submissions about it and it is not included as an asset. 

    ·legal fees paid

16. Counsel approached the question of how to treat paid legal fees and loans to pay them differently.  Mr Lloyd’s approach was to bring to account paid legal fees only in so far as they exceed borrowings to pay them and to bring to account loans excluding money used to pay legal fees.  On the basis he contends for a figure of $93,374 to be attributed to the husband in the assets representing his paid legal fees.  He also contends for a nil figure for the wife, though he would include as notional assets as separate items the sale proceeds of the Telstra shares and the Mercedes because she used the proceeds to pay legal fees.  Mr Richardson submits this approach removes from scrutiny the evidence about recoverability of the wife’s mother’s loans to pay legal fees.  His approach was to include the whole of the legal fees paid as a notional asset of each and bring to account as liabilities funds borrowed. 

17. Either approach is acceptable but I prefer the approach taken by Mr Richardson because I think it reflects their current positions in a more transparent way.  That course will be adopted in compiling the list of current assets and liabilities.  I also propose separating out from their other assets the legal fees they have paid and the debts they have incurred post separation.  I have done so because their inclusion along with others in the one basket brings legal costs and related borrowings into the calculation of net assets when decisions about these matters post separation have been made independently of the other. 

    ·sale of Telstra shares

3.That the children live with the husband.

4.That the children spend time with the mother from the date of Order until the 31" December, 2007 on a fourteen (14) day cycle, as follows:-

4.1during the first fourteen (14) day period ("block one");

4.1.1   from 3.00pm Monday to 10.00am Saturday, the first period to commence the first Monday immediately following the date of Order;

4.1.2   that such period occur in the Sydney Metropolitan area unless otherwise agreed between the parties;

4.1.3   that the changeover shall be at the children's place of residence.

4.2      during the second fourteen (14) day period ("block two");

4.2.1from 3.00pm Friday to 10.00am Wednesday, the period to commence the first Friday of block two;

4.2.2 the period in block two to occur in Geelong unless otherwise agreed between the parties.

4.3      At such other times as may be agreed between the parties.

5.That the husband pay or cause to be paid the wife's economy return airfare from Geelong to Sydney for the period in block one.

6.The husband to pay one half of the reasonable accommodation costs for the wife for the period during block one.

7.That for the purpose of compliance with Order 4.2, the husband shall deliver the children to Avalon Airport at Geelong at the commencement of the period and the husband shall collect the children at Avalon Airport at Geelong, at the conclusion of the period.

8.That from the 1st January, 2008 the children shall spend time with the mother on a four (4) weekly cycle as follows:-

8.1in accordance with Order 4.1 (week 1);

8.2      from 3.00pm or the conclusion of school Friday immediately following the conclusion of the period in Order 8.1 to 9.00am or the commencement of school on Tuesday morning (week 2 and week 3);

8.3from 3.00pm or the conclusion of school Friday to 4.00pm Sunday (week 4);

9.That the children spend time with the mother pursuant to Order 8.1 and Order 8.2 in the Sydney Metropolitan area unless otherwise agreed between the parties.

10.That from 2008 the children spend time with the mother for one half of the following designated school holidays:

10.1 December/January;

10.2 At the conclusion of term one (1);

10.3 At the conclusion of term three (3).

11.That in relation to Order 10:

11.1     the wife shall spend time with the children the second half of the designated school holidays commencing 2008 and in every alternate year thereafter and in every other year, the wife shall spend time with the children for the first half of such holidays;

11.2     the school holiday period shall be deemed to commence the first day after the end of the term and shall conclude on the day immediately preceding the commencement of school;

11.3 the changeover shall be at the midpoint between the commencement and conclusion date of the school holidays.

12.That from 2008 the wife spend time with the children for the whole of the school holidays at the conclusion of school term two (2).

13.That the husband and wife equally contribute to the transportation of the children from Sydney to Geelong for the purpose of school holiday periods.

