Bale-Sutch & Bale-Sutch

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH

[2009] FamCA 90

FAMILY LAW – CHILDREN – Parenting orders – conflictual relationship between the parents – children apprehensive about relationship with father – Equal parenting responsibility and shared time inappropriate and not in best interests of the children –
Father’s aggressive and inappropriate behaviour and mother’s reticence about promoting parental relationship – Both parents criticised

FAMILY LAW – CHILDREN – Supervision – Father’s time to be supervised pending completion of criminal proceedings in which wife is alleged to have been victim and 11 year old child has made statement to police which may result in him giving evidence – Supervision also necessary where there is apprehensive relationship between father and children – Contact centre inappropriate because of geographical problems and also father’s personality

FAMILY LAW – EVIDENCE – lack of proper evidentiary material and lack of challenge to assertions in affidavit material – Credit findings based on balance of probabilities

FAMILY LAW – PROPERTY SETTLEMENT WHERE VOID MARRIAGE – s 71 Family Law Act gives rise to Part VIII jurisdiction – Applicant seeks to have discretion exercised as if the parties were never married as would be the case under state law – Recent changes to federal laws and inconsistency of state laws about defacto relationships considered

FAMILY LAW – PROPERTY SETTLEMENT – Contributions favour applicant where significant inheritances received are used to build house post separation – Post separation parenting contributions where father does not pay child support – Adjustment for s 75(2) factors favouring wife with young children without regular child support

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Hickey and the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT:

Mr Bale-Sutch

RESPONDENT:

Ms Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3800

2007

DATE DELIVERED:

18 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

4, 5 & 6 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SCRIVA

SOLICITOR FOR THE APPLICANT:

TIMOTHY MEPSTEAD

SOLICITOR FOR THE RESPONDENT:

MS MERCADER

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MCCORMACK & CO

Orders

These parenting orders relate to the children, the older son S born … December 1997 and the younger son R born … February 2000.
That all existing parenting orders are discharged save for paragraphs (1) and (2) of the orders made by the Federal Magistrates Court of Australia on 8 March 2007.
That the wife have sole responsibility for making major long-term decisions concerning the physical, emotional and psychological health of children and as to the appointment of a general medical practitioner and dental practitioner for the children.
For the purposes of paragraph (3), the wife shall be solely responsible for the appointment of all health professionals including psychologists and counsellors for the children providing those appointments follow upon a recommendation of the general medical practitioner, the dental practitioner or the children’s school principal as may be relevant in the circumstances.
That notwithstanding that the wife has sole parental responsibility for the matters referred to in paragraph (3), in respect of all such decisions concerning the children, the wife in writing (whether by way of email, communications book or letter), shall:
(a)Advise the husband of the name and address of the health practitioners;
(b)Except in an emergency or in the case of the need for urgent treatment, advise the husband in advance of any initial appointments (as distinct from subsequent appointments) and the purpose of such initial appointments;
(c)Authorise and direct the appointed health practitioners to provide any necessary information to the husband that parents might normally be entitled to receive from time to time including permitting him to attend upon the health practitioners at his own expense at a time other than when the wife is present.
That the husband and the wife each advise the other as soon as practicable by email, text message or in the case of an emergency, by telephone, upon becoming aware of:
(a) any significant injury or illness affecting the children;
(b)any illness requiring the provision of any medicine prescribed by a medical practitioner; and
(c) any hospital attendance by the children.
That in the event of any hospital attendance by the children, the wife authorise any relevant hospital authority that the husband has a right to attend to see the children always subject to the directions of the staff of the hospital to the contrary.
That subject to the conditions set out in paragraph (9) of these orders, the husband and the wife have equal shared parental responsibility relating to the education of the children.
The conditions referred to in paragraph (8) of these orders shall be as follows:
(a)unless otherwise agreed in writing, the children complete their primary education at MA Primary School;
(b)unless the principal of the children’s primary or secondary school determines otherwise, each of the husband and the wife shall be at liberty to communicate directly with the school about all educational and welfare issues relevant to the children as well as attend for all events and occasions at which parents would normally be expected to attend; and
(c)in relation to secondary schooling, the husband and the wife shall consult with each other by email or letter about which school the children will attend and if appropriate, which course the children will undertake.
For the purposes of paragraph (9)(c) of these orders, the husband and the wife shall commence their consultation by 1 January 2010 in respect of the child S and by 1 January 2011 in respect of the child R and if by the first day of the fourth term in 2010 in respect of S and the first day of the fourth term in 2012 in respect of R, no agreement is reached then:
(a)the parties attend Relationships Australia or another similar organisation as may be agreed at their joint and equal expense to discuss their respective proposals with a mediator (and not necessarily at the same appointments); and
(b)if no agreement is reached to the satisfaction of the mediator, the wife shall make the final decision.
If by 1 January 2010 in respect of the child S and by 1 January 2011 in respect of the child R, the husband fails or refuses to indicate a desire to participate in the decisions relating to secondary education in accordance with these orders or refuses or fails to so participate, the wife may make the final decision.
For the avoidance of doubt, paragraph (9) of these orders is intended to leave the right of the husband to attend at the school specifically to see the children or participate in class or sporting activities with the children entirely as a matter for determination by the principal of the children’s school.
That the husband and the wife be at liberty to produce a copy of these orders to any health practitioners and education authorities referred to under these orders.
That the children live with the wife.
Until the completion of the final hearing of the forthcoming criminal law charges against the husband relating to, inter alia, charges of making threats to kill and assault, the husband spend time with the children, subject to the conditions set out in paragraph (16) each alternate Sunday commencing on the first Sunday in March 2009.
For the purposes of paragraph (15), the time spent by the husband with the children shall be as follows:
(a) two hours on the first and second visits from 11.00am to 1.00pm;
(b)four hours on the third and fourth visits from 10.00am to 2.00pm; and
(c)six hours on the fifth and subsequent visits from 10.00am to 4.00pm.
Paragraph 16 of these orders shall apply whether or not the husband continues to live at K.
If the husband does not, or cannot, avail himself of every second Sunday as required by paragraph (15), the four hour visit shall not commence until after two 2 hour visits have occurred and similarly, the 6 hour visit shall not commence until the completion of the 4 hour visits.
Whilst the husband remains living at K, the wife or her nominee shall deliver the children to the husband outside of the K Hotel at the stipulated time and collect the children from outside of the K Hotel at the conclusion of the stipulated period.
If the husband moves to reside at a place near to the wife’s residence, the wife shall deliver the children for the purposes of paragraph (15) to (17) at that address.
At no time is it anticipated for the purposes of paragraphs (15) to (17) of these orders that the wife will be required to travel further than the distance to the K Hotel.
All visits pursuant to paragraph (15) to (17) are conditional upon all of the following events occurring:
(a)the periods of time being supervised by a person approved by the Independent Children’s Lawyer;
(b)the husband by 4.00pm on the Tuesday before the Sunday that the wife is to deliver the children to the husband pursuant to paragraph (15) to (17) of these orders, paying to the wife’s nominated bank account the sum of $50 for such alternate each weekend towards her petrol costs; and
(c)the supervisor contacting the wife by telephone no later than 4.00pm on the Thursday before the Sunday that the wife is to deliver the children to the husband confirming that he or she will be present for the entire allocated time.
That for the avoidance of doubt, in the event that the husband:
(a) is serving a custodial sentence;
(b) cannot provide a supervisor as required by these orders;
(c)fails to make the payment of $50 as required by these orders into the wife’s bank account; or
(d)the supervisor does not telephone the wife as required by these order,
the wife is not obliged to make the children available to the husband.
The petrol cost payment referred to in these orders is fixed in the sum of $50 only for the period of time that the husband is living in the K area. In the event that the husband lives within a radius of 20 kilometres of the wife, the various requirements pursuant to these orders for the husband to pay the wife the petrol money are discharged.
That upon the completion of the final hearing of the forthcoming criminal law charges and any custodial sentence imposed against the husband, and subject to the said supervisor advising the wife in writing that the children do not need supervision, the husband spend time with and communicate with the children as follows:
(a)On each alternate weekend from the conclusion of school on the Friday until 6 pm on the following Sunday with the first of such Fridays being nominated by the said supervisor;
(b)By telephone to a mobile telephone number organised by the wife and made available to the husband such that calls be made to the children by the husband at 7 pm each Wednesday night;
(c)For one week of each of the school term holidays by agreement and in default of agreement, the second week commencing at 10 am on the second Saturday;
(d)For two weeks of the long Summer holidays in each year by agreement and in default of agreement, the two weeks commencing at 4 pm on 30 December;
(e)From 4 pm on 24 December until 4 pm on 25 December in each even-numbered year;
(f)From 4 pm on 25 December until 4 pm on 26 December in each odd-numbered year; and
(g)That any time to be spent by the husband with the children pursuant to paragraphs (15) and (25) hereof is suspended from 5.00pm on the Saturday evening before Mother’s Day until 5.00pm on the Sunday of Mother’s Day.
If the supervisor referred to in paragraph (25) does not advise the wife that the supervision can cease, the time between the husband and the children will continue according to the terms of paragraphs (15) to (17).
If the supervisor referred to in paragraph (25) declines to continue the supervision in the future but is not prepared to certify to the wife that the children do not need the supervision, all time between the husband and the children is suspended until the husband obtains the services of another supervisor and in default of agreement with the wife as to that person, the husband has liberty to apply on short notice for the determination of an appropriate supervisor.
That from the completion of the criminal law proceedings, other than when the children are collected from and returned to school in the future, the husband collect the children from outside the home of the wife at the commencement of the period and the wife or her nominee collect the children from outside the husband’s home at the conclusion of the period.
That by 4 pm on 24 February 2009, the wife advise the husband by text message of the bank account details for the husband to make the regular payments into as required by paragraph (22)(b) and authorising him to provide to the supervisor, the wife’s telephone number.
That each party keep the other advised of any changes to their current residential addresses and mobile telephone numbers.
That during school holiday periods, the time to be spent between the husband and the children provided for in paragraph 25(a) shall be suspended and resume once school recommences as if it had not been suspended by the holidays.
That the Independent Children’s Lawyer be discharged as and from 31 March 2009.
That 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 orders.
That the husband retain, and the wife relinquish any interest in, the real property in the name of the husband at M.
That by 4 pm on 9 March 2009, the wife, at her own expense, withdraw the caveat lodged over M property.
That by 4 pm on 9 March 2009, the husband do all acts and things necessary to place the real property in his name at K on the market for sale at a price of not less than $400,000.00.
That if the K property has not been sold by 1 June 2009, unless the parties otherwise agree upon the future terms and conditions of any proposed sale, each party has liberty to apply to have those terms and conditions fixed by the Court.
That by 10 March 2009, the husband provide to the solicitor for the wife a copy of the instructions to the real estate agent for the said sale.
For the purposes of paragraph (40) of these orders, “the pool of assets” is:
(a) M property with a value of $70,000;
(b)the proceeds of the sale of K property after deduction of the amounts referred to in paragraph (29) (a), (b) and (c) of these orders;
(c)the husband’s superannuation fixed in the total sum of $81,571.
Upon the settlement of the sale of K property, the proceeds be applied as follows:
(a)       first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to set aside in an interest bearing account in the name of the husband, such sum as may be necessary to satisfy any taxation liability as may be assessed in the husband’s name as a result of the sale of K property;
(c)thirdly, to pay back into the husband’s self-managed superannuation fund, the sum of $41,897 such as to make that fund compliant with the relevant superannuation legislative requirements;
(d)       fourthly to pay to the wife 50% of the pool of assets; and
(e)       fifthly, the pay the balance thereafter to the husband.
That the wife retain, and the husband relinquish any interest in, any other property in the name of the wife.
That the husband retain, and the wife relinquish any interest in, any other property in the name of the husband.
That all other applications outstanding between the parties be otherwise dismissed and all be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC3800 OF 2008

