BLAKE & STRONG

[2010] FamCA 767

FAMILY COURT OF AUSTRALIA

BLAKE & STRONG [2010] FamCA 767

FAMILY LAW – CHILDREN– allegation of sexual abuse – whether a positive/ negative finding as to allegation or whether it is not an unacceptable risk – parallel parenting
FAMILY LAW – PROPERTY – pool of assets – contribution including initial contribution and other factors

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA, 65DAA, 75(2) and 79

MRR v GR [2010] HCA 4
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

APPLICANT: Ms Blake

RESPONDENT: Mr Strong

INDEPENDENT CHILDREN’S LAWYER: Mr Roger Murray

FILE NUMBER: HBC 994 of 2008

DATE DELIVERED: 3 September 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 29, 30 July, 2 & 3 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Daniels

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: Ms Trezise

SOLICITOR FOR THE RESPONDENT: Andrea Trezise

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr R Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray & Associates

Orders

Children

1.BY CONSENT Ms Blake and Mr Strong have equal shared parental responsibility of the children, B (born … December 2001) and A (born … January 2006).

2.The children live with the husband except as otherwise provided for in these orders or as otherwise agreed in writing between the parties.

3.The children live with the wife as follows:-

(a)During school term on a two week cycle so that:-

i.in week one, both children from after school Friday to the commencement of school on the following Tuesday,

ii.in week two, the child A is to live with the wife from after school Tuesday until the commencement of school the following Wednesday and;

iii.in week two, the child B is to live with the wife from after school Wednesday until the commencement of school the following Thursday;

iv.the time the children spend with the wife in the two weekly cycle during school term will commence as follows;

a.week one if the children live primarily with the husband in the school holiday week immediately preceding the start of school term; or

b.week two if the children live primarily with the wife in the school holiday week immediately preceding the start of school term.

(b)For one half of the Easter school holidays being the first half in 2011 and each alternate year thereafter and the second half in 2012 and each alternate year thereafter.  The first half shall be calculated as being after school Thursday to 5.00pm the following Tuesday.  The second half shall be calculated as being from 5.00pm Tuesday after Easter to the commencement of school the following Monday, or the Tuesday if the Monday is a student free day;

(c)The first half of the mid term school holidays in 2010 and each alternate year thereafter and the second half of the mid term school holidays in 2011 and each alternate year thereafter.

(d)The first half of the mid term school holidays shall be calculated as being from after school Friday until 5.00pm on the Saturday in the middle of the school term holiday. 

(e)The second half of the mid term school holidays shall be from 5.00pm on the Saturday in the middle of the mid term school holiday until commencement of school Monday, or Tuesday if Monday is a student free day.

(f)During the Christmas school holidays as follows:-

(i)Christmas 2010 and New Year 2011;

i.from 3.00pm on Christmas Eve to 3.00pm Christmas Day;

ii.from 3.00pm on 28 December 2010 for one week and then week about for the remaining weeks of the Christmas/New year school holidays;

iii.this arrangement shall operate in 2010/11 Christmas/New year School Holidays and each alternate year thereafter.

(ii)Christmas 2011 and New Year 2012;

i.from 3.00pm Christmas Day until 3.00pm on 28 December 2011;

ii.From 3.00pm on 4 January 2012 and then week about for the remaining weeks of the Christmas/New year school holidays;

iii.this arrangement shall operate in 2011/12 Christmas/New year School Holidays and each alternate year thereafter;

(iii)Either party may give the other party notice to extend one of the one week periods on or after 28 December to a two week period provided that the children remain with the other parent for the two weeks following the return of the children.  Nothing in this provision shall prevent the child B from spending part of his birthday with one parent or another or the child A from spending part of her day with one parent or another;

(iv)In the event that the weekly cycle of time over the Christmas/New year school holiday period means that the final week is not seven days, the last week may be extended or shortened by up to three days;

(v)In the event that A’s birthday falls during the school holiday period then the parties shall put in place arrangements for A to spend four hours of her birthday with the parent with whom she would not otherwise be residing.

(vi)In the event that A’s birthday is in the first week of the school term then A shall spend two hours after school with the parent with whom she would not otherwise be residing.

(g)In the event that the children are living with the husband on the weekend of Mother’s Day then notwithstanding any other orders such time shall end and the children will otherwise spend from 5.00pm Saturday before Mother’s Day to the commencement of school Monday (or Tuesday if the Monday is a pupil free day) with the wife.

(h)In the event that the children are living with the wife on the weekend of Father’s Day then notwithstanding any other orders such time shall end and the children will otherwise spend from 5.00pm Saturday before Father’s Day to the commencement of school Monday (or Tuesday if the Monday is a pupil free day) with the husband.

4.Both parties be and are restrained from denigrating the other party to the children or within hearing of the children.

5.Each party shall authorise all schools, that either child may be attending from time to time, to provide copies of all school reports, newsletters and other relevant school information to both parents together with any other records or information that the other party may reasonably and lawfully request from time to time.

6.Each party shall keep the other informed as to health issues relating to the children as soon as practicable in each case.

7.I direct that the Independent Children’s Lawyer forward to the relevant child protection authorities, Relationships Australia, any psychologist or counsellor involved in assisting either parent or the children and the children’s general practitioner the following:-

a.A copy of these Orders;

b.A copy of the Reasons upon which theses Orders are based;

c.Copies of the Family Consultant’s Children’s and Parents Issues Assessment and Family Report dated 16 March 2009 and 16 March 2010 respectively;

d.Copies of the reports of Dr R;

e.The children’s general practitioner is permitted to provide a copy or copies of any one or all of this material to any other health care professional in respect of either or both of the children.

8.That the parties jointly do all acts to cause the child, A, to be seen by a child psychologist (such as Mr V) and the role of the psychologist will be to assist the parents to manage A more effectively.

9.That the parents consult either separately or together the nutritionist recommended by A’s general practitioner. 

10.Pursuant to s65DA(2) and s62B, 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.

