Financial agreement – Clause for the release of future maintenance declared void for non-compliance with s 90UH

In Corney & Hose [2010] FMCAfam 1462 (10 December 2010, but published 16 December 2011) Altobelli FM declared void a financial agreement’s recital (which the court “doubt[ed] … [was] really a recital”) purporting to release the parties from future claims for maintenance and ordered that the clause be severed from the agreement on the ground that the clause, which “relates to the maintenance of a spouse party” within the meaning of s 90UH, did not comply with that section which requires the party for whose maintenance provision is made and the amount or value of the property attributable to that maintenance to be specified.

Father’s application to reopen case dismissed – Children of 13 and 15 had expressed a wish for change – “Parenting orders should not be varied or discharged according to the whim of a child” – Those wishes must be underpinned by evidence that the parenting arrangements are not in the child’s best interests 

In Cortes & Cabrera [2007] FMCAfam 293 (16 May 2007) where the father sought to reopen a case when children of 13 and 15 had expressed a wish for change Wilson FM (at para 25) held that “parenting orders should not be varied or discharged according to the whim of a child”.

“Weekend dad” granted an extra night with his children (a sixth night per fortnight) – Week on/week off arrangement not favoured due to continuing conflict between parties  

In Costa [2009] FMCAfam 568 (17 July 2009) Bender FM granted the father (who saw himself as a “weekend dad”) an extra night with his children, being a sixth night per fortnight, a week on/week off arrangement not being favoured due to continuing conflict between the parties.

The Court concluded (at [153]-[154]):

“I am satisfied that [X] and [Y] would like to spend a little more time with their father and that the addition of a school night without outside activity would be a positive experience for them and enable the husband to spend some more balanced time with the children. 

Expanding on that issue of balanced time, there was a criticism levelled at the husband that when the boys were with him, he was trying to pack too much activity and excitement into that time and that he needed to cut back on the activities and just allow the boys to have some quiet and relaxing time with him as well. This criticism is, I feel, justified and the husband needs to ensure that the boys’ time with him is more balanced and that they are not being returned to the wife tired, exhausted, grumpy and out of sorts.”

Superannuation – Pre-cohabitation and post-separation contributions by one party

In Coventry & McNamee [2011] FamCAFC 123 (9 June 2011) Strickland J dismissed the wife’s appeal against Mead FM’s assessment of the parties’ contributions to the former family home at 60 per cent in favour of the wife; and to the husband’s superannuation at 60 per cent in favour of the husband. There were three children of the marriage. At the beginning of their pre-marital cohabitation the husband had been in the RAAF for seven years and the wife was not in paid employment. At separation, after a 10 year relationship, the wife continued to live in the family home with the children and her child of her previous relationship. The husband, who continued to meet the wife’s household expenses and child support, lived in rental accommodation.

Mead FM had taken a separate pools approach to contributions to the asset pool which comprised the home ($252,000) and the husband’s superannuation ($581,457). Mead FM assessment of contributions was held not to be in error. 

Strickland J said at paras 56-57:

“It is quite apparent from her Honour’s reasons that she was alert to the fact that the husband was the sole contributor to his superannuation pre-cohabitation and the sole further contributor post-separation. ( … )

However, her Honour was also aware of the significant indirect contributions made by the wife in the form of the level of responsibility she assumed for the parties’ children during cohabitation … This enabled the husband to study and advance his career which led to his ability to increase the level of his superannuation. Her Honour also found that this indirect contribution continued beyond separation … Importantly there is no challenge in this appeal to her Honour’s findings as to the wife’s indirect contributions during cohabitation and post-separation.”

Overseas relocation refused – MRR v GR applied – Likelihood of “emotional detriment” to young children (3 and 5) if their regular time with child-focused father reduced to a couple of times a year 

In Cowley & Mendoza [2010] FamCA 597 (16 July 2010) Murphy J heard a dispute between child-focused parents where the mother sought to return to her country of origin and have the children (aged 3 and 5) live with her. The father sought an order that they live in Australia and spend week about time with each parent.

