ABBEY & ABBEY - [2011] FMCAfam 1072

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABBEY & ABBEY

[2011] FMCAfam 1072

FAMILY LAW – Parenting – property – separated siblings – oldest child estranged from father – both parents lack capacity – both parents neglect the responsibilities of parenthood – costs for Independent Children’s Lawyer.

Family Law Act 1975, ss.75 (2), 117

Jones v Dunkell (1959) 101 CLR 298
Rice v Asplund (1979) FLC 90-725
H v W (1995) 92-598
R v R (Children’s Wishes) (2000) FLC 93-108
Re G: Children’s Schooling (2000) FLC 93-025
Black v Kellner (1992) FLC 92-287
Weir v Weir (1993) FLC 92-338

Applicant:

MS ABBEY

Respondent:

MR ABBEY

File Number:

PAC 4003 of 2008

Judgment of:

Dunkley FM

Hearing dates:

25, 26 and 27 August 2009, 27 October 2009, 11, 12 and 13 October 2010, and 23 and 24 December 2010

Date of Last Submission:

4 April 2011

Delivered at:

Parramatta

Delivered on:

13 October 2011

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Karen L Haga & Associates

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Watts McCray Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Gilles

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

All prior parenting orders are discharged, except for orders made on

23 December 2010 and except for orders made relating to [X]’s schooling.
The mother shall have sole parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2000 except for issues relating to the children’s education. For the issues of education the parents shall have equal shared parental responsibility.
[X] shall live with the mother.
[X] shall spend such time with her father as is arranged between her and the father.
[Y] shall live with his father each alternate week from after school Monday until the end of the school day on Monday the next week.
[Y] shall live with his mother each other week.
The father shall cause [Y] to be enrolled at [O] School commencing in 2013 and thereafter [Y] shall attend [O] School for his high school education and the father shall be solely responsible for the payment of [Y]’s school fees and expenses. The father shall authorise and direct the school to provide information and notices to the mother about but not limited to [Y]’s school attendance, attainments and progress and she shall be entitled to attend all school events to which parents are invited.
In the event there is no place available for [Y] at [O] School, both parents shall cause [Y] to be enrolled at [F] School and the parents shall equally pay [Y]’s school fees and expenses at [F] School.
Each parent shall purchase at least one (1) full set of school uniforms and sports uniforms for [Y] for the high school at which he attends.
Neither party shall register or enrol [Y] in any out of school activity without the other parent’s consent if that activity would necessitate weekly involvement.
Each party shall notify the other party of any medical treatment received by either child.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequence that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in the orders.
The husband shall pay to the wife the sum of $62,659.00 within ninety (90) days of the date hereof.
Simultaneous with and conditional upon order 13 the wife shall transfer to the husband her right title and interest in Property T.
Simultaneous with and conditional upon order 13 and 14 the husband shall refinance any mortgage or loan secured over Property T into his sole name.
If the husband has not complied with orders 13 and 15 within ninety (90) days of the date hereof order 4 made on 12 February 2010 is discharged and the husband shall thereafter within fourteen (14) days list for sale by auction the [S] property with a reserve of $395,000 or lesser agreed reserve and on sale shall cause the proceeds to be disbursed as follows:
(a)In payment of auction fees and expenses;
(b)In payment of real estate agents commission and expenses;
(c)In payment of conveyancing costs and expenses;
(d)In discharge of any mortgage secured over the property;
(e)In payment to the wife of the sum of $62,659.00 together with interest calculated in accordance with the rules for the period after ninety (90) days from the date of these orders until the date of payment;
(f)In payment of any balance to the husband.
If the wife has not received $62, 659.00 plus any due interest, within 150 days of the date of these orders the property at Property T shall then be listed for sale by auction and on completion of the sale the proceeds shall be disbursed:
(a)In payment of auction fees and expenses;
(b)In payment of real estate agents commission and expenses;
(c)In payment of conveyancing costs and expenses;
(d)In discharge of any mortgage secured over the property;
(e)In payment of the wife of $62,659 (or any outstanding balance thereof) together with interest calculated as provided in order 16(e);
(f)In payment of any balance to the husband.
The wife is declared solely entitled to the property at Property E.
It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:
(a)Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;
(b)Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then a Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Each party shall pay to Legal Aid NSW within ninety (90) days of the date of this order a contribution towards the Independent Children’s Lawyers costs in the sum of $1,500.00.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4003 of 2008