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These are proceedings between parties who were married to each other in June 1997 in the Philippines. That marriage was annulled on 18 February 2008. The reasons for the annulment do not matter for the purposes of the background.
The proceedings relate to parenting orders concerning the parties’ older son S born in December 1997 who is therefore aged 11 years and younger son R born in February 2000 who is therefore 9 years of age.
Notwithstanding the parties went through a formal marriage ceremony which has now been annulled, I propose to refer to them as the husband and the wife throughout these reasons. That is for a matter of my convenience only and is not intended in any way as disrespectful to the parties.
In addition to the parenting orders, the husband and wife also have what is a modest financial dispute relating to property arising out of their relationship. The basis upon which I am determining the property dispute comes from the fact that s 71 of the Family Law Act 1975 (Cth) (“the Act”) defines marriage as including a void marriage. That in turn activates the powers of the Court under s 79 of the Act.

The orders sought by the parties

In relation to the parenting matters, the husband sought orders that the children live with him on a week about basis. In response to a question that I asked him, he accepted that with the state of the communications with the wife, that sort of arrangement would be problematic. I find it would be impossible. The husband did not seek any other parenting orders in his written document and I had to press him on a number of occasions to indicate to me what he would seek if he was unsuccessful on the week about arrangement. He told me eventually that he would want each weekend from Friday through to Monday and the bulk of the school holidays.
In his counsel’s final address, the husband sought that the children live with him and spend time just on weekends with the wife. That proposition was unrealistic on any view of the evidence. The husband however put an alternative proposal which would see the children live with the wife and spend some early time supervised at his expense leading to unsupervised but still limited time with him in the foreseeable future.
The wife for her part, sought that the children live with her and that the husband have initially supervised time on a Saturday on the basis that the children were not at all comfortable about spending any time with their father.
In her solicitor’s final address, the wife adopted the position of the Independent Children’s Lawyer. The difficulty I have with that is that on the wife’s evidence and that of her fiancé, I have little confidence that her rhetoric is really what she means; actions speak louder than words.
The Independent Children’s Lawyer reserved his position at the commencement of the hearing but in his counsel’s final address, two areas were covered. The first was parental responsibility and the second was parental time with the two children. Ms Agresta as counsel for the Independent Children’s Lawyer suggested I should put the parties in a position where they had to negotiate about education decisions concerning the children including through mediation but ultimately, if there was no agreement, the wife should make the decision.

Ms Agresta said in respect of the second issue, there were really only three options all of which were problematic. First, I could adjourn the hearing, order supervised time between the husband and the children and then review the case in the light of a report. Secondly, I could start with supervised time which the husband could arrange and then subject to a positive response and report from the supervisor, automatically move to unsupervised time. Thirdly, I could simply fix a limited amount of supervised time and then place the onus on the husband to seek a variation. Ms Agresta said “the least worst” option was the third.
One of the troublesome features of this case is that as a result of the husband overholding the children, his time with them was suspended as a result of the Court making a recovery order and he has not seen them since August 2008.

The husband faces criminal law proceedings

A further complicating factor is that the husband is facing criminal proceedings in relation to which at his request, I granted a s 128 of the Evidence Act 1995 (Cth) (“Evidence Act”) certificate to enable him to give answers to questions that may assist me in determining what was in the best interests of the children. Importantly, the criminal law proceedings relate to making a threat to kill and assault and possibly, a breach of a Victorian intervention order. The husband told me that he is pleading not guilty to the criminal charges and his defence is that the events did not occur and he was not even at the wife’s residence at the time.
In this aspect of the parenting dispute, one of the dilemmas is that the parties’ elder child made a statement to Victoria Police about the events that gave rise to the husband’s criminal charges. I shall deal with that in some detail below but the husband said the police made the child make the statement under duress. In addition, the child told family consultant Ms D and family consultant Mr V that his father had been violent towards his mother specifically in relation to those incidents.
The husband’s position was that although he was not present when those assertions were made, not only were they untrue but that the child did not make the statements. He said that Ms D and Mr V have lied to the Court on the basis of having read reports about the allegations and simply adopted them. Notwithstanding those serious allegations particularly in relation to Mr V, the family consultant was not cross-examined about them. While such allegations if, as here, were found to be without any foundation and should attract the ire of the Court, in this case they are all symptomatic of the husband’s personality which borders on a persecution mentality. Although he was apparently found by psychiatrist Dr E not to have a psychiatric disorder, there is little doubt he has limited patience, is aggressive and is an angry man. Whilst that does not justify his behaviour, it explains why the children are hesitant about their relationship with their father.
The impending criminal proceedings make my task so much more difficult because I cannot be confident about what will happen to the husband but I have the added difficulty of knowing that the husband’s defence will almost inevitably require the older child having to give evidence against the husband. The husband did not deal well with that question in cross-examination by counsel for the Independent Children’s Lawyer. He was given a number of opportunities to indicate whether he was anxious about that position bearing in mind the pressure under which his son would be placed. His first response was that he was not anxious because in 10 years time, he would still be there with his son whilst everyone else would be gone. I have no idea what he was referring to.
Counsel for the Independent Children’s Lawyer then came about the matter in a different way by asking him whether he saw the child giving evidence as a “big deal” and the husband conceded that it was not a good idea but predominantly because it was a breach of the child’s human rights. Asked how he thought the child might feel, he sensibly responded that the child would be scared or afraid. As to whether it would affect the relationship between father and son, he said it would not.
Least it be thought this problem was one-sided, the wife also had no insight into the dilemma about the child giving evidence. Her view was that the child saw what happened and would contentedly tell the truth in court. When asked to consider the impact on the child of having to face his father including at a time when he might be having contact and the consideration of the child feeling responsible for what happened to his father if found guilty, the wife shrugged the problem off and said that the issue was about the child telling the truth. This view is but one example of the wife’s approach of removing the husband from the lives of the children. However, she would have me accept the opposite. I do not accept her position on that issue.