Murphy J said this at para 33:

“Findings about best interests [in s 65DAA of the Family Law Act] might be seen to have a predominant relationship with the child; findings about reasonable practicability [in s 65DAA] might be seen to have a predominant relationship with the parents. Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:

‘In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.’”

(Reflections on MRR v GR (2010) 84 ALJ 296)

In a summary of the principles to be applied since MRR v GR Murphy J said this at paras 41-43:

“The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93- 286), would, then, appear to me to require a court contemplating the making of parenting orders to:

  • First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
  • Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
  • Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
  • Determine…whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters…inapplicable or rebutted or, presumption or not, whether such an order should be made;
  • If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
  • If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
  • Make findings as to whether the…children’s best interests are best met by an order for equal time; and
  • Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
  • Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”) [if “the reality of the situation of the parents and the child” was for the applicant to relocate or not relocate: Editor’s note]; and
  • If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
  • If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).


It might be thought that, as a matter of logic, if neither party seeks an order for either equal time or substantial and significant time, a consideration of the power to make such an order may become moot. But, that is clearly not so. First, the court must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests. (See, eg. U v U (2002) FLC 93-112). Secondly, while, in accordance with the High Court’s judgment in MRR, s 65DAA contains the power to make those orders, the section also plainly casts an express obligation upon the court to consider the exercise of the power to make each such order in the prescribed manner when the precondition to its application is met (viz. an order is to provide for equal shared parental responsibility). That statutory obligation exists despite the fact that, in any given case, neither party seeks an order of either type.”

Murphy J proceeded to apply the presumption that it was in the children’s best interests that their parents have equal shared parental responsibility (in the absence of “family violence” or “abuse” to rebut the presumption); held there should be such an order, the parents and ICL all seeking it and “the evidence point[ing] clearly to that order being in the children’s best interests”; and examined the parties’ and ICL’s care proposals, saying this at para 82:

“In my view, the mother’s choices have neither more, nor less, ‘legitimacy’ than the father’s choices. The mother – understandably and legitimately – wishes to live in Brazil. Brazil is a country where her family lives and with which she identifies. She considers it a preferable place to live to Australia. It is understandable that a caring and loving mother would want her children to live with her in that country. Equally, the father – understandably and legitimately – wishes to live in Australia. It is the country of his birth. He likes living here. He considers it a preferable place to live to Brazil. It is understandable that a caring and loving father would want to have his children living with him in Australia.”

His Honour from para 85 considered a number of findings, including the report writer’s view that the children, particularly at their age, would be “likely to suffer at least some emotional detriment” if their time with one parent were effectively reduced to a couple of times a year, which “can be destabilising, thus, undermining their capacity to form secure attachments to either of their parents and form healthy relationships as adults. Such an arrangement can cause children to become anxious and stressed which can impact upon their developmental progress”.

His Honour at paras 107-108 said:

“With very young children, though, “available time” or “experiential time” [the words of Ms E, the report writer] can be extremely important. Here, the children are yet very young and each of their parents has participated significantly in their day to day care. (…)

Those factors together with the continued cohabitation of the parties under the one roof are the apparent foundation for Ms E’s opinion that the children were securely attached to each of the parties (as distinct from being primarily attached to one or the other). I accept that opinion.”

Murphy J at para 112 also agreed with the following statement of the report writer:

“Ideally, if the issue of relocation is not a factor, I would be likely to promote a parenting arrangement that allowed the children to live with one parent and spend periods of time (eg hours) with the other parent on a regular basis (eg daily on alternative days) graduating to overnight, and eventually as they mature, to an equal shared care arrangement.”

The order made was for the children to spend three consecutive nights with each parent successively graduating to a shared time arrangement. 

Appeal – Expedition of an appeal hearing – Relevant principles

In Cox & Pedrana [2012] FamCAFC 167 (17 October 2012) May J granted the mother’s application for an order that the hearing of her appeal be expedited. The mother’s appeal was against the order of Bell J that the child, who had been living with the mother since separation in 2006 (and at the trial was spending only supervised time with the father), live with the father and spend no time with the mother for two months. The father opposed expedition but the Independent Children’s Lawyer had no objection. 