Property Orders

11.The husband pay to the wife the sum of $140,236.50 within sixty (60) days of the date of these orders.

12.That upon such payment the wife shall assign to the husband the whole of her right, title and interest in the property at T and shall indemnify the wife in relation to principle and interest in respect of the mortgage secured over that property, council rates, water charges and other expenses and liabilities in respect of such property.

13.In the event the husband does not pay the said sum of $140,236.50 referred to above within sixty (60) days, or such other time as is agreed in writing between the parties, then the parties shall do all acts and sign all documents to cause T property to be placed on the market for sale subject to the following:-

(a)the husband shall keep the property in good order and condition for the purpose of the sale and shall reasonably allow the property to be available for inspection by purchasers or for open homes;

(b)the solicitor acting on the sale of that home shall be a solicitor agreed between the parties or in the event if they are unable to agree then as nominated by the President of the Law Society of Tasmania;

(c)the agent and auctioneer for the sale of the property shall be as agreed between the parties and if the parties are unable to agree then an agent or auctioneer nominated by the President of the Real Estate Institute of Tasmania;

(d)the property shall be sold by auction at a reserve price of $375,000 or such other figure as is agreed in writing between the parties.  If the property is not sold at the first auction then it will be auctioned again two months later and the reserve price will be such reserve as agreed between the parties or if the parties are unable to agree as determined by N Valuers.

14.The net proceeds of sale are to be distributed as follows:-

(a)in payment of legal costs and disbursements, agents and auctioneers fees and advertising, fees associated with the appointment of solicitor and/or agent and fees associated with the valuation for the purpose of determining such valuation;

(b)payment of outstanding council rates, water charges.

(c)the amount due to the Commonwealth Bank of Australia (balance as at 30 June 2010 $178,828).

(d)the amount of $140,236.50  to the wife together with interest on that sum calculated from sixty (60) days from the date of these orders to the date of payment and in accordance with interest rate prescribed under the Rules of court;

15.The husband is solely entitled, as against the wife, to the:-

(a)two signed Carlton jerseys;

(b)autographed guitar;

(c)his half interest in S partnership;

(d)Ford Falcon motor vehicle, furniture and effects situate at T; and

(e)his superannuation entitlements of about $22,000.

16.The wife be entitled as against the husband to all personal property in her possession or control including her superannuation entitlements with a value of approximately $18,000 and her 2004 Holden Commodore with a value of $6,200.

17.The wife shall indemnify the husband in relation to the Paypal debt, CBA visa card debt of about $12,413 and the Telstra Corporation debt.

18.This matter be removed from the list of cases requiring determination.

19.All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

20.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 994 of 2008

MS BLAKE

Applicant

And

MR STRONG

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.The parties to this dispute are the wife, Ms Blake, the husband, Mr Strong and the Independent Children’s Lawyer.

2.The parents are firstly unable to agree on the parenting arrangements for their children, B and A and secondly as to how the parents’ property is to be adjusted.

Parenting Proceedings

3.An order was made for the appointment of an Independent Children’s Lawyer for the children.

4.The parties and the Independent Children’s Lawyer all submitted that there ought to be an order for equal shared parental responsibility for the children.  For the reasons set out, I had reservations about that proposal.  However, in all of the circumstances I determine that it is the only viable outcome for these children.  As such, I will be making that consent order.

5.The parties are generally agreed on arrangements for the children to spend half of their school holidays with each parent and have made appropriate arrangements with regard to Christmas, Mother’s day, Father’s day, the children’s birthdays and parent’s birthdays.  That is a sensible course.

6.The substantive issue regarding parenting is whether the children should live with the husband 9 days a fortnight and with the wife 4 days a fortnight (as is submitted by the Independent Children’s Lawyer and the husband) or alternatively spend equal time with each parent, as submitted by the wife.  The equal time scenario has been the substantive parenting arrangement for the children since the parties’ separation.  If the wife’s application for equal time is not successful then she says I ought to consider a cascading approach of the children living with her 6 days out of 14 or 5 days out of 14.

Background

7.The husband is aged 43 and the wife is aged 29.  They met and commenced cohabitation in about February 2001 and married in March 2004.  It is an agreed fact that the parties separated in April 2008.  

8.These proceedings were heard at Launceston on 29, 30 July and 2 and 3 of August 2010.

9.At the date of hearing B was aged about 8½ years and A about 4½ years.

10.In September 2008 the wife commenced proceedings in the Family Court and orders were made in October 2008 that the children spend equal time with each parent.  There has been continuing antagonism and animosity between the parties since that date.

11.In November 2009 a Federal Magistrate varied the existing orders to allow the husband to have time with the children over Christmas and permitted the wife to take the children to Queensland for a holiday on the basis the husband had the same time with the children on her return.

12.In January 2010 the wife filed an application to suspend the husband’s time alleging that the younger child had disclosed that she had been sexually abused by the husband. There followed police and child welfare investigations, no criminal or civil action followed those investigations.

13.Over January and February 2010 the husband did not see the children.  An order was made on the 18 of February 2010, enabling the husband spend supervised time with the children.

14.A Family Report was ordered and a Single Expert Report was obtained. The proceedings were heard before me over 4 days in July/August 2010.

15.In these reasons any statement of fact is to be regarded as a finding of fact, unless the context of the statement makes it clear that it is not a finding.

The Parenting Issues

16.The primary issues were about the parenting of both parties.  There were issues about the wife’s capacity to parent including her capacity to cope with the youngest child in terms of the child’s personality and character type.  There were also concerns about the husband’s ability to cope with parenting and his willingness and ability to encourage the children’s relationship with the wife.

17.The parties’ ability to communicate is poor and neither party trusts the other.

18.There was an allegation that the husband sexually abused his daughter in early 2010.  There has been significant investigation and the present position of the wife is now that, whilst she has some lingering concerns, she does not believe that the children are at risk of abuse in the unsupervised care of the husband.  That is also the view adopted by the Independent Children’s Lawyer.  The husband’s view is that he has never been and is not a risk to either of his children.

