C and M
[2008] FCWA 21
•19 FEBRUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: C and M [2008] FCWA 21
CORAM: THACKRAY CJ
HEARD: 19, 20 & 21 DECEMBER 2006,
23 MARCH 2007, 16 MAY 2007,
12 JUNE 2007, 21 NOVEMBER 2007,
15 & 16 JANUARY 2008
DELIVERED : 19 FEBRUARY 2008
FILE NO/S: PT 4662 of 2005
BETWEEN: C
Applicant/Husband
AND
M
Respondent/Wife
Catchwords:
CHILDREN - With whom a child spends time - children aged 7, 6, and 3 - where child has been physically abused - supervision - children not to come into contact with mother's partner
CHILD ABUSE - Physical abuse
PROPERTY SETTLEMENT - Contributions - compensation payments
Legislation:
Family Law Act 1975 - ss 60CC, 65DAA, 75(2) and 79
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr S Jones, Mr B Kearney
Respondent: Mrs E Brownlie, Mr W Allen
Independent Children's Lawyer : Mr D Whittle
Solicitors:
Applicant: Rattigan Kearney & Bochat
Respondent: Allen & Jasnic
Independent Children's Lawyer : Paterson & Dowding
Case(s) referred to in judgment(s):
Aleksovski v Aleksovski (1996) FLC 92-705
B & B
Family Law Reform Act 1995 (1997) FLC 92-755
Goode & Goode (2006) FLC 93-286
1I am required to resolve disputes between [the husband] and [the wife] in relation to their three young children, [Kim], [Tina] and [Elise]. I am also required to determine a dispute concerning division of their property.
Brief background
2[The husband] is 34 years of age and has part-time work as [tradesman]. [The wife] is 27 years of age and is a full‑time mother.
3[The husband] and [the wife] met in 1997, when [the wife] was only 17. They began living together almost immediately and [the wife] soon fell pregnant. Their baby girl, [Helena], died tragically in a motor vehicle accident in June 1999. [The wife] was just three weeks pregnant with [Kim] at the time of the accident. He was born in February 2000, followed by [Tina] in October 2001 and [Elise] in July 2004.
4[The husband] and [the wife] were married in November 2003. They separated in August 2005 when [the wife] left [the matrimonial home], taking the children with her. There was immediate disagreement about where the children should live and [the husband] commenced court proceedings. Agreement was reached about care arrangements for the children pending further hearing. Essentially [the wife] had the children during the day and [the husband] had them at night. Weekends were shared.
5After the separation, [the wife] initially lived with her brother in [a southern suburb]. She then rented a home [in another suburb], near to [Kim]’s school. She could not afford to pay the rent and in January 2006 she moved into her father’s home in [the town].
6In December 2005, [the wife] commenced a relationship with [Mr D]. [Mr D] is about 32 years of age and lives in [a country town], where he works as a [leading hand]. He and his family are long-term residents of the [ country town]. He is separated from his former partner, with whom he has four children (who were aged 4 to 11 years at the time the trial commenced in December 2006). His children live with their mother but have contact with [Mr D] each alternate weekend and during school holidays.
7Soon after meeting [Mr D], [the wife] decided she wanted to live with him in [the country town]. She fell pregnant almost immediately, notwithstanding there had been no discussion about this and arrangements about the care of [her children] were still in dispute. [The wife] then began spending as much time in [the country town] as circumstances permitted and she took her children to [the country town] whenever she could. The baby from her new relationship, [Sharron], was born in September 2006.
8At the time the trial commenced in December 2006, [the husband] was spending a lot of time with his 21 year old girlfriend, [Carla], with whom he had commenced a relationship in early 2006. [Carla] had a five year old daughter. By the time the proceedings finally concluded in January 2008, [the husband] and [Carla] had split up and [the husband] had commenced a new relationship.
The parties’ relationship
9[The husband] and [the wife] painted very different pictures of their relationship prior to the separation. I am satisfied there is considerable substance in the allegations each made about the other’s poor behaviour. It must, of course, be kept in mind that [the husband] and [the wife] were completely devastated by the death of [Helena] early in their relationship. However, I am not convinced that the way each of them behaved was entirely attributable to this traumatic event.
10I find that [the husband] was frequently aggressive and abusive towards [the wife]. He was a jealous and controlling partner. He also consumed alcohol to excess. In this regard it is noted he now has three convictions for drunk driving – and it is further noted that on the last occasion he was stopped for drunk driving he endeavoured to evade the Police. [The husband] denied that he had smoked marijuana during the relationship, although he admitted he had smoked it when he was much younger. Had the rest of his testimony been more reliable I might have been inclined to believe him, but I was left in doubt on this issue.