Credit Generally

In this case wherever I have to make a finding, I do so on the balance of probabilities. Often, where each party is observed in a court room and has their evidence tested by cross-examination, a court can sometimes make findings based upon credit. That is, a decision can be made that one person’s evidence is inherently more believable than another’s and where their respective evidence is in conflict, the determination can be made generally on which party is more believable.
In this case, I would not be prepared to make a generalisation about either party being preferred one over the other.
The husband was disruptive in the court room even during evidence of the family consultant who was in part, supportive of the husband’s proposals. The husband stormed out several times and his counsel endeavoured valiantly to point out the folly of his behaviour. He was audibly heard to describe the evidence as “crap”. He was persistent in his disruptive behaviour in commenting that the family consultant had not been prepared to allocate time to observing him and the children. In respect of that issue, he was the master of his own misfortune. He chose not to cooperate. The husband’s evidence that a police officer had applied pressure to ensure that his son made the statement about the incident between the husband and wife in February 2007 was implausible and he did not point to anything to support his contention.
That snapshot of the husband’s evidence shows what little insight he has even if the child is under some manipulated pressure from the wife or the police. However, it is the husband’s responses that were of concern indicating that he has little understanding about the impact on the child.
The husband’s aggressive nature and the behaviour just mentioned, made his evidence something about which I would be cautious. Having regard to his assertions that everyone was wrong or was lying except him, I find that he could not be trusted to give an impartial view about anything. I do not find that I would not accept his evidence unless it was corroborated but rather, I propose to make individual findings based on his specific evidence generally determined according to plausibility.
The wife’s evidence was significantly different but also not generally unequivocally acceptable. I take into account that English is not her natural language. I take into account that care was taken in clarifying questions and answers so that I believe I have understood what she said. I take into account that her affidavit evidence was replete with expressions of opinion rather than statements of fact. In relation to that, I do not criticise her but rather the person responsible for the drafting. Albeit that the affidavit was sworn only days before the commencement of the final hearing, no mention was made by the wife about the fact that she was engaged to be married and was living with her fiancé. She said she was frightened. I reject that. It must also be said that although her financial statement was sworn in October 2008, no reference was made to any liability to her lawyers for legal costs yet at the time of the hearing, she said her liability was about $60,000.
In relation to the issue of the marriage itself and the events that gave rise to the ultimate annulment, I listened closely to the wife’s evidence and read carefully her version of events as detailed in her affidavit. I do not accept her evidence about what she told the husband. I find she will make statements that suit her cause and embellish the situation. I have no hesitation in saying that I have an enormous amount of sympathy for her plight having regard to the nature of her relationship with the husband and his behaviour towards her but I have endeavoured to focus on the best interests of the children. Her evidence was at times unhelpful.

The marriage

At the time the parties met, the husband agreed he had been told by the wife that she had previously been married to Mr J. He said her “attitude” was that her first marriage “had been annulled” and on that basis he went through a form of marriage ceremony with her. The wife’s evidence was that she married the husband “on the presumption” that Mr J was dead, that is, no application had been made for any annulment or declaration about her first marriage had occurred.
In May 2002, when the parties were still living together, the wife made an application in the Philippines for an annulment. In cross-examination, the wife maintained that she had a belief that Mr J was dead when she married the husband. She had married Mr J who was a seaman. He left almost immediately after the marriage and has not been heard of since. The wife said that before marrying Mr Bale-Sutch, she had heard of the sinking of Mr J’s ship and his name being listed amongst those whose lives were lost. Despite that, she applied to the court in the Philippines for an annulment on the ground of “psychological incapacity” of Mr J. As the husband’s counsel put to her, it would have been easier to maintain the line that Mr J was dead because the husband wanted to clear up the issue. The wife said that she had already given birth to their first child at that time and the husband wanted to go to Australia. Thus she said, the approach to the ground of the annulment adopted was the quickest way. However, according to the husband and not challenged by the wife, the court dismissed her application for the annulment.
I do not accept the wife’s evidence on this issue. I find the husband was told that the wife was free to marry him and at that time, it was untrue and it was convenient for the wife to assert it as such.

Parenting issues: The evidence

The evidence presented about parenting issues by both parties was sparse and rarely the subject of challenge by either side. The husband’s evidence was that the wife was controlling, argumentative and bad-tempered throughout the relationship and she subjected he and the children to her bad moods and angry outbursts. He said these outbursts placed the children at risk. He referred to an incident without naming the time or place or date in which the wife was waving a knife around. He referred to her throwing things and smashing windows. He said she often hit both the children as well as him. He said she inappropriately disciplined the children with a stick and if she did not get her own way, she would threaten suicide in front of the children. None of this evidence was challenged by the solicitor for the wife. It is important to note that the husband’s affidavit was filed on 22 December 2008 and the wife’s affidavit was filed on 20 January 2009 and sworn on the same date. I have therefore concluded that the wife had the possession of the material and chose not to dispute it. I will turn to the wife’s evidence shortly in which she made similar vague accusations against the husband. Sadly, the evidence was not tested.
The husband expressed concern about the wife’s capacity to protect the children referring to an incident in which the children were lifted up by a male friend of the wife by their hair causing pain. That allegation was in the context of the wife having inappropriate male companions and exposing the children to sexual activity. That evidence was also unchallenged by the wife.
The husband said that he was worried about the wife’s inability to assist the children with their school work and intellectual development both of which were things about which I find he was passionate although as I shall later set out, somewhat misguided. The husband said that subsequent to separation in 2005 until February 2007, he was seeing the children every second weekend without supervision. He said that as a result of the wife’s February 2007 allegations to which I shall later return, his time was thereafter supervised. That was not accurate. He said the supervision had caused his relationship with the children to go “backwards”. That was as a result of difficulties in arranging for supervision in a timely manner as well as the tyranny of distance. The distance problem arose in part because the husband did not have a driving licence although I find that there is no reason why he could not seek its return later this year.
In addition to the complaint about the wife’s endeavours to prevent him from seeing the children caused by the incident in February 2007, the husband pointed the finger at the wife and blamed her for the actions of the police in pursuing him with warrants for his arrest. Rather than take such an offensive approach, I would have thought it more sensible for the husband to have done what he has now done which is to sort the matter out with the police and face the music. I do not find that the wife’s contact with the police has caused the husband to constantly be on the run nor that she has telephoned the police to have him arrested simply by virtue of court hearings.
The husband’s evidence was also that notwithstanding the orders for his time with the children being suspended in August 2008, he had endeavoured to obtain the services of a professional supervisor to assist in reintroducing his relationship with the children. He blamed the wife’s inflexibility in refusing to cooperate saying that there was no reason for his time to now be supervised and that he had shown that he was able to properly care for the children on regular overnight visits. I reject his evidence in respect of that having regard to the findings I shall make in relation to the nature of his current relationship with the children. That is not to say that the wife was sensible in not endeavouring to endeavour to resume the relationship between the children and the husband particularly having regard to the fact that when the hearing commenced, it was her case that she wanted supervision of the husband’s time albeit at a contact centre. No explanation was given by the wife as to why she rejected the husband’s advances.
The husband’s evidence was that he had now committed himself to moving on with his life and putting the conflict with the wife behind him. Cross-examination of the husband indicated nothing could be further from the truth. I reject his evidence in respect of that and indicate that he still strongly harbours ill will towards the wife and has little respect for her as a person or as a parent.
The husband confidently said that he thought over time he and the wife could move towards equal time parenting of the children but he accepted that the current residence in which he lived made that impracticable. He then set out his intention to sell the property in which he lives and his intention to move to the current vacant land which is closer to where the wife lives so that he could have a greater role in the lives of the children. I make it abundantly clear in these reasons that I reject the geographical distance between the parties as the impediment for any shared care arrangement. I shall return to that issue below.
In his evidence in chief, the husband added that he did a mathematics and literary assessment with the children through a program that he obtained from the post office. He was very critical of the wife’s capacity to assist the children. How all of his proposals would work was left to the Independent Children’s Lawyer to probe in cross-examination. The husband has not had the opportunity to be the primary carer of the children for any length of time since separation. I reject the fact that his relationship with the children has deteriorated since February 2007. I find that subsequent to separation, the children have been in a constant turmoil watching the conflictual relationship between their parents.
I have presumed that the husband has the capacity to provide for the physical needs of the children because the wife did not challenge him about any of that.
The husband was emphatic that he had not been violent to the wife. Quite the contrary as I have pointed out, he asserted that it was the wife who had been violent towards him and the children. No serious issues other than the one in February 2007 were really put in issue between the parties.

The incident in February 2007

The wife said on 26 February 2007, the husband attended her home, pulled her into the boys’ bedroom and kept hitting her. She said he pulled her down to the bed and covered her nose and mouth and said he would kill her. She said she got away from him and called to the children to get help which they did. No evidence was given as to what brought the fracas to an end or how the husband left. The husband denied any such incident occurred. On that same day, the child S made a statement to a police officer. The statement was tendered in evidence. S corroborated his mother’s story in evidence before me. S was then nine years of age. It must be said that the wife seems to have been present during the taking of the statement but there is no suggestion that S was otherwise influenced by her. The husband said that the police officer with whom he had had a previous disagreement, made S make the statement under duress. One wonders why S would make a statement at all that day if there was not some altercation between his mother and father. No other hypothesis was proffered by the husband. Eighteen months later, the family consultant interviewed S. S was said to have initiated comments about the incident. S not only again corroborated the wife’s evidence but was insistent that he was being truthful. The husband said that the family consultant made the statement up from things he had read.
I am determining this issue on the balance of probabilities not according to the standards required of a court hearing a criminal prosecution. Having said, I am very conscious of the provisions of s 142(2) of the Evidence Act. This is a serious allegation in which the evidence from each party is diametrically contradicted by the other. Notwithstanding my several reservations about the credit of each party as early expressed, I am satisfied that the assault did occur as described by the wife and I so find.

The husband overholds the children in 2008

I shall turn to the evidence of the family consultant in a moment but I find that the children are apprehensive about the husband. That is caused not so much by the assault in February 2007 but by an incident that occurred in August 2008. There, contrary to orders, the husband overheld the children and took them to Sydney. No explanation about taking them on a holiday proffered by the husband could be justified. His unilateral action justified a recovery order being made by the Court and the suspension of his time under the existing orders. How that particular incident explains the apprehension of the children is something about which I have no clear evidence.

The various hearings

The reason why I reject the February 2007 incident as the catalyst for the children’s current apprehension is that between February 2007 and August 2008, the husband continued to have a relationship with the children. The police action to bring the February 2007 incident to a head seems to have been stymied by the husband avoiding arrest but it also escapes me how the ongoing contact continued. It is clear on the record that there was a court hearing on 8 March 2007 in the Federal Magistrates Court of Australia before Riley FM at which consent orders were made for the husband to see the children each alternate weekend. Contravention proceedings also occurred on 14 May 2007 before Bennett J. The wife and both parties’ respective lawyers appeared at that hearing and the matter was adjourned because of the absence of the husband. No application appears to have been made to suspend the existing orders.