MS ABBEY

Applicant

And

MR ABBEY

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings for final parenting and property orders.
Most of the oral evidence was focussed on the parenting issue. Mr and Ms Abbey have two children, [X] aged thirteen and [Y] aged eleven. [X] lives with her mother and spends no time with her father. [Y]’s time is divided between his parent’s households. Mr and Ms Abbey’s interactions with each other post their separation is mostly non existent but when they do occur are “infantile” and without child focus. They each lack the willingness to co-parent or parallel parent.
They each lack the capability and resources to parent [X] and as a consequence an order was made on the 23rd December 2010 pursuant to s.20 of the Children and Young Person (Care and Protection) Act 1998 (NSW) requiring the Independent Children’s Lawyer to seek the assistance of the Director General of the Department of Human Services on behalf of [X]. The court as at the date of this judgment does not know whether the Department took any action.
The final hearing was conducted over nine days in August and October 2009 and October and December 2010. The final hearing was interspersed with interim applications.
Neither of Mr nor Ms Abbey’s capacity and capability as a parent improved over the period of the final hearing. Rather, there was an observable decline. Their ability to focus on the needs of their children diminished from a low base.
For the children it is one of the saddest and most depressing of cases. I do not hold much hope that the ending of litigation will bring about much improvement in the children’s experience of their parents.
On 27 August 2009 the parents reached agreement on final parenting orders, and orders were made. The property component of the case was adjourned part heard. By the resumption of the hearing in 2010 the parenting orders were not being implemented due to changed circumstances and the parenting aspect of the case was re-litigated. Each party asserted the change in circumstances was such as to satisfy the criteria in Rice v Asplund (1979) FLC 90-725.

Chronology

The background of the case is as follows:
a)1961 – Wife born.
b)1961 - Husband born.
c)1988 – Wife’s parent’s gift to her Property E, the home in which she now lives.
d)1995 – Parties marry.
e)July 1995 – Parties purchase Property T, the home in which the husband now resides.
f)1998 – Wife receives inheritance from her father’s estate of $133,620.84.
g)1998 – [X] born.
h)1999 – Parties commence renovating the Property E property.
i)2000 – [Y] born.
j)2002 – Husband receives $179,412.36 from the sale of a commercial property at Property R. A property he owned prior to the parties cohabitation. Sale proceeds were used to benefit the family.
k)2003 – Property at [S] purchased in the husband’s sole name.
l)2005 – Husband acquires and commences to run an [omitted] business which he still operates.
m)12 February 2008 – Parties separate.
n)8 September 2008 – Interim parenting orders – [X] lives with mother and spends time with father as she wishes, [Y] lives week about.
o)27 August 2009 – Final Parenting orders made by consent. Parties have equal shared parental responsibility, [X] to live with mother, [Y] to live with each parent week about with changeover on Monday.
p)20 January 2010 – Orders made for the sale of [S] property. Order for [X] to attend [M] School.