11I find that [the wife] was also abusive towards [the husband] when they were together. The parties engaged in repeated verbal altercations, without any regard to whether the children were present. I find that [the wife] (whether by reason of depression or personality) was quite lazy and frequently neglected the care of the home and the children. I find that she was short-tempered with the children. She was prone to yell at them and engaged in physical discipline such as slapping and pulling their ears.
12[The husband] endeavoured to give the impression he had not worked much since the accident in 1999. He claimed he was at home a lot of the time and primarily responsible for the care of the children and the household. I am inclined to believe that [the husband] worked to a greater extent than he was prepared to acknowledge (and did not want to disclose this because most of the income he earned was “black money”). I therefore do not accept that he was involved in the supervision of the children to the extent he claimed, although I accept that he was not engaged in full-time employment. I also accept that he would frequently be called home from jobs by [the wife], who was often simply not able to cope with the care of the children. On those occasions, [the husband] would step into the breach by helping to care for the children and getting the household back into some kind of order. [The husband]’s mother also provided significant assistance in keeping the household running.
The grandparents
13[The husband]’s parents came to Australia from [overseas] when he was very young. They are now in their early 50s and live near to the [matrimonial home]. [The husband]’s mother works with [children]. There was little said about [the husband]’s father during the proceedings. He did not swear an affidavit and he was the only grandparent who was not interviewed by the Single Expert. Allegations made by [the wife] in her affidavit of October 2005 concerning serious domestic violence perpetrated by [the husband]’s father against [the husband]’s mother were never pursued.
14[The wife]’s father, [Mr M], came to Australia from [Europe] about 40 years ago. He married [the wife]’s mother, [Mrs L], who is an Australian. They separated when [the wife] was about 12 years of age. [Mr M] now lives alone in [the town]. [Mrs L] lives in [the hills] with her [second husband]. [The husband] made serious allegations earlier in the proceedings concerning [Mr L], but these were never pursued.
History of proceedings
15[The husband] commenced proceedings in August 2005, immediately after the separation. Agreement was quickly reached about an interim sharing arrangement for the children. They were to stay with [the wife] from 8.00 am to 4.00 pm each weekday and from after school Friday to Sunday afternoon each alternate weekend. The children were to reside with [the husband] at all other times – i.e. he had them every night of the week and each alternate weekend. The order provided that the children were to sleep at the home of [the wife]’s father when they were with [the wife] overnight.
16The matter was expedited and listed for trial in February 2006; however, the parties agreed to vacate that date and the matter was then listed for trial in July 2006. The parties were sent to counselling on the first day of trial before Tolcon J in July 2006, but were unable to reach agreement. The matter came back before Tolcon J on the following day, but his Honour declined to hear the matter, believing it was necessary for the children to have separate legal representation. Legal Aid initially refused to appoint an Independent Children’s Lawyer, but relented after further representations.
17When the matter came on for trial before me in December 2006, the Independent Children’s Lawyer advised the Court that he had no evidence to lead and said he had no useful function to fulfil in the proceedings. He was discharged from further involvement and the trial proceeded. After a three day hearing I reserved my decision. I made orders for the parties to share the care of the children during the 2006/07 summer school holidays and ordered that after the end of the holidays the previous caring arrangement be reinstated pending judgment.
18I was not at all attracted to [the wife]’s proposal made at the end of the trial in December 2006 that the children live with her in [a country town] pending judgment on the basis she would drive to and from [the town] every day during the school week. She had been making the same journey herself every day for the best part of a year but it seemed undesirable – quite apart from any other considerations – that the children be subjected to that amount of travel (nearly 300 kilometres a day), even pending judgment.
19On 12 March 2007, [the husband] filed an application to reopen the proceedings, making claims concerning physical abuse of the children, and in particular [Elise], who had been badly bruised on the last occasion the children had been with [the wife] and [Mr D]. [The wife] responded to [the husband]’s application by seeking an order on a “without admission as to need basis” that she be restrained from allowing the children to come into contact with [Mr D], but that otherwise the contact be reinstated. She also sought make-up contact to compensate her for the time she had lost with the children when [the husband] terminated the contact visits. [Mr D] was subsequently charged with aggravated assault on [Elise] and he ultimately pleaded guilty. The criminal proceedings against him attracted significant publicity.
20When the matter came before me on 23 March 2007, I suspended all previous orders and made an order for the children to live with [the husband]. I also determined that until further order, the children spend time with [the wife] from 9.00 am until 5.00 pm each Saturday and Sunday (on the basis that the contact be exercised in and around the [the town] area). An order was made restraining [the wife] from physically disciplining the children or allowing them to come into contact with [Mr D]. The Independent Children’s Lawyer, who had previously been discharged, took part in the hearing on 23 March 2007 and in all subsequent hearings. At the conclusion of that hearing the proceedings were adjourned to await the outcome of further investigations.