On 25 May 2007, before Senior Registrar FitzGibbon, it was the husband who filed a Notice of Risk relating to the children against the wife. Again no application to suspend the Federal Magistrates Court orders seems to have been made.
In November 2007, a hearing occurred before the Senior Registrar and the parties consented to orders under which the husband was to spend time with the children at a contact centre but then, supervision by the husband’s sister was to take place subject to him paying some petrol money to the wife. The wife ultimately complained including as late as her solicitor’s final address before me, that such payments were not made and it follows, would not be made by the husband in future.
The important point however was that contact was to occur. In May 2008, the Senior Registrar altered the earlier orders but again gave the husband time with the children and this time without supervision.
These events are important because the wife and the family consultant both seem to attribute the current apprehension of the children as something to do with the February 2007 incident. It is not a finding that I am prepared to make if that is in fact the wife’s case. No other more recent evidence of misconduct of a similar nature by the husband was led by the wife. It may be that it was the overholding in August that gave rise to the current state of the relationship between the father and the children. I found the wife’s evidence difficult to follow and of little assistance.
I found the husband’s evidence vague and not addressing any of the matters that I am required to consider in s 60CC of the Act. It is therefore not much wonder that the Independent Children’s Lawyer said that this was a very difficult case to sort out. In a careful cross-examination, Ms Agresta probed issues about the views of the husband concerning inter-parental relationships, respect for one another and views about the wife’s capacity to provide for the children. The husband was not responsive and generally did not give me any evidence to assist. His mantra was that he was the children’s parent, the courts had prevented him from seeing them and that the children were therefore being denied their basic human rights. I reject all of that.

Family violence generally and family violence orders

The wife’s evidence was that throughout the marriage, the husband was controlling and violent. Apart from the incidents on 26 February 2007 and 13 January 2002, no details about this general allegation were provided.
The wife referred to the fact that on 10 November 2006, the Ringwood Magistrates Court granted an intervention order for her protection and that of the children which lasted until November 2008 at which time the order was extended until November 2010 save that it now only relates to the wife.
Importantly, the wife said that she was in constant fear of the husband because he breached court orders prohibiting him from inflicting domestic violence on her. However, apart from the two incidents to which I have just referred, no evidence of any specific nature was led.
The wife said that on 13 January 2002, the husband dragged her by the neck trying to strangle her as a result of which she had to go to hospital for treatment. This evidence was not challenged by the husband but I do note that it occurred prior to separation. No evidence of the hospitalisation was led.
The wife said that the children were badly traumatised by the incident in February 2007 and in constant fear when they saw the husband. However having regard to what I have just set out chronologically, that evidence must be rejected as the children had regular time with the husband after February 2007.

Counselling for the children

The wife referred to the fact that subsequent to the February 2007 incident, the children were having bad nightmares and feared for their safety saying that their father would come in the middle of the night. This gave rise to the children attending several counselling sessions with a counsellor. That counsellor was Ms I. Ms I was not called to give evidence. The wife had some sort of report but it was disputed by the husband as evidence and had not been provided to the Independent Children’s Lawyer. In any event, it came out in cross-examination by counsel for the husband that the children had not seen Ms I since the end of 2007. The wife said she proposed to take the children back as soon as she could get an appointment which was apparently costly. Counselling might have been important as a result of the overholding by the husband in August 2008 or the nightmares that followed but it has not occurred.
I do not wish to be seen in any way to be minimising the seriousness of family violence but it is important that a court have access to properly drawn material which can not only be tested but also assist the court in determining the issues in s 60CC(3). It behoves legal practitioners preparing affidavit material to ensure that they lead evidence and not just a jumble of emotional facts that their clients would no doubt think is relevant. Sadly, that approach was not adopted by the wife. Division 12A of the Act has reduced the importance of the strict rules of evidence and heightened the awareness of the need to get to the bottom of what will assist the court in determining which of the parties’ proposals provides the best outcome for the children. The reduction of the impact of the evidentiary rules has not taken away the focus of ss 55 and 56 of the Evidence Act relating to relevance.
The wife’s evidence went on to say that she had been the primary carer of the children all of their lives and that the husband did not really care about them. I reject the latter concept. It does however highlight my concern about the wife’s view of the husband as a parent of the children and in particular, her prospects of promoting any relationship between father and sons.
The wife’s evidence was also that the husband had bashed her badly in front of the children on several occasions as a result of which, the children had since woken her in the middle of the night on an unspecified number of occasions to see that she was alright. No details were given by the wife about any of this. There was one piece of evidence given by Mr TE to whom I shall return, about a very recent incident but the wife did not give any details about it in her evidence. I do not doubt that the children have been traumatised by the conflict between their parents and that they have come into the bedroom disturbing the wife. There is a conflict in the evidence between the wife and her new partner in which the partner has indicated that the children expressed concern for their own safety whereas the wife put her case on the basis that the concern of the children was about her. Just what was behind all of this may very well have been resolved by calling the counsellor.
The wife also asserted that the husband lacked interest in the children’s education and deliberating prevented them from attending school. However, the wife acknowledged that during the marriage, it was the husband who made the decisions about the children’s education. He may have imposed them upon the wife but I could not find that he did not care. Quite the contrary, he is emphatic about not only his criticism of the school system but also its teachers. He is confrontational and no doubt difficult to deal with. I find that his own subjective views about what is the appropriate standard for his children is what causes this dilemma. He was at pains to point out what he thought of his children’s academic progress and hence by obvious inference, the wife’s lack of diligence or capacity in ensuring that they achieved the right standard. Sadly for the husband, the schooling reports which were not produced by the wife until the hearing and certainly not provided to the husband, showed the children progressing satisfactorily. The wife saw no reason to provide the 2008 reports to the husband as he could have obtained them himself. This highlights the wife’s view about the husband’s role in the children’s lives.
Rather than sending the reports to the husband with a glowing with pride pointing out their good progress, the wife decided that the husband could find out himself. It must be remembered that he had not seen the children or spoken to them since August 2008. The wife does little to promote the relationship between the husband and the children notwithstanding her statements to the contrary.
The wife also said that the husband did not really care about the children’s feelings nor their welfare. She gave an example of that in November 2006 when the husband attended the school assembly and harassed the teachers and called her “stupid” in front of all of the children in the school embarrassing the two boys. That evidence was not challenged by the husband. I do not doubt it happened having regard to the complete lack of respect for the wife that the husband has. The husband also has no trust in her judgment as a parent. That lack of respect will eat away at any relationship between the husband and the children if it continues. The family consultant warned in evidence that the children would ultimately lose their self-esteem, withdraw and reject a relationship with the husband if that sort of behaviour continued. The children may also react badly with the wife and become difficult to manage. Both parents have to take responsibility for that. I accept the family consultant’s evidence but sadly, it appears that the parties do not.
The husband’s view is that as soon as the money in the property settlement is paid to the wife, she will be more pliable in relation to his relationship with the children. There is no evidence that I could find that that is likely to occur.

Wife wants opportunity to travel to Philippines

An issue in dispute related to the wife travelling to the Philippines. It was opposed by the husband. He however said that he had no objections to the children going provided it was under conditions. The Philippines is not a country which is a signatory to the Hague Convention. Apart from her new relationship, the wife has nothing in Australia to keep her here. There are no immediate plans to go to the Philippines. It is more appropriate for that issue to be determined if and when it arises.

The wife’s fiancé

I heard the evidence of Mr TE. He was mentioned by the wife after the hearing had commenced. Mr TE presented a handwritten “proof” of evidence which told me very little. It was left to Ms Agresta to probe for answers that should have been provided by the wife.
Mr TE is 43 years of age, met the wife in February 2008, commenced “going out” with her in August 2008, had her move into his house in December 2008 and is now engaged to be married to her. Mr TE receives a mention in the family consultant’s report which was done in September. At that time, the wife said to Mr V that there was a man in her life but she certainly did not convey that there was anything serious in the relationship. Perhaps that is understandable having regard to the fact that the parties were only “just going out” but that does not justify the absence of the evidence in the affidavit sworn in January 2009.
Mr Te has not been married previously nor had children. Perhaps unsurprisingly, he expressed strong love for the wife and the children and when asked about whether this was all part of a “honeymoon” phase in his life, he said that that was not the case because that was already over. He said they were just getting on with living. When I asked the wife’s solicitor in her final address about the s 75(2) financial factors, she responded by saying that I should take into account that the relationship with Mr TE was new and as such, no-one could foretell what was going to happen. Sadly, the absence of a lot of information made my task more difficult.
Mr TE saw no difficulty in the children calling him “Daddy”. He could not give me any precise details about when the children had canvassed with him their fears of their father. There were vague statements about it occurring during the night when R came into the bedroom very recently and another occasion when he and the children were watching television.
Mr TE presented as a cheerful man who has taken on significant responsibilities. He talked seriously of wanting to help and promote the children’s education and for the children to have a good relationship with their father. He pointed to the fact that he had come from a difficult relationship in his own childhood. He saw his role as a good friend who could give guidance but not discipline which was the wife’s responsibility.
Mr TE told me that the children had told him that they did not want to see their father but he was unable to offer any explanation as to why that might be other than that they were scared and the trust between father and children had to be rebuilt.
The sentiments of Mr TE were well-meaning but these children have been subjected to a dysfunctional family life and exposed to considerable conflict. Mr TE did not seem troubled about the child S giving evidence in the criminal court on the basis that he would be resilient.
Because the wife did not introduce Mr TE until the last minute, he could obviously not be interviewed by the family consultant. Without his background being set out in affidavit form well before the hearing, the only evidence about his personal life and his views was what he told me in cross-examination by Ms Agresta.
Ultimately the responsibility for the absence of information rests with the wife but her legal practitioner should have made the inquiries in the time that the affidavit was being prepared. That document was prepared only just before the hearing began.
I accept Mr TE as a truthful witness but sadly his evidence shed very little light on the future for the children. He seemed very supportive of the wife and if that meant her desire was to make less important the relationship between the husband and the children, he would probably support her.
To his credit, Mr TE told me at the end of his evidence that he had actually met the husband at the court and that it was the husband who had in a civilised fashion, shaken his hand. He said he would be prepared to assist in ensuring the children continued to have a relationship with their father.
Mr TE is very new on the scene and I have no doubt he has a good relationship with the two boys. It is not appropriate however that he be substituted as their father nor that he encourage the children to call him “Daddy” by not dissuading them from doing so. Having said that, I accept he has little experience in parenting and is in a new relationship.