Property

The parties agree as to the description of the assets that make up the matrimonial pool of assets.
The parties have significant agreement with respect to the value of those assets.
The parties agree that the wife has had the benefit of $30,000.00 which is to be added back to the pool of matrimonial assets.
The parties disagree as to the value of the [omitted] business operated by the husband. The wife asserts that the husband’s [omitted] business including the [vehicle omitted] out of which he operates that business has a value of $39,503.00. The husband asserts that the business including the [vehicle omitted] from which it is operated has a value of $35,000.00.
Neither party has led any expert evidence with respect to the value of the husband’s business.
The parties agree as to the payout figures with respect to the mortgages secured over the properties at Property T and Property S.
The parties disagree as to whether there is a liability owed by the husband to the paternal grandfather.
The wife says that the husband does not owe the paternal grandfather any monies. The husband says he owes his father $140,000.00.
The husband’s father did not give evidence.
The husband sought to have admitted in evidence a document which he prepared which he asserted showed the amounts that he said he had received by loan from his father. There was an objection to the tender of the document. The document did not become part of the evidence. The father’s evidence was that the money was advanced post separation by the paternal grandfather to enable the father to pay his legal fees. There were no bank statements proffered in support of this assertion. The husband was given permission to call the paternal grandfather to give evidence if he wished. He did not do so and no explanation was advanced for that fact. Having regard to the decision in Jones and Dunkell (1959) 101 CLR298 the inference is drawn that the paternal grandfather’s evidence would not have assisted the husband in his assertion that he owed his father $140,000.00. Considering the lack of corroborative evidence, and the unsatisfactory nature of the husband’s evidence on this issue I find that the husband does not owe his father $140,000.00 and that amount will not be included when determining the value of the matrimonial pool of assets.
Both parties agree that the husband’s [omitted] business was purchased in 2002 for $55,000.00. Exhibit AA is the taxation return for the year ending 30 June 2009 filed by the husband prepared by his accountant [name omitted]. It shows the [vehicle omitted] from which the [omitted] business is conducted having a written down value as at that date of $6,678.00. The depreciation worksheet for the [omitted] business shows a written down value of the plant and equipment including the [vehicle omitted] relating to that business to be $39,503.00. The [omitted] business returns a modest disclosed income. The husband operates the business 5 days per week. The wife helped with the business prior to separation.
Neither party led any evidence as to the good will of the husband’s [omitted] business.
Neither party led any evidence seeking to value the business capitalising its income.
The conclusion arising from the above evidence is that the value of the business is represented by its underlying asset values which are $39,503.00. This is the value that will be used when calculating the matrimonial pool of assets.
As a consequence of the above, the matrimonial pool of assets, liabilities and superannuation at the date of the hearing is as follows:

Matrimonial pool of assets

Property/Assets	Amount
Property T (J)	$480,000.00
Property E (W)	$560,000.00
Property S (H)	$395,000.00
[omitted] motor vehicle (W)	$14,250.00
[omitted] bank account (W)	$2,527.00
[omitted] business including [vehicle omitted] (H)	$39,503.00
Tractor (H)	$731.00
[omitted] bank account (H)	$800.00
Addback monies paid to wife	$30,000.00
TOTAL PROPERTY/ASSETS:	$1, 522 811.00
Liabilities
Mortgage over Property T	$125,810.00
Mortgage over Property S with the husband sole borrower and the wife as guarantor	$312,713.00
TOTAL LIABILITIES:	$438,523.00
Superannuation
Husband’s superannuation	$31,438.00
Wife’s superannuation	$0.00
TOTAL SUPERANNUATION:	$31,438.00
TOTAL NET ASSSETS INCLUDING SUPERANNUATION:	$1,115 726.00

H = Husband W = Wife J = Joint

Contributions

At the time of the commencement of the relationship the husband asserted that he owned a commercial property at Property R which he said was worth $250,000.00 and was subject to a mortgage of $85,000.00. This meant that there was equity of $165,000.00. He had a Volkswagen motor vehicle at no disclosed value. He had savings of $40,000.00 and his superannuation interest was then $20,000.00.
The wife does not dispute the assets owned by the husband at the commencement of the marriage. Nor did she dispute the value of the assets as at marriage. She was silent as to the value of the husband’s commercial property at Property R. She takes no issue with the balances asserted for his superannuation.
I therefore accept that the husband had at cohabitation equity of approximately $165,000.00 in his commercial property at Property R. This property was sold in 2002 and the net equity generated was $179,412.36.
At the commencement of the relationship, the wife owned the property at Property E unencumbered. She had savings of $80,000.00 and some personal possessions.
She did not provide evidence as to the value of the Property E property at cohabitation.
The husband says that he is aware from the value of similar properties at Property E that the property would have a value of $129,000.00. He has no expertise in the valuing of properties. He gives no evidence as to how he is aware of the value of similar properties or how he is aware of the timeframe in which he ascribes those values. I reject, therefore, the husband’s evidence as to value of Property E. The value of the Property E property at the time of cohabitation is unknown. It is at the date of the hearing a significant proportion of the parties assets. It has been renovated during the period of the relationship. The parties on their evidence have each contributed to the renovations.
During the marriage the Property E property was rented and the rental income was used for the benefit of the family. The property is a dual occupancy and part remains rented currently.
In 1998 the wife received an inheritance from her father’s estate in the sum of $133,620.00. These monies were used for the benefit of the family.
During the marriage she was the principal home maker. She attended to the needs of the children.
The husband was in full time employment for the majority of the period of the marriage. The wife helped with the [omitted] business prior to separation.
The husband assisted the wife with the children when he was at home.
The husband undertook home maintenance and renovation work from time to time, at both of the properties at Property T and Property E. The mother provided assistance as able.
The husband contributed any excess income from the [R] commercial property prior to its sale for the benefit of the family.
After separation the husband received the rental income from the [S] property which he used for his sole purposes.
He sought to comply with the order that he make payments with respect to the loan on the [S] property by allowing the party’s redraw facility to meet this payment.
This increased the parties’ liability. His assertion that he complied with the orders to meet the payments, therefore, is rejected.
After separation the wife had the benefit solely of the rental income from part of the Property E property.
The parties disputed very little about any of the above evidence except as to whether the husband had complied with the court orders of