19.Without repeating all of the evidence that was put before me but having regard to that evidence and my findings of fact, I am satisfied that the children are not at an unacceptable risk of sexual abuse in the care of the husband. 

20.Therefore the remaining question for me is whether the children should live with the wife 4, 5, 6 or 7 days per fortnight during the school term.

Relevant Legal Principles to be Applied

21.In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

22.The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.

23.The principles set out in s 60B(2) that underlie those objects are that, except when it 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).

24.Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 61DA(2), (3), (4) and (5).

[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

25.If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted, under 61DA(2) but a Court determines that it is in a child’s best interest for an order for equal shared parental responsibility, it should be made.

26.The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. 

27.The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)).  This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA.  In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.

28.Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

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.

29.How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:

Primary considerations

(2)        The primary considerations are:-

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3)      Additional considerations are:-

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

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

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

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

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)any family violence involving the child or a member of the child’s family;

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant.

30.A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.

31.In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;

Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[2].

[2] MRR v GR  [2010] HCA 4.

32.The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child

33.As there is to be an order for equal shared parental responsibility I am bound to positively consider those matters required by s 65DAA.

34.In the light of the findings of fact and the s 60CC considerations I have considered whether the children should spend equal time or significant and substantial time with each of the parents. Similarly I have considered whether the children spending equal time or significant or substantial time with each of the parents is reasonably practicable. Both equal time and significant and substantial time are reasonably practicable.

WITNESSES

The Family Consultant

35.A Family Consultant, Ms D, prepared two reports about the children.  The first report was a Children and Parent Issues Assessment dated 16 March 200 (“the first report”).  The second report was a full Family Report dated 16 March 2010 (“the second report”).  Both reports were read into evidence.

36.The first report was seen by me in the context that it is an Issues Assessment and not a full Family Report.  In that assessment the Family Consultant set out some future directions which included:-[3]

The parent’s are urged to consider attending the Parents Contact Program offered by Relationships Australia … This has been adopted by the wife and in part adopted by the husband).

It is recommended that direct handovers between parents should be avoided where possible.  Hence it is suggested that a Sunday 7pm drop off at the shopping mall once per fortnight become [sic] a late afternoon drop off at the Children’s Contact Service and other changeovers occur at school or child care (the parties adopted this approach but then negotiated a different approach which met the parents’ respective needs).

If the matter proceeds to trial it would seem appropriate there be a single expert appointed to assess the wife’s mental health and the impact of this on parenting.  The appointment of an Independent Children’s Lawyer may also be indicated. (Those recommendations were accepted and adopted). 

[3] At page 6.

37.The Family Consultant opined in that assessment that:-[4]

… If the children were primarily in her [the wife’s] care she may not be able to manage her life as well as she is currently.  If the children were in their father’s [the husband’s] primary care, it is likely they would miss their mother [the wife] to whom they appear closely attached.

[4] Ibid at page 5.

38.The indication was that the children should live primarily with the wife although this must be seen in the context of the nature of that Issues Assessment.  The Family Consultant also expressed concerns about the parties’ daughter.  The Family Consultant said:-[5]

She [A] was obviously unsettled and overtired and is in the developmental stage where children are trying out their power and need their parents to firmly contain them and set down the boundaries.

[5] Ibid at page 4.

39.The first report was undertaken prior to the abuse allegation.

40.The second report was prepared soon after the abuse allegation. In that report the Family Consultant recommended the following:-[6]

If the father is found not to pose an unacceptable risk to the children, it is recommended that [the children] live with their father for ten days per fortnight and with their mother for four days per fortnight

It is suggested that the children’s time with their mother could consist of a block of time in Week 1 of Friday to Monday.  In Week 2 that the mother have time with [B] on one other day (and [A] therefore spends this time in her father’s care) such as the Wednesday overnight and that the mother have one day just with [A] (and [B] therefore spends this time in his father’s care) such as the Thursday overnight so that each child has the opportunity for one-on-one time with each parent.

It is recommended that in the mid term school holidays (May/June and September) the children live with each parent on a “week about” basis and that the longer summer holidays be as per the fortnightly pattern with the exception that each parent has at least two “one week” blocks of time with both children.

It is recommended that this report be released to Child Protection, Laurel House, Relationships Australia and any psychologist or counsellor involved in assisting either parent or [B] or [A].

It is recommended that the parents take [A] to be assessed by a child psychologist such as [Mr V] who has already seen [B].  The psychologist can then assist the parents to manage [A] more effectively.

It is recommended that both parents consult either separately or together the nutritionist recommended by [A’s] general practitioner.

[6] At page 14.

41.The Family Consultant was cross-examined by each of the parties’ legal representatives and by the Independent Children’s Lawyer.  Her qualifications were not in issue.

42.I accept her evidence and I accept much of the underlying facts upon which the Family Consultant based her recommendations.  I will be making orders for the provision of these reasons, the orders and appropriate social science reports to the relevant organisations.  As the question of sexual abuse is no longer a significant issue there seems no reason to provide the material to Laurel House.  I have also accepted the Family Consultant’s recommendations in relation to the referral of the child A to a child psychologist and to a nutritionist for treatment.

43.The Family Consultant made it clear that the parties needed to set proper boundaries for the children, particularly A, and she was concerned that both the parties seemed to enmesh the child in adult issues including the allegations in relation to A.  The Family Consultant was concerned that the early experience of A may have been unsettled.  The Family Consultant said, and I accept, that there is a close relationship between the wife and the children and the husband and the children.  She said, having regard to the experience of shared care since separation, it is not an option for it has not worked. The Family Consultant observed:-[7] 

Individually the parents have their parenting weaknesses and will find it difficult to successfully parent [A] as primary carers. [The wife] has been aware that she needs professional advice on parenting and actively seeks this out which is highly commendable.  However due to her own vulnerabilities and the magnitude of the task in relation to her daughter, strong consistent parenting may be beyond her – [A] knows how to “push her buttons”.  [A’s] behaviour is very challenging for her and she struggles at times.  Whatever proportion of time she spends with the children she will require further assistance and support as a parent.  If she continues to be over attentive and questioning of [A] then it is likely that [A] will continue to be extremely demanding and there is a risk that she may give [the wife] information for the sake of answering her mother’s [the wife’s] questions regardless of whether the information is made up or real.  In addition although [the wife’s partner] is of great assistance to her and impressed as a very capable, calm and committed partner, he is only 25 years of age, and they have not lived together full-time, and they have always enjoyed a significant break from the children each fortnight.  It is likely that, if this relationship was to end, [the wife] would experience significant difficulties with the challenges of parenting her two young children, one of whom is particularly difficult for her.  