the family consultant’s evidence

Mr V is a family consultant attached to the Family Court of Australia. No-one challenged his expertise. He prepared a report pursuant to my order made on 18 August 2008. The husband chose not to participate in a personal interview at which the relationship of father and children could have been examined.
The family consultant was cross-examined by counsel for the husband about whether he could have made further provision for such an interview with the husband. It was not practicable but in any event, having regard to the husband’s attitude to the report, the proceedings and the family consultant himself, I doubt very much whether anything would have been any different.
The husband’s counsel also questioned the family consultant about whether he had been influenced by other report writers whose material was on the file and which he had read. Having heard the family consultant’s evidence, I have no hesitation in finding him to be an objective, professional and balanced witness. His evidence was extremely helpful. He was clearly alerted to the issues by the other report writers but brought to the case his own objective and expert opinion.
The family consultant first set out why the husband had not attended personally. He described the husband telling him that there were “medical” reasons, cost and inconvenience of travelling and also the likelihood that he would be arrested on outstanding warrants relating to the February 2007 incident. The family consultant’s perception of the husband was that he had a limited capacity for employment due to a longstanding medical complaint. He described the husband as an assertive man with very clear and forthright views on a range of matters who at times presented as oppositional and argumentative but never aggressive or threatening.
The family consultant described the wife as a person working approximately three days a week in a nursing home near her home. He described her as an articulate woman who was able to clearly express her views. The family consultant reported that the wife was very critical of the husband as a parent. She described him to the family consultant as “not loving, very selfish”. That was consistent with the evidence that she gave to me. When asked about whether she could identify anything positive about the husband, she said to the family consultant she was unsure. That also was consistent with the tenor of the evidence before me. The wife told the family consultant that the husband did not really care about the children and that his relationship with them was primarily a game.
As to the wife’s view about the husband’s future relationship with the children, she said that the husband had had his chances, exposed the children to violence towards her and adopted a blaming and critical approach with the children. She then said that the husband would not adhere to court orders.
In his assessment of the parties, the family consultant said that they could not communicate and had resorted to conflict. The family consultant said that neither was able to identify any way in which they could communicate. Sadly, that is consistent with the evidence before me when the parties had an opportunity to explain how they would resolve the impasse. Neither was able to articulate any particular method that would be successful in them negotiating any issue associated with the children.
In respect of shared parental responsibility, with the lack of trust and the resorting to conflict, the family consultant said any such arrangement would be very difficult. Again, I agree.
Importantly, the family consultant noted that the husband did not present as being amenable to self-reflection and change. This was a theme that he reiterated whilst giving evidence and about which the husband audibly commented in the courtroom that it was “crap” and that he had no intention of making any changes about himself. The family consultant described this inability to change as unfortunate for the relationship between the husband and the children. I agree.
The family consultant interviewed the children. Of S, the family consultant formed the view that the child primarily reflected his own emotional and cognitive processing which was not a product of influence by any other person. He did not find the child to be fabricating or exaggerating information. He went on to say about S that the child’s description of life with his father was less positive than with his mother and there was nothing positive and attractive about going to see his father. It was S who initiated the discussion with the family consultant about family violence and in particular, the incident that occurred on 26 February 2007. Notwithstanding the husband’s assertion that that conversation never occurred, I find that it did.
Importantly, S was able to identify some positive thoughts that he had about his father. This strange response clearly indicates that S has not closed the door on his father and is just uncertain about the reaction of his father. This lack of trust is something that needs to be overcome. It is the responsibility of the husband to ensure that the child regains his confidence and trust. That has a significant impact upon what sort of orders I implement.

It is a sad indictment on his parents when an 11 year old child considers that it would be “OK” to see his father providing his father was not only nice to him but also not conflictual with his mother. Whilst the husband seems to have rejected as truthful those statements being made at all to Mr V, I have no hesitation in accepting that they were. Those statements are also a very sensible basis for me to work upon in setting up an opportunity for the husband to re-establish his relationship with both children.
The family consultant interviewed R. R is much younger than S but he was also found to be truthful and not influenced by any other source.
R told the family consultant that he wanted to live with his mother and that there was really nothing positive about spending time with his father. R too referred to the conflict between his mother and his father. I have little doubt that he has witnessed the conflict. As for contact with his father, R alluded to the fact that he would be worried about going with his father because he would not know how long he would be with him. In my view, that is a clear reference to what occurred in August 2008.
The overall assessment by the family consultant of the children was that the wife had done little to promote a positive relationship between father and children. The children were primarily attached to their mother and spoke of her as the person responsible for their nurturing, their emotional development and the provision of their physical needs. It has been a long time since the parties separated and the husband’s role in the lives of the children has been limited. I do not have any evidence that the husband could provide the same sort of relationship as the wife can.
The family consultant detected a view in the case of S believing that his father does not like him and favours his brother. I do not find that as a basis to distinguish between the children but the husband will have to be conscious of the fact that he will lose touch with S if that perception is a reality.
R on the other hand was, to use the family consultant’s expression, “less averse” to spending time with the husband than was his brother S. Sadly however, the negative connation is obvious. The husband has a long way to go to re-establish the trust of his children.
The children have clearly detected according to the family consultant that their father will not adhere to court orders. He now has a history of failing to comply not only in respect of the overholding in August 2008 but also in failing to provide the necessary money required under orders for the assistance of the wife in terms of petrol. In addition, there is a significant dispute between the parties which I cannot resolve on the evidence about what financial support has been provided to the children. The husband’s position in relation to that was that regardless of the past, he is now not earning money to the extent that he does not have a child support liability. That is avoiding the issue having regard to the fact that on the husband’s own evidence, he was paying child support up until 2006 but in more recent years, has been earning significant income and not paid anything. I am obliged to take those matters into account when I turn to the specific 60CC factors.
Ultimately, the family consultant reluctantly recommended that the husband’s time with the children be supervised. There is no question that supervision of that nature creates an artificial environment for any relationship. To consider the protection of the children by a reintroduction at a contact centre will not work in this case for two reasons. The first is that there is no possibility of the husband getting to a centre nearby. The second reason is that the personality of the husband is likely to clash with any supervisor making the reintroduction with the children fraught with difficulty having regard to the fact that the children themselves are apprehensive about the way their father will behave. Whilst the husband will protest that everyone else has got it wrong other than him, I have no hesitation in making a finding that the view of the family consultant and the Independent Children’s Lawyer is right. The most logical way to resolve the reintroduction problem is by having the contact in the husband’s own home but under very strict supervision conditions. I stay strict because of the fact that the children are still to face the prospect that their father is to appear in court and they or one of them may be giving evidence. In addition, they are currently apprehensive about simply meeting him. The reintroduction therefore needs to be for a limited period of time but in a familiar environment for the children and under the close scrutiny of someone who understands the responsibilities of protecting the children and not simply being a puppet of the husband.
The family consultant set out in his evidence that the purpose of this initial supervision was to enable the children to regain their confidence with their father, facilitate an improvement of the children’s relationship with their father, to monitor the husband’s reactions and in particular, to protect the children from any criticism by the husband because of what they had said about him. However, it is also fundamental that the husband indicate whether he is prepared to modify his behaviours. All of the evidence indicates that he cannot and on his own statement, will not. However, if it appears that the children are traumatised by the orders that I propose to make, a court would have to seriously contemplate discharging the orders and the contact between father and children would come to an end. The evidence to support such a dramatic conclusion to the relationship between husband and children would have to be a lot better than that which was presented to me.
It goes without saying therefore that I accept the evidence of the family consultant.
Section 60B(1) says:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Each party wishes to have as they see it, a meaningful involvement in the lives of the children. That involvement must however, be consistent with the best interests of the children. Based on the findings above, it would not be in their best interests for the children to live with the husband nor for them to live with him and the wife on a week-about basis.
Similarly, for the wife’s position to be implemented under which an undefined and indefinite supervision of the relationship between the husband and children was to occur, would not be in their best interest.
I find it is necessary to make orders to protect the children from the harm of being exposed to family violence. It is also necessary to make orders for the husband’s time to be supervised until:
(a)his relationship with the children is re-established; and
(b)the criminal law proceedings are no longer a potential stressor for the children.
I find that both children need the involvement of their parents in respect of their education. I have concerns about the wife’s capacity to take on that daily responsibility alone notwithstanding her involvement now with Mr TE.
I find it is necessary to make orders to ensure the wife meets her responsibilities to facilitate the father and child relationship but also to ensure that the husband understands that he cannot manipulate the children to any extent that would harm their relationship with their mother.