6 February 2009 and 12 February 2010 to make repayments with respect to the mortgage on the [S] property. Which for the reason as explained above he did not.
The wife says that the [omitted] business is largely a cash business and the declared income does not reflect the takings. The husband conceded in cross examination that the year ending 2009 taxation return was based on estimations. He said he gave his cousin certain information. The cousin compiled the information and that information was given to the accountant who prepared the taxation return. Consequently the income of the [omitted] business is questionable. I am not satisfied, however, the husband has “pocketed” a substantial number of cash sales. Nor has the wife established a deliberate non disclosure on behalf of the husband such as would attract a Black v Kellner (1992) FLC 92-287 or Weir v Weir (1993) FLC 92-338 approach to the contribution analysis.
Considering all the above the wife has contributed 52% to the parties’ assets and the husband has contributed 48% as at the date of hearing.

Adjustments pursuant to section 75 (2)

The parties are of the same age.
The husband has [condition omitted] for which he takes medication.
The husband is in full time self employment earning a modest income. He runs a cash business. His last available taxation return had an estimated business income of $46,000.00. The wife is in part time employment earning a modest income. She supplements that income with rental income from the Property E property.
For some time now the husband has not been spending any time with [X]. The mother solely cares for [X]. The father has said that he will contribute to [X]’s school fees. His evidence as to this is accepted.

[X] has significant medical needs. There are publicly funded services available to meet [X]’s medical needs. As there is no evidence, as to cost, it is assumed Medicare meets all of [X]’s treatment costs, if any.
For reasons discussed later in this judgement the parents will have equal shared care of [Y]. [X] will live with the mother and likely will spend no time with the father. Both are under 18 years.
The father has a small amount of superannuation. The mother has none.
Neither party has repartnered nor cohabited with another person.
Accordingly there will be a 8% adjustment for factors pursuant to s.75(2) in favour of the wife.

Consequence

As a consequence the wife will be entitled to 60% of the net matrimonial assets. The husband will be entitled to 40% thereof.
The net pool of assets is $1,115 726.00. 60% thereof is $669,435.00 and 40% of the net pool of assets is $446,290.00.
If the husband retains the Property T property, the [S] property, the [omitted] business, the tractor, and his bank account and superannuation and assumes sole responsibility for the mortgages over the Property T property and the [S] property then he has net assets including superannuation of $508,949.00. He would therefore have to make a cash payment to the wife of $62,659.00 to give affect to the 60/40 split.
The father will be responsible for the liability to [insurance company omitted] arising in October 2008, after separation. This is a debt of about $12,000.00 arising from a car accident. He was uninsured. He also has his legal fees to pay.
As a consequence the wife would retain the Property E property, the [omitted] motor vehicle, her bank account. She has already had the benefit of $30,000.00. She has assets of $606,777.00. In addition she will receive a cash payment. The husband is ordered to pay to her $62,659.00. She has her legal fees to pay.
She will have the house at Property E for herself and the children to occupy.
If the husband is unable to refinance the two loans into his sole name and make the cash payment of $62,659.00 to the wife within ninety (90) days he will have to sell at auction the [S] property, which is already listed for sale by private treaty.
A further period will be allowed for the sale of the [S] property by auction and if the sum ordered to be paid to the wife has not been paid by 150 days, arrangements are to be made for the Property T property to be auctioned so that payment can be made to the wife.
Having considered the effect of the orders this outcome is just and equitable and no further adjustment is to be made.

Parenting

The issues to be decided are:
i)Is there to be an order for Equal Shared Parental Responsibility or Sole Parental responsibility? If sole parental responsibility, who is to have sole parental responsibility?
ii)With whom are the children to live?
iii)What time are the children to spend with the parent with whom they do not live?
iv)What High School is [Y] to attend?