[7] Ibid at paragraph 50.

44.The Family Consultant goes on to say:-[8]

[8] Ibid at paragraphs 51 and 52.

[the husband] displays some rigidity in his thinking and has problems in dealing with his stress levels, and does not acknowledge he needs assistance and advice in relation to either his personal coping or his parenting.  In the longer term his indulgence of the children and tolerance of [A’s] more negative behaviour’s will be problematic for the children.  Young children particularly need routines, appropriate expectations, and positive reinforcement of good behaviours without undue attention being paid to negative behaviours.  [The husband] needs to seek parenting advice.  In addition his lack of knowledge of the issues of [A’s] obesity is concerning.  [The husband] needs to seek advice on management of this issue as obese children are often teased and often have other problems when they reach school age.

Nevertheless [the husband] is calmer and appears to be more consistent in his approach to parenting than the wife.  Although happy with his new relationship and the support he derives from [his new partner], [the husband] is not dependent on his new partner for assistance in coping with the children.  He therefore appears more capable of being the primary carer of the children than the wife.  The major problem that would occur if he was to have the major care of the children would continue to be his avoidance of the wife and his lack of willingness to involve her in relation to important parenting decisions and approaches.

44.The Family Consultant says further:-[9]

[9] Ibid at paragraph 54.

[The husband’s] interpersonal difficulties with the wife remain a significant feature of this matter.  [The husband’s] anxiety and real focus on past instances of behaviour by the wife when she was not coping well (as she admits and is taking steps to remedy) appears to be excessive.  He has not been reassured regarding her mental state despite Dr [R’s] assessment as to his own experience of her behaviour in the past, as he recounts, have been very stressful for him and made him very concerned for the children’s welfare.  It appears to render him incapable of promoting [the wife] to the children. Although [the husband] has attended a social worker for personal support and advice on about 6 occasions it may be that psychological assistance would be of greater benefit to him in managing his anxiety and stress levels, assisting him to develop greater insights and to move forward in the hope that he can work more effectively with [the wife] for the benefit of the children in the future.

45.The Family Consultant was less clear as to who the primary parent was in respect to the children. Initially her thoughts were that it was the wife, however, after both parents talked about their involvement with the children. I am satisfied that the children are attached to both parents.

46.Counsel for the wife cross-examined the Family Consultant as to whether the timing of her report, being so close to the allegations of sexual abuse, may have coloured the second report.  The Family Consultant acknowledged that it was close to that time but said that she did not believe it was a significant feature of her report as she drew her information from a variety of sources.  I accept that evidence.

47.The Family Consultant was concerned that the husband’s attitude to the children’s diet was poor and that he wasn’t sufficiently attuned to that issue.[10]  The Family Consultant recommended, and I accept, that both parents need to look at the dietary practices in their homes and in particular with the demanding nature of A.

[10] At paragraph 29 of the second Family Report.

48.When asked about some positive aspects of the wife’s approach since that time, particularly in terms of communication, the Family Consultant said this was encouraging but continued to believe that equal time would not be in the best interests of the children.  B could probably cope but A would not cope.  The Family Consultant said the wife does not cope as well with the children as the husband.  Further, she said the wife is not as consistent in her approach to parenting as is the husband.  The Family Consultant was concerned that the husband needs to be more balanced in his treatment of the children and said it would be problematic “if he were to have the majority care of the children”[11] as to whether he would promote the children to the wife or “involve her in relation to important parenting decisions and approaches”.[12]  Whilst that is problematic the Family Consultant said that is appositive about the children’s need to have the wife in their lives.  That is a problematic part in relation to his parenting.

[11] Ibid at paragraph 52.

[12] Ibid.         

49.The Family Consultant was concerned about the children coping with the equal arrangements in two different houses.

50.The Family Consultant was cross-examined about some behaviours observed by Ms K at the day care centre particularly some aggressive behaviour and the husband taking the child A to child care but then not taking her inside when she objected.  These are troubling aspects of the husband’s care of the child.

51.I accept the evidence of the Family Consultant and generally accept the factual basis upon which the recommendations were made.

52.The Family Consultant said:-[13]

[13]Ibid at paragraph 46.

The benefits that the children enjoy from a substantial shared care arrangement appear to be outweighed by the disadvantages.  Although many parents consider equal time to be the fairest arrangement, it is not necessary for the children to have equal time with each parent to continue to have a meaningful and significant relationship with them. [The wife] and [the husband] have had the opportunity in the past 12 months to work on improving their communication and build a parental alliance with the help of appropriate professionals.  The husband maintains that this is not possible for him because of the problems inherent in the character of the wife and the wife maintains it has not been possible because the husband refuses to communicate with her and is controlling.  Hence the parenting preferred by the husband has been in place which could be described as parallel parenting.

53.Having regard to the evidence of each of the parties and having regard to the evidence of Dr R who says that the parties are in a sense opposites and that such relationships tend to be notably conflictual.

54.I accept the opinions and observations of the Family Consultant.

Dr R

54.Dr R gave evidence in accordance with his reports of 29 of September 2009 (“the first report”) and 7 of July 2010 (“the second report”).

55.He was not challenged as to his qualifications. As such I accept those qualifications.

56.In his first report Dr R undertook a psychiatric assessment of the wife.

57.At the time of his diagnosis, in his opinion, the wife:-[14]

[14] Page 11 of Dr R’s first report.