The legal issues about parenting

Section 60B(2) says:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Having regard to the findings I have made, I have contemplated each of those objects. The orders I propose will enable some of those objects to be met. On the current state of the evidence and the state of the parties’ relationship, it would be impossible to expect that the parties would agree about future parenting. My orders will endeavour to redress that problem.
Section 60CA says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in the best interests of a child, the Court is required to consider the matters set out in s 60CC.
The only way the children will have a meaningful relationship with both parents is if there are constraints on the parents coming into contact with one another whilst the children are present. Each parent must adopt a more positive approach about the other’s parenting skills as well or the outcomes suggested by the family consultant will follow.
I have set out my findings in relation to family violence in this case. I have taken those matters into account in relation to the type and nature of the orders I intend to make and specifically, the orders relating to parental responsibility.
In this case, the additional considerations in s 60CC are no less easy to apply than the primary considerations.
I find the children have expressed a view about their father which is well-founded. It is a view based on a good understanding of what has happened in their lives. Yet, the evidence also indicates that they still wish to have a relationship with him other than that which has happened in the past. I propose to give significant weight to the views of the children.
I also find that the children have a strong attachment to their mother and an ambivalence about their father. I do not have any clear understanding about the relationship of the boys and Mr TE as it is too early yet to tell.
I find that neither party has the willingness to actively participate in or encourage, the relationship between the children and the other parent. In my view, each would be content for the other parent not to be involved in the children’s lives.
I find that the children have not been distressed by the absence from their lives of their father. That is a sad reflection of his understanding of parental responsibility. Conversely, the children were quite distressed by the recent absence of their mother when their father unilaterally overheld them. In part, this is the reason I propose to give the husband an opportunity on limited terms to redress that dilemma for the children.
I find there is a significant travelling problem in this case. The husband suggested that Southern Cross station was an appropriate place because there were lots of video cameras to watch the changeover. That clearly misses the point. The travelling involved by public transport whilst the husband is living at K, in north-eastern Victoria, without a licence, contributes to the problem. I propose to endeavour to resolve that problem by making orders that the wife contribute to the travelling but that the husband also contribute financially towards that petrol cost.
I find that each parent has the capacity to provide for the physical needs of the children.
I find that each parent has not been responsible about parenthood for the reasons I have outlined. In so finding, I say that the husband must accept most of the responsibility for that having regard to his inability to curb his anger and his expressions of frustration. He would do well to concentrate on being a loving and caring parent rather than an angry dissatisfied one. The wife has also to accept responsibility for the fears that the children currently have because she has done little to encourage and support the children to have a relationship with their father.
I have made strong findings about family violence. As I have said, much of the focus was on the incident on 26 February 2007. However each party made general allegations about family violence against the other right throughout their relationship. I accept that the relationship was one of constant conflict. Sadly, the children witnessed all of that.
I also note that there is a family violence order in this case. That speaks volumes for the need to keep the husband away from the wife.
Although the Independent Children’s Lawyer suggested as an option the possibility of a court review of the progress of any resumed relationship between the husband and the children, I find it would be preferable to make orders that reduce the opportunity for further litigation. If the husband cannot understand the advice given by the family consultant, there will undoubtedly be further litigation. In my view however, these children will soon learn whether their parents can be civilized and child-focused. If they cannot change their ways, there is little more that the Court can do but remove the children from the conflict. Final orders are therefore a necessity.
In the orders I propose, I have taken into account that the husband had at various times not participated in the lives of the children properly notwithstanding he demanded to be a part of the decision-making processes for them. His belligerent attitude inevitably meant that there was no meaningful communication between husband and wife.
The wife however has made no serious attempt to resolve the problem since August 2008 by rejecting any form of reintroduction. She simply blamed the husband. She did little to promote the husband in the lives of the children for the reasons I have earlier mentioned.
I am also very critical of the husband for his lack of financial support for the children at a time when he clearly could have provided for them. His current financial situation causes difficulty but he will now have access to money which could be used for education, clothing and spending time with the children in a positive way.
In my view, it is in the best interests of the children that they live with their mother, have limited and supervised time with their father initially and then that be followed up with a build-up period over some time.
Endeavouring to fix a regime for these children has been extremely difficult. The husband remains living at K but that is a property that will be sold. How long it take to sell and how long the husband remains there is unknown. To compound matters, the husband not having a motor car driver’s licence, has meant he has no capacity to readily get to where the wife lives. The distance between the wife’s home and K is 154 kilometres or thereabouts but it is accessible through mountainous bush country which on any view will take over two hours and at considerable petrol cost having regard to the nature of the terrain. The reintroduction process, in my view, requires a supervisor not only to enable the children to be comfortable but also to ensure that the husband does not raise inappropriate things such as the forthcoming criminal proceedings or anything equivalent to denigration of the wife. I have been told that a municipal council has offered a supervisor on a paid basis and that person comes from the Mansfield area which is again quite some distance north of K. To require that person to come all of the way to the wife’s premises seems to me to be unrealistic. More likely than not, the relationship would never get off the ground. Notwithstanding my reservations about the attitude of the wife, she has indicated, as has her partner, a willingness to travel providing she is appropriately compensated. K is a very small town with little or no activity. That must mean that the wife will be required to sit around for a considerable period as travelling back over that arduous journey would be pointless. With the current price of petrol, travelling over 300 kilometres in one day is certainly going to cost the wife at least one tank full of petrol. As the wife is being put to that inconvenience, I see no reason why the husband should not compensate her as it is his desire that the wife travel in any event. It must be remembered that the husband’s position was that he wanted the wife to travel from the Yarra Ranges area to the central business district of Melbourne at the central railway station. That too is a significant amount of travelling.
I am also conscious of the fact that for the husband to spend any time with the children and for them to enjoy any period of time means that at least at K, he has some activities for them. He must be conscious of the fact that they have travelled for over two hours to get there and will face that same journey on the return trip. In the winter months, the trip is no doubt arduous.
All of those problems of course can be overcome by the parties reaching agreement about an alternative but I see little prospect on the horizon of that happening.
As I propose to order that the supervisor not only be vetted by the Independent Children’s Lawyer but also be involved for quite some time, having regard to the distance involved, it is only appropriate that the supervisor contact the wife some days prior to the commencement of the visit to ensure that he or she will be present. I propose to make orders that if he or she is not prepared to be there or unable to be there at K, the wife will not be obliged to travel the arduous distance involved.
For the sake of completeness, I see no reason why the wife should not have the company of her partner or some other person as she may so desire but I do not think it is appropriate for the wife to attend at the K home and I have therefore chosen the K Hotel as the appropriate handover point. If any misconduct of a denigratory or violent nature occurs at that point, I make it clear to any person reading these reasons for judgment that I would not be at all perturbed about these orders being suspended if the parties make no conscious effort to make the orders I propose work.
I must also factor in the prospect that the husband will move much closer to the wife than K. In his evidence, he said that he had proposed to move closer to the school where the children attend. Employment no longer seems to be a significant factor in the husband’s life. On that basis, I would still propose that the wife travel at least until the criminal proceedings are concluded and that unless there is agreement between the husband and the wife in writing to the contrary, it continue to be supervised until the conclusion of the criminal law proceedings. However, if the wife is then only required to travel up to 20 kilometres, I propose that she do that amount of travelling at her own expense on the basis that she to will have some money out of the property settlement.
In the event that none of these handover arrangements are appropriate because the parties move to some alternate location within the next 18 months, I see no choice but for the parties to make an application back to the Court to vary these arrangements.

There comes a point in time where the Court can do more to endeavour to mould the lives of the parties and protect the children. If the husband does not get his motor car driver’s licence when he is able to do so, a court should have very little sympathy for him. He is the one who wants to facilitate and develop a relationship with the children and the onus is on him to make some effort.
I anticipate that the criminal law proceedings will take some time to go through the state system. I have already set out my reasons why the time between the husband and the children needs to be supervised until then. If by chance the husband is sentenced to a term of imprisonment which I must contemplate having regard to the serious nature of the charged alleged, I do not propose that the children have any time with him on a one to one basis. It goes without saying that if he is sentenced to imprisonment, it will be because the Court considers what he has done to be extremely serious. To a very large degree, I am anticipating that the parties will continue to use the child S for the purposes of the criminal law hearing. In those circumstances, it would not be appropriate for the children to visit the husband whilst he was undergoing any such custodial sentence.
On the other hand, once the criminal law proceedings are concluded and the husband is free to go about his business, I anticipate that sufficient time will have passed for the reintroduction phase to have been completed. However I might be wrong about that if the husband does not put some effort into organising the supervisor and making the appropriate compensatory payments to both the supervisor and the wife for her travel. If the husband does carry out all of those things, I would expect that the children should be much more comfortable with him and I see no reason then why some normal sort of a relationship should not be occurring between the husband and the children. I propose therefore to put into place orders that give the children an opportunity to spend quality time with the husband but it will only be without supervision if the supervisor indicates to the wife that she has no concerns about his conduct such that the children could continue the relationship unsupervised. If the supervisor refuses to give that assurance, all time between the husband and the children will continue to be supervised until a court orders otherwise.
In respect of the last concept, I have given some considerable thought to whether or not I am abdicating a court responsibility to a third party. Part VII of the Act enables a court to make such orders as are in the best interests of the children and to tailor them around the constantly changing lives of the children. Rather than have the children dragged through further litigation, it seems to me that one solution might be for the supervisor to provide the comfort for the wife that supervision is no longer needed.
Accordingly, I propose to set out the rather complicated orders to try and cover all possible contingencies.