May J reviewed expedition principles at paras 7-8 as follows:

“Section 94(2D)(j) of the Family Law Act 1975 (Cth) … provides for applications to expedite the hearing of an appeal. There is no specific provision in the Act or the Family Law Rules 2004 … in relation to the criteria or considerations to be applied at the hearing of such an application.

Some reference can be made to r 12.10A which addresses the expedition of the first day before a trial Judge. While a number of factors contained therein are not directly relevant to the expedition of an appeal hearing, a number of the ‘relevant circumstances’ and the underlying principles reflected are instructive (see Boland J’s approach in Moxon & Moxon [2010] FamCAFC 67 and unreported [2010] FamCAFC 176). The rule provides:

(2)     The court may take into account:

(a)     whether the applicant has acted reasonably and without delay in the conduct of the case;

(b)     whether the application has been made without delay;

(c)     any prejudice to the respondent; and

(d)     whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

( … )

(4)     For paragraph (2) (d), a relevant circumstance includes:

(a)     whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

(b)     whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

(c)     whether the applicant is suffering financial hardship that:

(i)      is not caused by the applicant; and

(ii)     cannot be rectified by an interim order;

(d)     whether the continuation of interim orders is causing the applicant or a child hardship;

(e)     whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

(f)      whether the case involves allegations of child        sexual, or other, abuse; and

(g)     whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.”

May J continued at para 9:

“In essence, [counsel for the mother] submitted that the important features of this case are that radically different arrangements are now in place for the child as a result of the Court’s orders, and that there are substantial errors made on the face of the reasons demanding the scrutiny of the Full Court sooner rather than later.”

May J found that the mother’s application had been made without delay (paras 13-15) and that expedition would not prejudice the respondent (paras 16-17), adding at para 18-21 as to “relevant circumstances”:

“There are circumstances in this matter which favour expedition of the hearing of the mother’s appeal. It is a matter which involves allegations of child abuse and issues relating to the health of the mother. The orders are not stayed and involve a graduated change to the mother’s time with the child. She presently has no physical contact with the child and is not permitted under the orders to have unsupervised time with the child for at least another three and a half months. After that time, the mother’s contact under the orders remains restricted to unsupervised alternate weekends.

As mentioned, the orders radically changed the child’s circumstances and no stay was granted. If the father is correct that there is no merit in the appeal then that is another reason to have the appeal disposed of as soon as reasonably possible.

In comparison with many appeals concerning children and the need for expedition, in this case the merits of expedition could be regarded as marginal, however an order for expedition should be made. Appreciating that this order may cause the hearing of this appeal to displace others waiting to be heard, it should be noted that there are some unusual features of the matter, to which I have referred, requiring such a step.

In any event, in making the order for expedition it is not intended that the matter be heard any earlier than February next year. The appeal hearing will therefore be approximately six months after the making of the orders, which cannot be said to constitute a significant expedition of the matter. The matters arranged to be heard before then will not be displaced and it will also allow a reasonable time for the preparation of the appeal.” 

Child support – SSAT appeal – Failure to identify legal entities or business interest 

In Crabbe (SSAT Appeal) [2011] FMCAfam 24 (14 January 2011) the appellant argued that the Tribunal erred in finding that the company that employed him and the business partnership it traded as (in which he held a 20% share) were, having regard to “business reality”, one and the same, classifiable as a “business”. 

Coker FM agreed, saying at para 24:

“ … the Social Security Appeals Tribunal … cannot ignore the law and cannot simply seek to superimpose their own considerations of what might be appropriate, above what is clearly the legal position … “

The submission that the finding that the appellant had an equal interest in the partnership was erroneous was also upheld. Referring to the company’s records as to the appellant being neither a director nor a shareholder of the company, Coker FM at para 29 said:

“There is no evidence other than, perhaps, the suspicions held by the … Tribunal that the appellant is controlling the funds of the company or is using a corporate veil to disguise his control of that company.”