14.That the wife spend time with the children from midday 15th April to 9.00am 16th April in 2007 and thereafter in every alternate year and in every other year, from 5.00pm 14th April to midday 15th April.

15. That the wife spend time with the children from midday 9th November to 9.00am 10th November in 2006 and every alternate year thereafter and in every other year, from 5.00pm 8th November to midday 9th November.

16.That the wife spend time with the children for not less than three hours on the wife's birthday.

17.In the event Mother's Day falls on a weekend in which the children live with the husband then the mother shall spend time with the children from 5.00pm Saturday to 5.00pm Sunday.

18.Other than as specified in these Orders the children live with the husband:

18.1    from 5.00pm 14th April to midday 15th April in 2008 and every alternate year thereafter and in every other year, from midday 15^th April to 9.00am 16th April;

18.2    from 5.00pm 8th November to midday 9th November in 2007 and every alternate year thereafter and in every other year, from midday 9th November to 9.00am 10th November;

18.3for not less than three hours on the husband's birthday on the 13th April;

18.4for not less than three hours on the 7th March, being [J’s] birthday;

18.5    in the event Father's Day falls on a weekend when the children are with the wife, the children will live with the husband from 5.00pm on the Saturday until 5.00pm on the Sunday.

19.That the parties each be required to do all acts and things necessary to cause each of the children to be respectively known as [S]  and [T].

Orders sought by mother

1.That the children of the marriage, [a daughter] born [in] April 2003 and [a son]  born [in] November 2004 ("the children") live with the wife.

2.That the parties forthwith do all things necessary and sign all such documents as are required to register the children's respective surnames as "[both parties’ surnames]" with the Registry of Births, Deaths and Marriages in Victoria and on each child's passport.

3.That the parties have the day to day responsibility for the children whilst the children are in their respective care.

4.That in the event the court finds that an unacceptable event took place in relation to [the daughter] on a prior contact occasion(s) or that there is or may be a risk of such an unacceptable event or finds that the mother has a genuinely held fear that such an event took place or could in future take place and in any event until [the daughter] is of such an age as to be able to undertake and participate in appropriate protective counselling that the Husband have contact with the children as follows, subject to Order No. 5:

4.1.     On each first, second and third weekend in a series of four from 9am on Saturday until 5pm On Saturday; and from 9am Sunday until 5pm Sunday.

4.2.     Together with contact on each child's birthday with both children from 9am to 11 am and on father's day and the husband's birthday from 9am until 5pm with both children.

4.3.      During school holiday periods daily from 9am until 5pm for successive periods of up to one week in alternate weeks to the intent that the Husband shall have contact with the children for one half of the school holidays.

4.4.     Such contact also to be on the basis that any contact which would otherwise take place on a day which is the wife's birthday; or mother's day, [the daughter’s] birthday and/or [the son’s] birthday and/or for Christmas Day be suspended save as above set out.

4.5.     That such contact be supervised by either [Ms R] or [Mrs R], the husband's mother and/or one or other of his sisters or such other supervisor as may from time to time be agreed in writing by the parties.

4.6.      That the wife deliver the children to the agreed supervisor's residence at the commencement of contact and the husband return together with such supervisor and deliver the children to the Wife's residence at the conclusion thereof

5.That in any event until [the son] attains the age of 2 years, unless the Wife shall cease to breastfeed the child at an earlier date that the Husband's contact with him occur from 9am until 4pm on the Saturday or the Friday contact with [the daughter] and from 11 am until 4pm on the Sunday contact with [the daughter].

6.That the Husband submit to such personal testing for the use of illicit drugs including but not limited to cocaine on not more than 3 occasions in each year.

6.1.     Such testing to take place within 24 hours of the service upon the Husband of a Notice to Submit at such testing laboratory as the Wife may direct at the cost of the Wife.

6.2. In the event that any such test discloses or certifies that the Husband has used an illicit substance within the period since the prior test, then contact shall thereupon be suspended until further Order.

I certify that the preceding One hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  21 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARTNETT & SAMPSON