… has suffered from a fluctuating condition characterised by dysthymia which is consistent with but not diagnostic of a Personality Disorder Not Otherwise Specified.  Her dysthymic symptoms have been associated with a thyroid disorder, producing hypothyroidism and as a consequence of over-replacement necessitating an adjustment of her Thyroxin doses, the effect equivalent to transient hyperthyroidism.  Both these conditions may be characterised by depressive and other psychiatric symptoms.  

58.He goes on to say that in his opinion the wife has the capacity to safely care for the children.  However, he puts some caveat on this when he says that she would appear to be “reliant on the present apportionment of residence for her ability to continue employment and undertake study towards future employment”.[15]

[15] Ibid.

59.The second report arose after there was an allegation by the wife that the husband abused the parties’ younger child.  In that report Dr R took some history from the wife but observed that the wife’s concerns that the child had been abused had faded (this interview was in April 2010).  He confirmed the diagnosis of the wife.  He disagreed with a diagnosis of Psychiatric Registrar, Dr C, who diagnosed the wife with a Cluster B personality disorder.  The difference in diagnosis according to Dr R arose over the need for there to be consistency. 

60.Dr R said that if the observations of the Psychiatric Registrar were correct the wife would have difficulty parenting the child.  The Psychiatric Registrar observed:-[16]

[16] Ibid at page 7.

She [the wife] reported almost life long persistent and pervasive pattern of unstable self image with low self esteem, marked effect instability with “mood swings” that are frequently unprovoked and are rather extreme and can last between several hours to several days, impulsive behaviours, inappropriate and intense feelings of anger and difficulties controlling it, rigid, obsessive personality structure sensitive to criticism, lack of empathy, tendency to be in the centre of attention, transient low grade paranoia that is exaggerated by cannabis misuse, pervasive, pan anxiety that encompasses all areas of her life and recurrent suicidal gestures and behaviours (overdoses) as well as cutting her wrists that started when she was 13 years old.

61.The Registrar went on to note that the wife very regularly consumes a rather large quantity of alcohol.  The wife now says that such consumption has either ceased or has been substantially reduced. 

62.Dr R did notice some cooperation between the parents in relation to interviews.  He said that the wife’s risk of abhorrent behaviour was associated with her use of cannabis and/or alcohol.  He said she had irregular use of alcohol with episodic abuses rather than continuing abuses.  His assessment was that these were less frequent and/or were abating.  He noted there was no recent history of substance abuse.

63.Dr R was cross-examined by the Independent Children’s Lawyer in relation to the Family Report.  He said that this was outside the area he had been asked to investigate.  I accept his evidence.  I am satisfied the wife does have difficulty in managing the children.  This is reflected not only in Dr R’s report but also that of the Family Consultant and on the evidence which has come before me.

64.I accept the qualifications and evidence of Dr R.

Evidence of the wife

65.The wife gave evidence in accordance with her affidavits of 26 September 2008, 25 January 2010, 15 February 2010 and 2 July 2010.  She also relied on her statement of financial circumstances filed 2 July 2010.  The wife asserted that she was the primary carer of the children prior to separation.  I accept she was one of the primary carers of the children at that time.

66.The wife said that she was not easily upset and denied that she flew off the handle.  Her evidence in this regard was not convincing.  The wife complained that the husband was bullying in terms of his interaction with her.   

67.She gave evidence and was cross-examined in relation to the parties’ relationship.  Suffice to say that neither party can hold their heads high in respect of their interaction during the course of the time they were together.

68.The wife has a tendency to understate adverse events in so far as they relate to her and overstate them in so far as they relate to the husband.

69.The wife initially denied any psychiatric background but upon documents being produced her psychiatric history was exposed.  She said she denied admitting her illness because she was afraid of being stigmatised. 

70.Her evidence needs to be treated with some caution and I have done so.

Mr J

71.The wife’s present partner, Mr J, gave evidence for the wife.  He was an impressive witness.  He provided evidence in two affidavits, one dated 15 February 2010 and the other 14 July 2010.

72.From his subjective point of view, I am satisfied that Mr J endeavoured to give evidence honestly and frankly.  He is a significant support for the wife and has assisted her in managing herself in recent times particularly after the events of January 2010.  I generally accept his evidence (although I am conscious of the subjective nature of it).

Evidence of the husband

73.The husband gave evidence in accordance with his three affidavits filed 15 July 2010, 25 January 2010 and 27 January 2010.  He also relied upon his statement of financial circumstances filed 15 July 2010.

74.His evidence at some levels was self-serving, particularly in relation to the property contributions and the work he allegedly undertook on the L Street property before the parties commenced cohabitation. 

75.The husband was and remains angry with the allegation that he abused his daughter in January 2010.  He has limited insight as to whether this is about him or his children.  It would naturally be traumatic to be the subject of a false or misinterpreted allegation of child sexual abuse. In this case the husband is hoping that the Court would provide him with some “vindication”.  He clothed that in the description that it would be good for his daughter, when I was about him.

76.When asked to consider the analogy of abusing his daughter with him raising, on numerous occasions, a crime perpetrated on the wife when she was seventeen the husband had no or limited insight as to that comparison.

77.The husband’s evidence is coloured by his own experience and has to be treated cautiously, and I have done so.  The husband had shown limited insight as to other aspects in terms of his parenting such as the taping of his interview with Dr R, his video taping of the children at child care and bringing the video camera and tape to court which he says was to show some events with the children.  The husband’s evidence was not impeached but I am troubled by some of his evidence and some aspects of his demeanour, in particular his anger and self focus.

Mrs Strong

78.Mrs Strong is the children’s paternal grandmother.  She gave evidence in accordance with her affidavit[17].  The paternal grandmother gave evidence that she had been involved with the children on a regular basis since B was eight weeks old.  I generally accept her evidence that she was involved, although not at the level that she asserted.

[17] Filed the 15 July 2010.

79.When pressed she did acknowledge that B went to family day care and I note that the wife was initially only in paid employment two or three days a week.