Parental responsiblity

Section 61DA says:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
Importantly, both parties looked at the question of equal shared parental responsibility in a different way. The husband sought equal shared parental responsibility and the wife sought sole parental responsibility. When questioned about why it would be sensible to make an order when on any view of the evidence, the parties have no form of communication at all, the husband said that all of those matters would die down once the wife got the money from the property settlement which was what she was really after so that she could send her money back to the Philippines. Sadly, I reject that as having any foundation but again, it shows the husband’s little insight into the necessary relationship between two parents if they are to co-parent children of the ages of these.
In this case, I find that the presumption referred to above has been rebutted because:
(a)there has been family violence specifically by the husband but also contributed to by the wife; and
(b)it would not be in the best interests of the children for their parents to have equal shared parental responsibility for all of the reasons I have outlined.

I do however propose to ensure that the children have some opportunity to have both their parents make decisions about their futures. I shall set out the orders that I propose giving the parties an opportunity in a civilised way to participate in the decision-making process but ultimately, if the mediation process fails, the wife will make that decision.
If it becomes apparent that the wife is simply going through the motions of the mediation to enable her to make the end decision, there is little a court can do about that. The Independent Children’s Lawyer suggested the process and I cannot think of any alternative solution. Whilst the husband may feel that the wife has the “whip hand” by that process, ultimately I am obliged to make a decision in the best interests of the children. The children will need decisions made about their future and as such, I accept that it is the wife who is going to have the greater burden of the daily activities including in relation to education. If that is the case, it will ultimately have to be the wife who makes the decisions if the mediation process fails.

The property dispute

The property dispute between the parties revolved around the parties’ respective contributions and their respective futures. In terms of their respective applications, the wife sought a sale of both real properties and a division as to 60 per cent to her and 40 per cent to the husband whilst the husband sought a sale of the home property with a division of 60 per cent to him and 40 per cent to the wife but out of his share, he offered to pay to the wife the full value of the second real property which is a block of vacant land so that he could use it to build a house on. In real terms, the dollar difference between the parties was modest having regard to the costs that they were incurring in relation to the conduct of the proceedings. In my view, neither party approached the matter sensibly.
Although the parties’ marriage was annulled by the Court, there was no argument about jurisdiction to determine a property division between the husband and the wife. That comes about as a result of s 71 of the Act which reads:
In this Part:
"marriage" includes a void marriage.
"re-marriage" , in relation to a person who was a party to a purported marriage that is void, means marriage.
In turn, that enlivens the provisions of s 79 of the Act. Those provisions require a court not to make an order unless it is just and equitable to do so. The court is obliged to contemplate the various component parts of s 79 which include consideration of the financial and non-financial contributions towards the acquisition, conservation or improvement of any property of the parties. In addition, the court must take into account the contribution made by a party to the welfare of the family, the effect of the proposed orders on the earning capacity of the parties, the various component parts of s 75(2) of the Act and any child support provided or to be provided for a child of the marriage. Because of s 71, that last provision must include a child of a void marriage.
Counsel for the husband raised what I described as a novel point. He said that having regard to the fact that the marriage was void, these parties should be treated in the exercise of discretion, as if they had lived in a de facto relationship. He pointed to the fact that had they not gone through a formal marriage ceremony, under state law in Victoria, they would not have had the benefit of the provisions of s 75(2) of the Act.
Counsel pointed to a number of authorities of this Court but none has addressed the issue of whether parties such as these should be treated differently having regard to the void marriage.
Counsel argued that I should reflect society values in the exercise of my discretion. He said that society would want me to treat the parties differently to a married couple on the basis that people who do not marry but live in a de facto relationship understand the distinction and accept the benefits and detriments that come with that status. There are a number of flaws in the argument. The first is that parliament recently passed legislation to make the distinction between a marriage relationship and a non-marriage relationship for financial purposes, irrelevant. As I pointed out to counsel, one of the best reflections of society’s values is the way in which parliament passes laws on the basis that the community demands that parliament looks after its citizens. That law becomes operative in Australia on 1 March 2009. Counsel argued that I should however treat the parties as the law stands now but having regard to the fact that I am obliged to exercise a discretionary judgment, I must look at the way in which the community generally perceives these relationships. Accordingly, parliament has spoken for the people. A second flaw in the logic is that the distinction between the various states gave rise to the intervention of parliament as there were various laws relating to non-marriage relationships all of which were hard to justify simply on state boundary differences. Those various de facto relationships excluded same sex couples. Parliament in reflecting society’s desires, has included all parties in the new legislation. Some states had a concept similar to spousal maintenance type provisions but all states require a court to ultimately make a decision which was just and equitable.
Counsel for the husband said that the basis for the exercise of my discretion came from s 75(2)(O). That provision simply enables me to make any further adjustment that might ensure a just and equitable outcome.
A further flaw in the logic was that the parties had both desired to live in a married relationship. Unlike some parties who chose not to go through a form of marriage ceremony, these parties had done just exactly that. They had therefore sought the protection of federal law.
In this case therefore, I reject the need to treat the parties as any different from any other couple who have been married.

The four-step approach

The Full Court in Hickey and the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 said in relation to the question of the approach that a court should follow:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
The first step therefore is to determine the pool of assets but I shall return to that after looking at the financial history.
In respect of the relevant evidence of each party to prove the matters required under s 79 of the Act, I now set out what each said and my respective findings.

Contributions

The husband said that at the commencement of cohabitation neither party had any assets of significant worth. That evidence was not challenged by the wife. During the relationship, the husband said that he wanted the wife to enrol in a course of education to allow her to fit in better with an Australian way of life but for most of the time she was not able to work because of the age of the children. The wife said that the husband was domineering and prohibited her from undertaking any such course of education but when cross-examined, she agreed that in the latter part of the relationship prior to separation, she in fact undertook a course. When it was pointed out to her that that was inconsistent with her statement in the affidavit, she made the observation that it had happened at a time when she was getting stronger. This is an example of the vagueness of the wife’s evidence.
It is common ground between the parties that during the relationship, it was the wife who was the principal homemaker and parent. The husband made no serious complaint about the wife’s role.
The husband said that he was entirely responsible for earning an income which met all of the financial needs of the family. He was employed in the public service between 1997 and 2003 and worked in the building and construction industry for about two years after leaving the public service. Until recently, he worked as a maintenance fitter.
In 1999, the husband purchased the property at M in his name alone. That land is still unoccupied and it is common ground between the parties that it has a value of $70,000. It appears to have had a shed of some description upon it in which he lived from time to time but the local council objected to it and the structure was removed. It is the husband’s proposal that he will move there and build a house with some of the proceeds of the money that he receives from the settlement. As I shall conclude, there will be no money for that exercise. Although the wife’s initial position was that she wanted everything sold, when questioned, she agreed that the husband could have the M property as part of the settlement.
The parties purchased the K property in the husband’s name alone as vacant land in February 2003. The husband, using his building industry skills, constructed the home that now stands on the property. It appears to have an occupancy certificate. The parties have reached agreement about its value as well. The husband said that work was commenced during the relationship but it was far from complete at the time of separation. Although the husband set out in his affidavit that the value at the time of separation was $150,000 that evidence was not corroborated by any expert evidence. The wife however did not challenge that evidence nor did she proffer any evidence as to the state of the property at the time of separation or its value. The husband said, and again this was unchallenged, the K property was only at lock-up stage with no internal work completed save for a television room and two upstairs bedrooms that were plastered. The husband said that the structure was an open framework with no electrical, plumbing, fit-out or painting. The husband said that subsequent to separation, he has been doing substantial amounts of work on the property and spent all of the money that he was earning from employment on the house. That exercise has included paying tradesmen. In some detail, the husband set out all of the various aspects of that building completion.
The wife said that she was “commanded” by the husband to gather bricks, cement, gravel, sand and other building materials and she climbed ladders to help put the roof on the house. These were in addition to her roles as primary homemaker and parent. In response to that assertion, the husband said that it was a complete exaggeration. He also was not tested about that issue but I have concluded that it means that whilst he was building the home, the wife was caring for the children including to use her expression “massaging him” and then doing the cooking and looking after the children. It would be inappropriate in my view to evaluate the respective contributions of a non-financial nature other than as being equal having regard to the different nature of the tasks involved. It must be remembered that at this stage, the children were very young.
Of more concern is the fact that subsequent to separation, the husband has undertaken a significant amount of work on the home to bring it up to the value which is now agreed. However during that period of time, the wife was also the major carer of the children. As I understand the evidence of the wife, and this evidence was not seriously challenged, the husband had never paid child support because he was registered as unemployed. That evidence being unchallenged it means that the wife was carrying the responsibility for not only the physical care of the children but also to a significant degree, the financial aspects of them having regard to the fact that she was in paid employment.
In addition to the work done on the K property by the husband subsequent to separation, he also drew over $40,000 out of his superannuation fund. I have presumed that comprehensive discovery has taken place between the parties and if it has not, this evidence was not the subject of any challenge. The husband gave evidence in chief about the superannuation situation including the fact that he had been in touch with the Australian Taxation Office for the purposes of obtaining a private ruling. It seems that the auditor of the self-managed superannuation fund had detected what the husband had done and properly indicated that at this stage, the fund is non-compliant. The husband has several months to rectify that position. Importantly, if the amount of that superannuation so drawn has gone into the building of the K property and I find it has, then the liability to repay the superannuation must be seen to exist. If the money is not repaid, then it follows that the husband faces the risk that the Australian Taxation Commissioner will pursue him in his capacity as the trustee of the private fund and possibly take all of it by way of penalty.
I find therefore that the superannuation fund is as outlined by the husband in his evidence but that there is the liability to repay the sum and that the amount is currently sitting in the asset of the K property.
It is also common ground between the parties that the K property will be sold and that may very well attract capital gains tax. The private ruling to which I have referred is really about whether or not the Taxation Office accepts that the property was purchased for the purposes of a primary residence. Although the husband had indicated to the Australian Taxation Office the urgency of obtaining that ruling, as at the commencement of the hearing it was still not received. It was agreed by all parties that it was not necessary for me to worry too much about that because on the amount involved, the liability would not be significant and in any event, it will be paid out of the proceeds of the sale. Whilst the proceeds would not necessarily go directly to the Taxation Department because the assessment will not be made until the year of the sale, I propose to make orders that set aside such sum as the parties agree to cover the capital gains tax liability.
To this point in time, it is difficult to see any significant contribution difference between the parties. That however cannot be said of the monies received by the husband as a result of his family inheritances. The husband said that he swore an affidavit in June 2007 and set out all of the inheritance money he had received. At that time, the husband was not represented by lawyers. He said the total amount received was $154,856 between 1999 and predominantly 2002. There was a small sum received in 2007. No objection was taken by the wife’s counsel to this evidence. That is particularly important because the wife said in some detail that the husband’s only inheritance money totalled $12,510.34 and that the husband kept all of the monies to himself. However when tested by cross-examination, the wife admitted that she really had no knowledge of what monies the husband had received. I must also conclude and I so find that the wife has no idea where the money went and as the evidence of the husband about it being spent on the K property was unchallenged, I find that the inherited money went directly towards and is part of, the value in the K property.