The court upheld a third submission that the Tribunal erred in dismissing the effect of a separation agreement between the appellant and his business (and former de facto) partner under s 272 of the Property Law Act 1974 (Qld), which clearly did not vest any legal control of the company in the appellant.

A fourth ground of appeal that the Tribunal had wrongly found the appellant’s income to be $344,000 (calculated as one half of company profit plus the salary the Tribunal found the company had paid him) was allowed too, Coker FM at para 39 saying:

“Finally, it was submitted, and it appears, I must say, to be unanswerable, that there is no basis in law for the company to be required to distribute the amount of $314,000 or in fact any other amount to the appellant, as he is not entitled to receive a dividend, pursuant to the incorporation of the company … ”

The court further accepted that the Tribunal had failed to have proper regard to the uncontested evidence of the appellant’s medical practitioner as to his health and capacity for work. Further successful grounds of appeal are set out from para 48 of the judgment.

Section 78 declaration – Recognition of equitable interests – Relevant principles – Constructive trust – Joint endeavour  

In Crafter and Ors [2011] FamCA 122 (3 March 2011) Murphy J at paras 67-85 reviewed case law as to the recognition of equitable interests by virtue of a constructive trust, joint endeavour and other equitable interests.

Wife receiving “hurt on duty” pension in payment phase – Separate pools approach – Wife’s post-separation contributions offset by those of husband

In Crawford [2012] FMCAfam 1315 (4 December 2012) the parties, both police officers, had a relationship and were married for a total period of 20 years. They had three children, aged 12, 14 and 17. Their property comprised net non-superannuation assets of $644,000 and superannuation of $1.6 million of which $987,000 odd was the value of the wife’s pension from her superannuation scheme, being a pension in the payment phase received by her since retiring from the police service three years before separation due to an injury while on duty. The husband continued to be employed as a police officer.

Altobelli FM assessed contributions until separation (excluding the wife’s pension) as equal (para 40) and while the wife was found to have made superior parenting contributions in the three years since separation, “particularly in circumstances where her income was less than that of the husband and where the child support paid did not meet the actual expenses of the children” (para 41) the court accepted the husband’s argument that the wife’s greater post-separation contributions were offset by his assumption of liability for a mortgage liability and the court’s refusal to allow addbacks sought by him (para 42).

As to the wife’s pension, Altobelli FM proceeded to examine the terms of the pension as set out in a joint expert statement, saying at paras 46-54:

“The wife’s contention in relation to her pension is that it should be treated as belonging to a separate pool, and that contribution should be assessed in her favour as to 82 per cent. The husband’s contention is that the wife’s pension should not be treated as part of a separate pool, and that his contribution should be assessed as being equal to that of the wife.

The court rejects the husband’s contention that the pension should not be treated as part of a separate pool. The weight of authority favours an asset-by-asset, or separate pools approach to superannuation benefits in the payment phase, particularly when the benefit cannot be commuted to a lump sum, but also in cases where commutation is theoretically possible, but the evidence indicates it is not likely. On the facts of this case, for example, there is no evidence that the wife will seek to commute her pension at any time. The weight of authority includes PJM & STM (2005) FLC 93-242, Cahill & Cahill (2006) FLC 93-253, T & T (2006) FLC 93-263, Schmidt & Schmidt [2009] FamCA 1386 (2 April 2009), Wheeldon & Wheeldon [2011] FamCA 40 (7 February 2011), Treloar & Treloar (No 2) [2007] FamCA 1127 (16 August 2007), Hayton & Bendle [2010] FamCA 592 (16 July 2010) and Semperton & Semperton [2012] FamCAFC 132 (25 August 2012). Many, but not all, of these cases deal with DFRDB pensions which, whilst not possessing identical features to the wife’s pension, have very many similar features, in particular an income stream the value of which is capitalised, based on an actuarial statutory calculation.