21[The wife] then filed an application in May 2007, seeking make-up time with the children after [the husband] had failed to make the children available pursuant to the orders made in March 2007. This followed allegations that [Elise] had been excessively shaken by [the wife] during a contact visit. [The husband] responded to the application by seeking the discharge of the interim contact orders and for an order that any time [the wife] spent with the children be supervised.
22When the proceedings came before me again on 12 June 2007, the existing orders for contact were discharged and orders were made instead for contact to take place each Sunday from 9.00 am to 5.00 pm supervised by [the wife]’s mother, as well as contact for an unspecified period each Saturday supervised by Mother Hen. (The time to be spent with the children on Saturdays would depend upon availability of supervisors and the ability of the parties to meet the costs.) The order provided for the parties to contribute equally to the cost of the Mother Hen supervision and for [the wife]’s mother to pick up and deliver the children from [the husband]’s residence for the Sunday contact.
23In July 2007 the Independent Children’s Lawyer made application for the appointment of a Single Expert. In August 2007 an order was made for the appointment of [Ms E], a Clinical Psychologist, as Single Expert. Her report was distributed to the parties in October 2007 and the matter was relisted before me in November 2007.
24At the hearing on 21 November 2007, I was called upon to determine a dispute as to whether or not [the wife]’s father would be able to supervise contact on Christmas Eve. I took some brief evidence from [Mr M] and decided that he could act as supervisor on this one occasion, subject to some stringent conditions.
25By this stage, the matter had been back before the Court on many occasions after the initial trial. None of the evidence provided by the parties since trial had been tested, nor had the Single Expert been subjected to cross-examination. I determined that it was appropriate that the matter be brought back on for a further substantive hearing. The matter was accordingly listed for trial on 15 January 2008. At the resumed hearing, [the husband]’s former girlfriend, [Carla], was recalled to give further evidence and the Single Expert was cross-examined. [The wife]’s mother also gave some brief additional evidence concerning her availability to supervise the contact arrangements. After hearing further submissions, I again reserved my decision.
Affidavits relied upon
26The parties filed a plethora of affidavits prior to the original trial in December 2006. At that time, [the wife] relied “only” upon her affidavits sworn 25 October 2005, 23 March 2006, 29 June 2006 and 5 December 2006. [The husband] relied only on his affidavits sworn 20 June 2006 and 4 December 2006. [The wife] initially relied on affidavits of two longstanding friends, but neither of these was presented for cross-examination and I have not taken their evidence into account. [The husband] relied on affidavits of witnesses who were not required for cross-examination and I have taken their evidence into account (noting that the affidavit of [Ms JC] was not relied upon).
27By the time the matter came on for the final hearing in January 2008, the parameters of the dispute had narrowed significantly. Both counsel and the Independent Children's Lawyer elected not to cross-examine either [the wife] or [the husband] on the many further affidavits they had filed since the trial “concluded” in December 2006. I have nevertheless had regard to those affidavits, keeping in mind that they remain untested.
Credibility
28It is important I make some observations in relation to the credibility of the parties and their witnesses, since my impression of the accuracy of their testimony has affected the findings I have made and the orders I propose to make. The findings set out below are critical of both parties. In making these findings, I am conscious of the fact that both [the husband] and [the wife] are quite capable of presenting themselves as very different people to those I describe. Each of them has many fine personal qualities on which I am confident they will be able to draw as they mature. Both are good‑looking, well‑groomed and apparently pleasant young people who behaved in an exemplary fashion throughout numerous court appearances, many of which were conducted at times of enormous tension. In fact, it was somewhat surprising to see how little emotion each of them displayed throughout the proceedings.
29[The husband] endeavoured to portray himself in the best possible light, but I was unconvinced by his evidence concerning the way in which he behaved towards [the wife] during and after the relationship. His evidence concerning the assault on [the wife] on her Hen’s Night was contradicted by his own mother and [the wife]’s evidence on this point was corroborated by her mother. [The husband]’s outright denial of having written derogatory graffiti concerning [the wife] on a rubbish bin in [a country town] was directly contradicted by his girlfriend [Carla]. (Although [Carla] gave her evidence about the graffiti after she had broken up with [the husband], she was nevertheless in my view a balanced and reliable witness.)
30I gained the impression that [the husband]’s testimony was more reliable when he was giving evidence about the children and the way in which [the wife] cared for them during the relationship. Nevertheless, I did not accept all of his evidence concerning the children. I have already mentioned that I consider it likely he exaggerated the extent to which he was at home looking after them. I also find that in his affidavit evidence he attempted to minimise the extent to which [the wife] was involved in matters pertaining to the medical needs of the children. His own evidence in cross-examination and the medical records showed [the wife] was involved in the children’s healthcare to a much greater extent than he initially acknowledged.