Equal Shared Parental Responsibility or Sole Parental Responsibility?

The parents are incapable of communicating, with each other about the children. There is no evidence of them consistently successfully doing so.
They have been unable to make decisions about which school [X] would attend. They required court intervention, and orders. They cannot agree about the High School [Y] is to be enrolled at, starting in 2013.
They act pettily. For example on one occasion there was an inexcusable delay in the father making [Y] available to spend time with the mother when a birthday celebration was organised. In retaliation the mother kept [Y] for longer than the orders provided. She did so knowingly. She disregarded [Y]’s expressed concerns that his father would be angry. She knowingly engaged in behaviour thereby heightening [Y]’s level of anxiety and fear. The father on [Y]’s return was uncontrollably angry and vented his anger inappropriately in the presence of [Y].
The parents have been unable to co-operate about [X]’s care. The father is in denial as to the significance and severity of [X]’s problems. He believes she will “grow out” of it. [X] soils herself regularly in public and at home. She is seemingly unconcerned when she does so. She also needs firm direction in personal hygiene. She has been referred to [omitted] but the parents have not followed through with the referral. She is frequently angry and defiant with both parents. The mother is presently unable to have [X] fully comply with treatment or consult consistently with health professionals.
The father is disinterested. The Department of Human Services has been notified by [X]’s paediatrician[1], Dr H and by the Court[2].
[1] See report of Dr H to DOCS dated 14 August 2997 – Exhibit N.
[2] Order made on 23 December 2010 pursuant to section 20 Children and young Persons (Care and Protection) Act, New South Wales.
The father and [X] are estranged and spend no time together. This circumstance has existed for in excess of twelve months.
[Y] currently spends a week in each household, alternating between households. He expressed a desire to take up [sport omitted]. Rather than speak to the mother about it, the father directed [Y] to discuss it with his mother, he thought this was being fair to [Y][3]. Similarly the mother enrolled [X] in [sport omitted], at a time when she was spending time with her father, without consulting the father.
[3] Family Report dated 27 September 2010 paragraph 32. “[Y] is highly likely to be managing communication between the households”.
The mother and father’s communication about [Y] is so limited that the mother prepares a calendar regarding [Y]’s activities that she sends to the father. The father’s evidence is he does not understand the calendar.
Similarly he won’t use or read the communication book the mother implemented.
There have been incidents at [Y]’s school involving the father[4]. The principal reports feeling intimidated by the father’s conduct. The father admits raising his voice. He admits threatening to enter the school without permission. He denies disturbing other children. The principal called the police. The father is entirely unrepentant about his behaviour. He clearly cannot communicate effectively with [Y]’s school. He is considering taking legal action against the school.
[4] Exhibit S.
The mother concedes the children know their parents can’t get along.
The mother has regular communication with teachers at the children’s schools.
For these reasons there will be an order for Sole Parental Responsibility in favour of the mother, except for educational issues. She is best able to make discussions regarding the children. This order is contrary to the recommendation in the Family report at paragraph 38. The Family Report Writer whilst aware of parental communication difficulties has not fully appreciated that limitation.