80.The evidence of the paternal grandmother was that she has been significantly involved in the care of the children post separation, and her demeanour showed this was a task that she enjoys and that she has a good and close relationship with the children.

81.I have had regard to the role the paternal grandmother played in relation to the care of the children.  This was something that the paternal grandmother wanted to do and something that grandparents often do.  I have had regard to it although not at the level asserted by the paternal grandmother. 

82.The paternal grandmother also gave evidence in respect of the property proceedings.  She said that she believed most of the renovations and works were undertaken on the husband’s then property between August 2000 and 25 December 2000.

83.Her evidence was at some levels inconsistent in that she said she was not always there but then went on to say she went down to visit on regular occasions.  I have some concerns in respect of this evidence as it was called at the last minute and was clearly an endeavour to support the husband’s assertion of the extensive renovations he had undertaken on the property.

84.I am not satisfied that her recollection and dates are accurate.  In addition she is closely aligned to the husband’s cause.

85.I have had regard to her evidence in determining the work done to the property at L Street.  However, on balance I prefer the evidence of the wife in that regard, which is that the work was mostly undertaken subsequent to the parties’ commencement of cohabitation.

Section 60CC(2) Factors

(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

85.Each of these parents is different.  The husband is a dour man but loves the children who in turn love him. He is a significant and stable influence in their lives.  There is a real benefit in him having a continuing relationship with the children.

86.The Family Consultant observed in her second report:-[18]

[18]At paragraph 43.

[A] has resumed spending time with her father in the presence of either [Ms N] or the paternal grandmother and appears happy and relaxed to be with him. 

87.The wife has a close relationship with the children and they love her and react well to her.  The wife has had difficulties in the past in coping with the care of the children.  She has needed to call upon the husband for assistance from time to time.  This is indicative of the view that the husband is a capable parent and is also indicative of the wife needing such assistance and being able to put her views of the husband aside to enable the children’s needs to be met.  The wife has used alcohol to excess and I am satisfied that she screamed and yelled at the children.  From time to time she has been unable to cope with the day to day care of the children.

I accept the Family Consultant’s assessment of the wife and her parenting is, on the evidence, very accurate.  Her assessments of the wife and the husband are set out in the second family report.

88.Irrespective of which of the parties’ approaches I adopt, the children will continue to have the benefit of a meaningful relationship with both parents.

(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

89.The wife claimed that on 23 February 2010 A had said that the husband had “hurt her [vagina]”.  She went on to say that the husband “hurt me giny [vagina]” with his hand. 

The issue of the mother’s report that [A] said her father had digitally penetrated her vagina and whether [A] is at unacceptable risk in her father’s care is now central to this matter and will need a Court determination.  It is also central to this matter because it may indicate that [A] is at risk in her mother’s care if the mother has been overly presumptive about the likely cause of [A’s] sore bottom and therefore overly focussed on comments by [A] that supported her suspicions.  It would be of even greater concern if it were found that the mother had coached [A] in some way to make the remarks implicating her father. Prior to the allegation, [the wife] had voiced support for the father having considerable involvement in raising the children, despite their difficulties in communicating and co-parenting

The police woman’s verbal report of the interview with [A] recorded in the Child Protection notes (on subpoena) were read after these family report interviews were conducted.  Two aspects of this report give rise to some concern.  Firstly [A] is reported to have pulled the male doll’s pants down “and put her mouth on the penis”.  This might be an indication of direct sexual activity with a male or witnessing sexual activity between others or of viewing sexually explicit material.  Alternatively [A] might have simply responded to this unusual doll without having been exposed to inappropriate sexual material.  The other concerning aspect of this interview is that the mother is reported to have said to [A] that she would “have to tell [H] (the policewoman) what Dad did to her or she might not be able to stay with mummy anymore”.   This is inappropriate pressure and influence by the mother.

…

The timing of the allegation so close to family report interviews and the trial (which was due to take place in March [2010]) also inevitably raises some doubt as to the veracity of the claim and possibly the mother’s intention which conceivably could have been to thwart the father’s application.  The other factor that may be relevant to the allegation is the mother’s history of being sexually assaulted twice, once as a young girl of similar age to [A].  It would be natural given this history for [the wife] to be vigilant and protective of [A] and to readily accept what [A] allegedly said to her. 

[The wife] stated that she believes [A] although she accepts that the medical examination of [A] has shown that she had thrush and had not been penetrated.  This does not rule out the possibility that she may have been sexually molested and have had thrush at the same time or subsequently.  If so, this sexual assault may have been by her father or someone else.  There seems to be very little objective information to support the allegation and it is even possible that the mother may have misinterpreted what [A] has said or leapt to the wrong conclusion

90.The wife spoke to her partner, Mr J and the child did not repeat the allegation and later on that day the wife said to Mr J, in the presence of the child, that the husband had interfered with the child.  The following day the child allegedly spontaneously said to Mr J that the husband had put his finger in her vagina.  While I am satisfied with the evidence of Mr J that something similar was said by the child it must be seen in the context of the conversations in the presence of the child the previous day.

91.The wife now accepts that there was a reasonable explanation and that it was unlikely that the husband sexually abused the child.  The child was medically examined and the police and child protection authorities were involved. 

92.The husband was outraged at the assertion that he sexually abused his daughter.  That sense of outrage and anger came through when he gave evidence.

93.I am satisfied that the wife has lingering doubts in respect of the events from earlier this year. Mr J believes what the child said to him, and that the child was abused.  I am not satisfied that the child is at an unacceptable risk of abuse in the care of the husband. There are numerous plausible explanations, particularly with regard to the child’s health at that time. 

94.I have had regard to the wife’s re-definition or reconstruction of what the child said in later conversations with Mr J and the wife then giving her version of what happened to Mr J in the presence of the child and the likelihood of the child repeating that conversation the following day.

95.Both parties now seek that the other party have unsupervised time with the child. This reflects on each of them in considering what had allegedly happened in January 2010.