The assets and liabilities

The initial pool of assets prepared by the parties at the commencement of the hearing showed a number of assets of modest value other than the properties at K and M. However, it was conceded by all parties that there were no valuations and each had not gone to the trouble of endeavouring to clarify the position with the other. In the end it was conceded that what I was dealing with was the K property and the M property and the husband’s superannuation.
The husband also listed in his affidavit a series of credit card liabilities. The husband did not produce any evidence as to how these liabilities arose. In final address, his counsel conceded that the use to which the money was put was not a subject mentioned by the husband. Despite the fact that the solicitor for the wife did not cross-examine the husband about the liability, there is no evidence upon which I could make a finding that the liability is either reflected in an asset in the pool or in any way the responsibility of the wife. I am conscious in this case that even if the husband did use the credit card facilities for living expenses, the evidence shows that he was earning a reasonable salary during the period from 2006 onwards and not providing any financial support of substance for the children. In addition, if he was using the funds for the purposes of the K house building, he did not say so but rather focussed on that being done with his inherited money. The onus of establishing that the wife should be responsible for the debt lies with the husband. He failed in that onus.
However, as the debt was not challenged, I accept that it is something that the husband has to carry. In those circumstances, as I indicated to the parties, I will take those debts into account.
The wife has a similar liability but not of the same magnitude. Both parties have legal costs of considerable substance. I will take all of those matters into account when I consider the s 75(2) factors.
When the case began, both parties presented a list of assets that included motor vehicles and various household chattels. All parties conceded at the end that there was no evidence about valuation. Each had no idea what the other had. I could not even work on the principle of an admission against interest by either party having regard to the state of the evidence. Accordingly, I propose to ignore all other assets and leave them where they lie.

Superannuation

At the conclusion of the case, I raised with each counsel the question of how I should treat the superannuation. The wife’s position was that I should simply add it into the pool. The husband’s position was that I should have two pools having regard to the age of the husband in particular. Neither party sought a splitting order.
One of the dilemmas in this case is the fact that the impact of any action by the tax commissioner on the self-managed superannuation fund is not known and may not be a problem if the husband rectifies the non-compliance problem. The husband sought to retain his superannuation in any event. In this case, I simply propose to treat the superannuation as part of one pool on the basis that notwithstanding the delay in the husband ultimately benefiting from it, it will at least grow having regard to the nature of at least the military superannuation portion of it.
I have already set out the problems that the parties face in relation to capital gains tax liabilities. The liability will arise on the sale of the K property if the taxation commissioner rules that it was never a primary residence. I have made an allowance for that in the orders but any capital gains tax liability will have a significant impact on the pool which is already modest. It will affect the husband more than the wife because of the husband’s desire to retain the property at M and his superannuation. When I look below at the impact of the ultimate division, there is little I can do to assist the parties having regard to the liabilities they have incurred not only in respect of credit facilities but also their legal fees.

The pool

The first step in the four step process to which I earlier referred is to define the pool for division between the parties. Accordingly, I find that the pool is:
K property  $400,000
M property  70,000
Sub-total  $470,000
Superannuation   81,571
Sub-total  $561,571
Liabilities
Refund due to the superannuation fund
of the husband  41,897
Total equity for division  $509,674
The second step in the process is to assess and give weight to each of the contributions of the parties. I have already indicated that at the commencement of the relationship the parties began with virtually nothing. During their relationship together, I find that their contributions were equal save for a very significant sum of money received by the husband by way of inheritance. I find that the inherited money went towards and is part of the K property. I find that subsequent to separation, the wife has taken on a significant role in the care of the children without significant assistance from the husband and on the other hand, the husband has continued to use his physical labour and income for the purposes of the completion of the K property.
The distinguishing feature between the parties therefore is the inherited sum. It being unchallenged, I accept that it is a very large portion of the equity currently held by the parties or either of them in the pool of assets. This is not a mathematical exercise and cannot be done on such a basis. However, it is important to note that the money is traceable to the current asset and as such must be seen to have had an enormous impact on the contribution by the husband. Accordingly, I assess and determine the contributions of the parties in respect of the pool of assets to be 60 per cent to the husband and 40 per cent to the wife.

Section 75(2) factors

The husband’s position was that I should make an adjustment in his favour of 10 per cent. The wife’s position was that I should make an adjustment in her favour of 20 per cent.
For the purposes of s 75(2), I find that the wife enjoys good health. I find that the husband is no longer able to work the way he did previously. Without challenge from the wife, the husband produced a medical certificate dated October 2008 which indicated that he had chronic low back pain and had a limited capacity to work. That came from his general practitioner.
Whilst that was the inappropriate way to lead that evidence, the wife simply pointed to the fact that the husband had continued to work. Whilst I accept that the husband has continued to work, there is no recent evidence of exactly what he is doing. The husband’s evidence which was not challenged was that he cannot lift more than 18 kilograms. Having regard to the nature of the work that he had been doing, I accept that that is a fact of life for his future. That is particularly so having regard to the fact that of the industry he worked in. In addition, counsel for the husband pointed to the fact that there had been a general downturn in the industry although again, there was no evidence of that.
The husband’s current income which seems to be supplemented by social security benefits is limited to $25,000 or thereabouts per annum. The wife’s income working on a part-time basis is similar. The difference between the parties however is that the wife has the benefit of her fiancé. Notwithstanding the newness of that relationship, I take into account that the wife is cohabiting and she and Mr TE are pooling their resources.
In this case, a very significant factor is that the wife has the care of two young children and receives little or no assistance from the husband. That warrants a significant adjustment in her favour having regard to the fact that she will continue into the future carrying the financial responsibility of these children.
I have taken into account that this was a moderately long relationship during which the wife did not work but she did have the opportunity at the conclusion of the relationship to study. Just what her evidence meant about her desire to retrain, is unclear but I have presumed with her desire to continue to look after the children on a full-time basis, her future earning capacity will still be limited.
It is a fact of life in this case also that the parties have a very limited amount of capital. I take into account also as I mentioned earlier that each party has significant debts to pay. In this case, the wife’s costs are quite extraordinary by comparison to the husband’s but the husband has the credit card liabilities to carry.
No evidence was led about any child support assessment and there was no application for any departure from the assessment if it exists. On that basis, I take into account that even if the wife did pursue the husband through the child support system, she would be unlikely to receive any significant benefits.
Section 75(2) is designed to make adjustments to achieve a just and equitable outcome having regard to the economic disparities between the parties for the future. I find that the wife will be in a much worse position than the husband having regard to the limited capital assets after the repayment of debts and the very modest income that the wife has. This is a case that warrants a 10 per cent adjustment in favour of the wife.
It is not the percentages that must be just and equitable but the underlying value of those calculations. On the basis of the pool of $509,574 being divided equally, the parties have notionally $254,837 each.
From the husband’s share of that notional entitlement, he is retaining the superannuation and the land at M. That will then leave him with a cash sum of approximately $103,000 out of which he is currently obliged to pay credit cards of about $58,000 and legal fees will take up the rest. Accordingly, all that the husband would have out of this settlement is his superannuation and the M property.
The wife for her part will have $254,837 worth of notional assets out of which she has to pay her lawyers some $60,000. The balance in her case is just short of $200,000. That might be a significant deposit towards a home which will be necessary if she it care for the children on an ongoing basis into the future.
Although the husband may not be able to achieve his stated goal of moving to the M property and building a home there with the proceeds of the sale of the K property, I see little alternative other than to make orders which reflect the fact that each party will be left with very little. In those circumstances, I find that the division of an equal share of the property is just and equitable.

I certify that the preceding One Hundred and Eighty Four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 18 February 2009

[2009] FamCA 90

18 February 2009

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Family Law

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