With whom are the children to live

[X] has spent no time with her father since August/ September 2010.
On 5 October 2010 [X] wrote a letter to “the judge” expressing her wishes. The letter was written during a counselling session [X] was engaged in through [omitted] Family Services. [X] sent the letter to the Independent Children’s Lawyer. [X]’s counsellor helped her with formatting the letter[5].
[5] See Exhibit N which includes letter from [omitted] Family Services. [X]’s letter to “the judge” and [X]’s letter to the Independent Children’s Lawyer.
The father recognises that [X] does not want to spend time with him.
The father has not sought to engage in any family therapy with [X].
The mother says she is powerless, meaning she can not do anything more, to encourage [X] to have a relationship with her father.
The Family Report writer during cross examination confirmed the recommendation as recorded in paragraph 40 of her report, but did so without fully appreciating the extent of the estrangement between [X] and her father because at the date of the report (27 September 2010) it was only a recent development. By the finalisation of the hearing the estrangement had become long standing.
[X]’s school report[6] for semester two 2010 indicates she is an average to above average student compared to her year group. [X] is aged 13.
[6] Exhibit CC.
Her letter in which she expressed her views to “the judge” is balanced, and she appreciates the consequences of her views. [X] is a strong willed and defiant child in her relationships with her parents.
Her wishes must be taken into account, but the court is not bound by those wishes[7].
[7] See H v W (1995) FLC 92-598, R v R (Children’s Wishes) (2000) FLC 93-108.
[X]’s parents seemingly are accepting of her wish not to spend time with her father. Even though [X], at least in her letter, seems willing to spend day time periods with her father no such visits have taken place.
The father does not oppose [X] living with her mother.
Therefore, [X] is to live with her mother.
To order defined time between [X] and the father is likely to give rise to further litigation or parental conflict due to [X]’s defiance.
An order for the father and [X] to make their own arrangements will be in her best interest because:
a)It is age and developmentally appropriate;
b)It reduces the likelihood of further litigation;
c)It reduces the potential for parental conflict; and
d)It reflects the parental ceding to [X] of power to make that decision.
[Y] has since 2008 been living a week about arrangement with each parent. Such an agreement is what [Y] wants[8].
[8] See paragraph 20 of the Family Report of 27 September 2010.
Mr Abbey leaves home very early to operate his [omitted] business. He was initially dependant of his mother’s help in caring for the children when they were with him. Since mid 2010 he has become estranged from his mother. She will no longer help him. At the time of the hearing in December 2010 he had a boarder at his house, Mr D, who supervises [Y] getting ready for school. Mr D gets [Y] up in the morning and gets [Y] breakfast, prepares his lunch and takes him to the bus stop. Without Mr D’s help the father could not get [Y] to school. Mr D intends to move on from the father’s home in 2011. The father will need to either change his work hours, unlikely, or employ a person to help with and supervise [Y] in the morning. The father has finished work before the end of the school day and is then available for [Y].
The father was adamant he needed to be able to conduct his business.
The mother wanted to increase her work hours and found the transporting of [Y] to his school burdensome.
The father intends to remain living at Property T if at all possible. The mother intends to remain living at Property E. It is a 40 minute drive from the mother’s home to [Y]’s current school. The mother mainly drives [X] to school and then drives 30 minutes further to [Y]’s school. Both parents drive and own a motor vehicle.
The father regards the mother as a type of “monster”. His home telephone lists her as “Shrek”. He says [Y] finds it funny. The father believes it to be a joke. It reflects extremely poorly upon his attitude to the responsibilities of parent hood.
The father’s conflicted interactions with [Y]’s school also reflect poorly on him, as does the father’s inability to control his temper as evidenced at the events surrounding the birthday change over incident.
[Y] and [X], on the available evidence, have a difficult relationship. [Y] described his relationship with [X] to the family report writer[9] recorded in paragraph 22 as “the same as usual. He said that means they still fight but get along sometimes too”.
[9] See Family Report of 27 September 2010.
The family report writer notes in paragraph 32 of her report dated 27 September 2010 that “[Y] enjoys sharing time between his parents and feels special because of this”.
[Y] has spent equal time with his parents since before interim orders were made on 8 September 2008. That is a period of just over three years. He has done so in the midst of continued parental hostility, conflict and lack of communication. His school report for end of year 2010 which is part of exhibit CC shows [Y] to be doing well at school with sound or high achievement in all learning areas. [Y]’s teacher notes [Y] has not reached his fullest potential due to inconsistent effort. He is noted to work independently with a minimum of supervision. The teacher notes “one challenge for [Y] is his behaviour on the playground in relation to conflict resolution. Sometimes he reacts negatively to play ground situations”. This is undoubtedly a learned trait from his parents, about which they both should be ashamed.
Each parent has practical difficulty in arranging and implementing the week about regime. They have been able to continue to manage it. The father with the assistance of Mr D, the mother by having some flexibility in work hours. If the equal time arrangement continues so will the practical difficulty they experience.
Equal time has been working well for [Y] and continues to remain to be in his best interest. The practical difficulties that exist are not unreasonable, and are faced by many working parents. The alternative is for [Y] to live mainly with one parent and spend weekend time with the other. Whilst this would reduce practical difficulty it would not be in [Y]’s best interest by being contrary to his views, by being a significant change in circumstance and because it would detract from the meaningfulness of the relationship he currently enjoys with each of his parents.
Normally highly conflicted parents with extremely poor communication can not manage equal time arrangements. This case for the last three years has proven to be “the exception to the rule”.
Each of the parents has consistently demonstrated poor parental responsibility. Both during their cohabitation and afterwards. They have each been challenged in parenting [X] and their lack of capacity has undoubtedly contributed to her difficulties. They each seem able to undertake day to day tasks of parenting at a low level of capability. The only discernable difference is that the mother is less prone to anger than the father. However she has in the past disciplined [X] inappropriately due to anger and frustration.
In balancing the above an equal time order will continue for [Y].
The father proposes instead of a Monday changeover the changeover would occur on a Friday evening, so as to ease the arrangements. The evidence about this proposed change being easier is non existent. As a consequence the existing arrangement will not change.
In making an equal time order does not mean the mother has to continue with [Y]’s [sport omitted] during the time he spends with her. There is no detriment to attendance occurring only fortnightly, or only on weekends with her, and three times a week when with his father.
There will be an order that in the future neither parent enrol [Y] in an activity which he must attend weekly unless the other parents consent is given, notwithstanding the mother is to have sole parental responsibility for [Y].