96.The husband wants me to make a positive finding that nothing happened.  I am reluctant to do so.  I explained to the husband, when he was in the witness box, that if it was open for me to do so I would, but that courts ought to be careful in making such findings.  Particularly when it is clear that neither party asserted that the child was presently at an unacceptable risk of abuse.

97.The end result of this is that I am satisfied, on the evidence, that the husband does not pose an unacceptable risk to the child.

98.I am equally satisfied that the wife continues to be vigilant in relation to this aspect and I am satisfied that the husband believed that the wife fabricated the story.

Section 60CC(3) Factors

(a)      Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

99.A is four and a half years old.  Her views were not recorded.

100.B who is aged eight and a half was asked about the likes and dislikes in each parent’s home and:-[19]

[19]At paragraph 35 of the second family report.

…. was positive about his mother – she was “nice” and “smart”.  His dislikes with his mother were “the music on too loud” and “tantrum” which he explained was when his mother gets “uptight” and “cries in her room” because [A] is naughty.  He said “I just don’t like the tantrum”.  [B] was asked about what happened when Mr [J] was also there and he responded that there was “nothing (meaning no) tantrum….that’s why she (his mother) likes him, he helps her”.  For likes at his father’s home [B] mentioned his playstation, 8 ball, and riding bikes around the block.  As regards dislikes, [B] said there was “probably nothing” at his father’s home and added “he has 8-ball, jumping castle…. he has the best things for us, awesome”. 

[B] was also asked whether there was anything about his living arrangements that he would like the judge to know and he responded that he would like time with each parent, “Mum and Dad decided sharing to make it fair” and he mentioned ‘50/50’ and that Dad, Mum, [Mr J], [Y] and Nan liked that arrangement.  He was asked about [A] and said “she loves (his emphasis) mum and dad, so probably (equal shared time) would be best for her”. 

101.These are the views of B and I have had some regard to them.  In doing so I have considered the child’s age and maturity.  

(b) The nature of the relationship of the child with:

(i)     each of the child’s parents; and

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

102.Each of the parties submitted that they each were the primary carers of the children before separation.  Each of the parties has, at some levels, demonised the other and blames the other for the break-down in their communication.  The parties communicate regularly but up until recent time have communicated poorly.

103.Strangely, since the events of January 2010 the parties’ communication has improved.  They exchange regular emails and are able to put in place sensible arrangements.  An example of that was when the wife visited Dr R in April 2010 and the husband looked after the children.  The wife has, over the years, acknowledged some weakness in her parenting and when she has difficulties she seeks assistance and looks to the husband to assist.  He is willing and able to do so.

Commonwealth Bank Shares

194.The husband sought to have added back the proceeds of sale of Commonwealth Bank shares which were sold by the wife with an agreed value of $3,613.  That falls into the same category as the wife’s Visa card debt and the husband’s payment of $7,190 and, at one level, the medical insurance that was paid out of the joint account.  Accordingly, I will not be adding back that sum.

PayPal debt

195.At separation the wife endeavoured to take a little more than half of the parties’ money from the investment account.  The bank allowed the transfer and the husband complained that the money was re-banked.  The wife says that she used that money to pay expenses, including some legal expenses and to also set herself up again. 

196.The husband says that the wife claimed that the whole of the money was used for legal costs.  No evidence was before me as to either parties legal costs and neither party sought an add-back or allowance in relation to that.

197.I am satisfied the money was used primarily as asserted by the wife in her evidence and accordingly I will allow the liability.

198.The total of the net asset pool is thus $283,283.

Contributions

199.In terms of contribution the parties commenced cohabitation in 2001 and commenced living together at L Street in early that year.  The husband says that his initial contributions far outweigh those of the wife.  He seeks an adjustment in this regard.  The wife says that the husband’s initial contributions were not so substantial and overall their contributions should be treated as equal.

200.The husband asserts that at the time the parties commenced cohabitation he had L Street with a value of $148,000 and subject to a mortgage of about $15,000.  In addition the husband said he had a Holden Commodore motor vehicle.  On his evidence the husband had assets totalling about $113,000.

201.Upon closer analysis it would seem that the property at L Street was purchased by the husband in August 2002, approximately five months before the parties’ commenced cohabitation. At that time the husband paid $78,000 for the property and had it mortgaged to the extent of $73,088. The equity was less than $5,000.

202.That property was sold in 2002 (somewhere between one year and two years after the parties’ commenced cohabitation) for $148,000.

203.There was no evidence before me as to the value of the home as at the date of cohabitation.  The husband said that he substantially renovated the home, including changing kitchens, cement rendering and significant other work in the home which was all undertaken before he commenced living with the wife.

204.The wife said some small amount of renovations had been done prior to cohabitation but most of it was done together subsequent to cohabitation.  On balance I prefer the evidence of the wife.  I find that most of the renovations were undertaken after the commencement of the parties’ relationship.  It is significant that the husband would have incurred expenses which would have given rise to invoices.  No invoices were provided to me by the husband.  I am satisfied that the husband had a small equity in L Street at the time of cohabitation and his interest in a motor vehicle.  I am satisfied the wife had some personal effects and a motor vehicle. The husband’s initial contribution was slightly greater than that of the wife.

205.The parties then worked together over the period of their marriage until separation in April 2008.  The husband asserts that his mother contributed significantly over the years.  I am satisfied that she helped over those years but not to the extent asserted by the husband.  The parties were otherwise engaged in caring for the children and the wife was in paid employment on regular occasions throughout the marriage and was a significant carer of the children.

206.I am satisfied that throughout the relationship the wife made equal contributions to that of the husband.  Except that the husband received a compensation payment of about $8,000 for an assault during the relationship.

207.Post separation the parties had almost equal time in respect of the care of the children.  The husband has had occupation of the matrimonial home and used the parties’ significant savings to pay the mortgage.

208.It has to be taken into account that for part of the relationship the husband’s son Y (born in January 1994) spent significant time with the parties although not overnight in the later years before separation.