The real issue in relation to the wife’s pension, therefore, is how to assess contribution to it. The husband’s case is that he contributed equally to it. Whilst he concedes that the trigger for the receipt of the wife’s entitlement was that she was hurt on duty, and thus retired from the New South Wales police, he submits that in reality the wife’s entitlements are derived from a period of employment of almost 20 years, most of which took place during the marriage. Moreover, the reality of the contribution made by each of them during the marriage, directly and indirectly, financially and non-financially, over a long marriage enabled them each to work, and thus he contributed to the accumulation of the wife’s entitlements in this regard. The husband contends for no relevant distinction being drawn as between the contributions that each made over many years: Burke & Burke (1993) FLC 92-356.

The wife’s case emphasises the peculiar nature of the pension. It is a periodical, indexed payment granted by statute. It became payable only because the wife was hurt on duty. It is designed to replace lost income, and is therefore not compensatory in nature. It continues until death, and thus retirement age is irrelevant.

One of the issues between the experts in this case was whether it was possible to break down the value of the wife’s pension ($987,717) into components which would then facilitate a contribution-based assessment. Thus Mr B for the wife expressed the opinion that it was possible to distinguish between pre- and post-retirement benefits by calculating the value of the pension payments between the present, and the maximum retirement age, as if the pension were a fixed term pension. His opinion, therefore, based on the assumptions he made, is that the $987,717 has different characteristics prior to and post retirement age:

•      Pre-age 65 amount – $751,484

•      Post-age 65 amount – $236,233

Implicit in the wife’s case is that it is only the post-age 65 component to which it could be argued that the husband had made any contribution, as the balance merely represents her lost income.

Whilst Mr S disagrees with Mr B’s methodology, the reality is that even he concedes that the value of the pension can be broken down into two components that he calls the compensation component, and the retirement component. He places a lower value on the compensation component, and higher value on the retirement component pointing out, for example, that by the time the wife retired after 20 years’ service, she had already accrued a substantial benefit for retirement purposes.

Ultimately, neither Mr B nor Mr S’s expert evidence directly assists the court in assessing whether, and if so to what extent, the husband has made a contribution to the wife’s pension. Indirectly, however, their evidence confirms that in reality the wife’s pension does have some component to it that is not exclusively referable to her injury. To that extent the husband must have contributed to it, a fact conceded by the wife who submits his contribution should be assessed at 18 per cent.

Assessing the husband’s contribution to the pension is more art than science. The different character of the pension is an important factor. Other cases might provide some guidance, but ultimately each case is different, and thus different judicial approaches might be warranted: Thackray & Ryan JJ in Semperton (op cit), paragraph 190. Thus, for example, in T & T the non-beneficiary spouse was awarded 15 per cent. In Schmidt it was 10 per cent. In Wheeldon it was 15 per cent, Treloar 15 per cent, and in Hayton & Bendle it was also 15 per cent.”

Altobelli FM concluded at para 57:

“Doing the best the court can do under the circumstances, the court would have in fact assessed the husband’s contribution to the wife’s pension at 15 per cent. As the wife herself proposes 18 per cent, a figure which is well within the reasonable range for assessing the husband’s contribution, the court will adopt this figure.”

Altobelli FM took an asset by asset approach (para 58) finding contributions to Pool A (non-super assets) as equal and to Pool B (wife’s pension) as 82/18 per cent in favour of the wife. As to Pool C (husband’s super of $637,000 odd) Altobelli FM said at para 61:

“In relation to Pool C, the husband’s superannuation, the somewhat odd situation in this case is that whereas the husband contended, in effect, that the wife had contributed to 50 per cent of this pool, the wife’s contention is that her contribution should only be 37 per cent. Whilst the precise rationale for the wife’s contention that she only contributed 37 per cent of the husband’s superannuation is unclear, nonetheless if that is what the wife contends for, and in circumstances where the court might have accepted an argument for a higher contribution, the court will nonetheless settle for what the wife contends.”