What High School is [Y] to attend?

Determination of this issue is made having [Y]’s best interest as the paramount consideration.
[Y] is to start High School in 2013.
He has attended a Catholic education primary school, being [S] School since kindergarten. His sister attends a Catholic education high school. There is no presumption created by these facts[10].
[10] Re G: Children’s Schooling (2000) FLC 93-025.
The father proposes [Y] attend [O] School, a Catholic education independent high school. The father says [Y] has his mind set on attending [O] School. The mother led no evidence about [Y]’s views regarding his High Schooling.
The mother proposes [Y] attend a state high school being [B] School or [F] School which is the closest Catholic high school to her home. There is no presumption for the live with parent to decide. In this case [Y] will live equal time with each parent. The location and travel from the father’s home to the schools the mother proposes created difficulties for the father. Similarly the school proposed by the father created difficulties for the mother. The payment of school fees will create some hardship for each.
She says she cannot solely afford school fees for the children.
There is no evidence on which to base an assessment of the respective merits or detriments of any of the High Schools proposed for [Y]. Each school will undoubtedly provide a good education for [Y].
To minimise [Y] feeling differentiate with respect to his sister he should attend a Catholic High School if a place can be secured for him.
If [Y] attends [O] School it will accord with his wishes and cause him to be happy. This should increase the likelihood he applies himself to his high school education. His attendance at that school will be dependent on his father paying the fees as the mother is unable to afford to do so.
If there is no place for [Y] at [O] School or the father cannot afford the fees, then he is to be enrolled at [F] School and the parties shall equally contribute to and equally pay [Y]’s school fees and expenses. The school fees at [F] School are less than the school fees for [O] School. It is currently the stated evidence of the parents to equally pay for [X]’s school fees. The court does not know whether the parties implemented this stated intention in 2011.

Costs

The Independent Children’s Lawyer seeks an order that the parents pay the Independent Children’s Lawyers costs.
It is submitted by the Independent Children’s Lawyer the parents have sufficient assets to satisfy a costs order. Costs orders are governed by section 117 of the Family Law Act 1975:
Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
The court has a discretion under section 117(2A) to order costs be paid by a party.
Section 117 (3) and section 117 (4) are relevant to costs orders for Independent Children’s Lawyers and provide:
Section 117 (3) - To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
Section 117 (4) - However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Each of the mother and father will retain as a consequence of the property orders significant assets. Each of the mother’s and father’s income is modest.
Neither the mother nor father are in receipt of legal aid. Both have significant liabilities for costs to their own lawyers.
Neither party’s conducting of the proceedings raises concerns.
Neither the mother or father have wholly succeeded in their application.
There has been no offer of settlement made by the Independent Children’s Lawyer. The parties did settle parenting orders on a final basis on 27 August 2009 and it was then ordered there be no order for the payment of the Independent Children’s Lawyers’ costs.
The parties then re-litigated the parenting issue causing the reappointment of the Independent Children’s Lawyer.
Consequently an order for costs will now be made for each party to pay the Independent Children’s Lawyer an amount of $1500.00 each. To order a larger sum would cause financial hardship. Ninety days (90) to pay will be allowed.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Dunkley FM

Date: 13 October 2011