209.Having regard to all of those facts and circumstances I am satisfied that contribution ought to be treated as being equal.

THE OTHER FACTORS

Section 75(2) factors

(a) The age and state of health of each of the parties; and

210.The husband submitted that because of the age difference between the parties that, the husband, being aged 43 and the wife being aged 29 (almost 30) that she has a longer earning potential.  I have had regard to the age difference between the parties

211.Equally, I have had regard to the respective health of the parties including the husband’s statement that he is in good health and the wife’s problematic health as set out in Dr R’s reports.

212.Dr R said the wife suffered from a fluctuating condition characterised by dysthymia, which is consistent with but not diagnostic of a Personality Disorder but not otherwise specified.  Dr R said that the instability of mood has in the past been situational and exacerbated by episodic alcohol and cannabis abuse.  He said that the disturbance would appear to have abated substantially since separation from the husband in 2008 and that the appropriate diagnosis used in DSM IV criteria is of Mood Disorder due to a general medical condition. The condition had been complicated by the wife’s alcohol and cannabis use and interpersonal factors.

(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

213.The husband works part time, about thirty one hours per week and earns about $750 per week.  On his evidence his income is likely to increase over the immediate to medium term future.

214.The wife is a student. She is enrolled as a full time student studying nursing.  She will complete that course in July next year and will be able to earn an income of between $40,000 and $50,000 per annum.  The wife has had some emotional health difficulties in the past but is presently managing those difficulties quite well.  I accept her evidence in that regard.

215.The wife will not be able to work in the nursing industry on a full time basis until July 2011, provided she passes her examinations.  She will then be entitled to an income of $40,000 per year.  She says she only wished to work part time but having regard to the orders I have made in terms of parenting there is no reason why she cannot work full time.

(c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

216.The husband says that there ought to be a significant adjustment in his favour, if his parenting case is successful, in terms of his care of the children.  The children will be in the husband’s care more than that of the wife.  However, the difference is relatively minor.  I have had regard to that difference.  

(d) Commitments of each of the parties that are necessary to enable the party to support:

(i)   himself or herself; and

(ii)a child or another person that the party has a duty to maintain;

217.The husband has a commitment to support himself and the children.  The wife has a commitment to support herself and the children.  I have discussed earlier in these reasons that the husband also has a responsibility to care for Y until his eighteenth birthday.

(e) The responsibilities of either party to support any other person; and

218.The husband has re-partnered but as of January this year they no longer live together due to the stresses of the litigation.  The wife is in a new relationship with a person whom she has known for a number of years.  Her partner is supportive of her.

(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

219.This is not a relevant consideration in these proceedings.

(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

220.The parties’ financial circumstances have deteriorated since separation and I have had regard to the factor.

(j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

221.This is not a relevant consideration in these proceedings.

(k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

222.This is not a relevant consideration in these proceedings.

(l) The need to protect a party who wishes to continue that party's role as a parent; and

223.Under the parenting arrangements I propose to put in place the husband will have a greater responsibility in terms of the care of the children.  However the children will still significantly live with and spend significant time with the wife.

(m) If either party is cohabitating with another person the financial circumstances relating to the cohabitation; and

224.The wife is in a new relationship but with a person whom she has known for a number of years.   Her partner is supportive of her.

(n) The terms of any order made or proposed to be made under section 79 in relation to:

(i)   the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party;

225.I have had regard to the orders I propose to make.

(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

226.The wife will pay some child support when she commences to work as a nurse. There was no evidence of the amount.

227.Under the parenting arrangements I have put in place in the orders I am going to make, the husband will have a greater responsibility in terms of the two children.  However, the children still live significantly and spend substantial time with the wife and the husband’s evidence, which I accept, is that he will from time to time ask the wife to assist in areas where he is not able to do so.

228.The husband works thirty one hours per week and is able to work longer hours when the children are in the care of the wife.  His business is also growing.  I am satisfied that the parents have the same income earning capacity and I am equally satisfied that they will apply the same effort (although differently for a few days during school term). 

229.Having regard to all of the facts and circumstances of this case I do not intend to make any adjustment in favour of one party or the other in respect of the other factors.

JUST AND EQUITABLE

230.The husband will retain the following property:-

Property at T (agreed value)	$375,000
Husband’s Carlton Guernseys and guitar (agreed)	$4,500
Second CBA cash investment account subsequently expended by husband	$0.00
Commonwealth Bank investment (controlled by husband)	$1,115
Husband’s interest in S partnership	$40,314
2005 Ford Falcon motor vehicle – husband’s car (agreed value)	$9,450
Husband’s Connect Super and Synergy superannuation	$22,327
CBA Mortgage	($170,828)
Net Asset Balance	$281,878.00

231.The wife will retain:-

2004 Holden Commodore (wife’s car)	$6,200
Proceeds of CBA shares	$0.00
Wife’s superannuation with various funds	$18,131
CBA visa card	($12,413)
Telstra debt	($400)
Paypal Debt	($10,113)
Total Net Balance	$1,405.00

232.If the husband pays to the wife $140,236.50 his net assts will be $141,641.50. The wife’s property will be the same. Having regard to the contributions and other factors and having considered what is just and equitable it seems to me that an equal division of funds between the parties is the appropriate step.

233.Counsel for the husband submitted that if he could not raise the funds to purchase the wife’s interest in the home then it ought to be sold and the proceeds divided in accordance with the terms of the order.  The wife’s counsel submitted that because there was going to be a delay to enable the husband to refinance the mortgage and that he would have the exclusive occupation of the home he should have the risk as to the value.

234.The impact of the order that I will make is that the husband effectively has two months to refinance the mortgage.  Having regard to all of the facts and circumstances I am satisfied that it is reasonable for the default provision to provide that the husband pays the wife the amount determined under these orders in the event that he is unable to refinance the loan.  If there is a greater sum of money or lesser sum of money then that is a matter for the husband.

I certify that the preceding two hundred and thirty four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 3 September 2010.

Associate:     

Date:  3 September 2010