As to s 75(2) factors (care of children and disparity in earning capacity) Altobelli FM said at para 77:

“A finding of a 10 per cent adjustment in the wife’s favour, producing a 20 per cent discrepancy, is available without any reference to the nature and quality of the wife’s pension. The court so finds. The 10 per cent adjustment, however, should not be calculated by reference to the wife’s pension as that would not be just and equitable as regards the husband, and it would otherwise carry an air of artificiality. Indeed, the 10 per cent adjustment should only be calculated by reference to the non-superannuation pool. This means the wife receives $128,945 more than the husband. The focus here should be on the quantum of the adjustment rather than which pool it is levied against. Thus, the wife would be entitled to 60 per cent of Pool A, 82 per cent of Pool B, and 37 per cent of Pool C.”

Advances from husband’s parents found to be gifts not liabilities – Effect of husband’s imprisonment on contributions and s 90SF(3) issues

In Barclay & Paston [2015] FCCA 744 (2 April 2015, published 9 March 2016) Judge Howard heard a de facto property case involving a relationship of about 2.5 years where during the relationship Mr Paston was sentenced to 28 years imprisonment for murder with a non-parole period of 21 years (which the Court noted would make him eligible for release in 16 years). The parties had a child, now aged 5.

Mr Paston argued that his parents lent him monies totalling more than $200,000 which resulted in there being a negative net asset pool. Ms Barclay disputed the alleged loans. Further, the only significant asset of the parties was real estate (“Property L”) which Mr Paston owned for 6 years before the parties’ relationship ([21]).

The Court said (from [23]):

“…     Monies were … made available by Ms K [Mr Paston’s mother] to her son as follows:

a.      $90,000 in the year 2000 (by way of transfer of a property …;

b.      $20,000 in 2005 – to assist with the purchase of shares in a business; and

c.      $10,000 in 2008. …

[24]    … [The] evidence makes it clear that Ms K gave funds to her son totalling $30,000 ($20,000 in 2005 and $10,000 in 2008).

[25]    After the respondent was arrested … Ms K provided further funds to assist both the respondent and the applicant. …

[26]    The amounts advanced to the applicant (at about the time the respondent was arrested) either by the respondent or the respondent’s mother total approximately $15,000. …

[27]    In addition, the respondent alleges that his father Mr Paston Senior forwarded monies by way of a loan totalling $35,000.

( … )

[29]    I have come to the conclusion that the monies forwarded by Ms K to her son, the respondent (or to the applicant for that matter), do not in fact constitute a loan. There are many reasons for this conclusion [including the absence of] evidence of a loan agreement (oral or written) between the respondent and his mother (or his father for that matter) ( … ).

[30]    The preponderance of evidence leads me to conclude that the monies advanced by the respondent’s parents to him at various points in time from the year 2000 onwards – do no constitute loans. The respondent is not legally obligated to repay those sums to his parents.”

After finding the net asset pool was $153,831 the Court assessed contributions as 60:40 in favour of Mr Paston, noting that he had “practically made all of the financial contributions” including his initial contribution of the Property L property, but that Ms Barclay had cared for the parties’ child throughout his life, given Mr Paston’s imprisonment ([46]).

The Court made a 40 per cent adjustment under s 90SF(3) in favour of Ms Barclay (producing an 80:20 adjustment to her overall), saying (from [49]):

“…     I note that the respondent will be in prison for at least the next 16 years … It may sound harsh, but, nonetheless the bleak reality is that the respondent will have provided for him all of his temporal needs whilst in prison – in particular I refer to all necessary food, shelter and the other necessities of life. He will have very minimal expenses, if any.

[50]    The … mother has to care for the child. The child is only five years old and there are 13 more years of his childhood. All of these expenses will fall to the mother. She receives no child support. She will need to continue to work as best she can and possibly re-train.

[51]    The cash left in the available pool totalling $88,881 will not be enough to pay for the needs of the applicant to assist her in the raising of the child. Even when one takes into account the additional $51,000 that was paid to the applicant – by way of partial property settlement by order of the Full Court – one could still not say that is sufficient monies to pay for the raising of the child. That is especially so when the Court has regard to the fact that the applicant has approximately $20,000 in debt … ”