31Although I considered there was substance in [the wife]’s allegations concerning [the husband]’s poor treatment of her, I did not otherwise find [the wife] to be a reliable witness. I gained the impression she was simply endeavouring to present herself in the most favourable light and to shield herself and [Mr D] from blame for their maltreatment of the children. I am satisfied that in her evidence she significantly minimised the extent of the physical discipline she and her new partner administered to the children.
32[The husband]’s evidence about [the wife]’s neglect of the children was strongly corroborated by a number of his witnesses. I was particularly impressed by the evidence given by [the husband]’s mother who appeared to me to have genuine affection for [the wife] and was prepared to make very substantial allowances for her behaviour in view of the trauma associated with the death of [Helena]. She was nevertheless forthright and critical of the way in which [the wife] had cared for the children.
33[The husband]’s brother-in-law, [Donald], was also an impressive witness. I found him to be a solid fellow, not given to hyperbole and was not shaken in his evidence that was also strongly critical of [the wife]’s care of the children. Similarly, his wife, [Maureen], presented as a reliable witness who corroborated the allegations concerning [the wife]’s poor standard of care of the children and inappropriate discipline of them.
34Save for [Mr D], whose credibility I will touch on later, I am satisfied that all of the other witnesses who were cross-examined did their best to give honest testimony and were anxious to assist me to come to the best decision for the children.
35[Carla] gave evidence on behalf of [the husband] at the first part of the trial and was then recalled to give evidence on behalf of [the wife] in the concluding stages of the trial. I found her to be a sensible young woman who gave balanced evidence on both occasions she was before the court. She did not seek out [the wife] to volunteer information after she and [the husband] broke up, but rather had a candid conversation with [the wife] when she bumped into her at the supermarket, which resulted in [the wife] then asking her to give further evidence.
36[The wife]’s mother, [Mrs L], presented as a mature, well intentioned woman who appeared to me to have some appreciation of her daughter’s shortcomings, whilst being generally fairly supportive of her.
37 [The wife]’s father, [Mr M], was not cross-examined on his brief affidavit at the original trial, but the evidence given in that document related entirely to [the wife]’s care of the children after the separation. When he was called briefly to give evidence at one of the later hearings, he presented as exceedingly supportive and protective of his daughter. I gained the impression he has a much less balanced view of [the wife]’s abilities as a parent than [the wife] ’s mother has.
Physical abuse of the children
38[The husband] has made complaints consistently during the proceedings concerning maltreatment of the children by [the wife] and [Mr D].
39The first complaint dates back to September 2005, after [the wife]’s first overnight contact visit with the children pursuant to the first set of orders. There is no doubt from the photographic evidence that [Tina] had a severe nappy rash at the time. [The husband] believes the rash occurred because [the wife] had failed to change [Tina]’s nappies, just as she had allegedly refused to change nappies before separation. [The wife] claimed that [Tina] arrived at her home at the commencement of the visit with the rash but she also claimed that the rash occurred as a result of [Tina] “holding it in”. I consider it more probable that the severity of the rash was the result of neglect by [the wife].
40[The husband] also complained in 2005 about [Kim] showing signs of having his ears pulled while with [the wife], and there was some photographic evidence to corroborate the allegation. Whilst it is not possible to be certain, given all of the other evidence it is quite possible that the injuries sustained to [Kim]’s ear were the result of inappropriate physical discipline by [the wife] or somebody else whilst the children were in her care.
41[The husband] made a variety of allegations concerning maltreatment of the children during 2006. These included being hit by [the wife]’s father and being bullied by [Mr D]’s children. In early January 2006, [Kim] allegedly returned from a contact visit with a severely bruised arm and would not say what happened. In June 2006 he was again returned with a bruise, which resulted in [the husband] taking him to hospital and a report being made to the Department of Child Protection (“DCP”).
42At the time, there was little way of assessing whether or not anything untoward was, in fact, happening to the children during contact visits. Whilst it was possible that the children were being poorly treated, there was also the possibility (in the context of a highly acrimonious dispute) that [the husband] was either manufacturing claims or misinterpreting innocent injuries.
43Apart from the allegations of physical maltreatment, [the husband] had a number of other concerns about the way in which [the wife] was caring for the children whilst in her care. He was worried because he believed that [the wife] continued to smoke cigarettes in the car whilst the children were with her. He was particularly concerned that it appeared [the wife] allowed the children to travel without wearing seatbelts or other forms of restraint. Given that [Helena] had died whilst unrestrained in a motor vehicle, this was a matter of particular concern. [The wife], however, denied the allegations, although there was photographic evidence which tended to corroborate the allegations concerning the children travelling unrestrained.
44The allegations concerning maltreatment of the children continued after the first part of the trial concluded in December 2006. [The husband] claimed that in late January 2007, [Elise] had a “significant bruise” on her leg after return from her mother’s care. [Tina] allegedly told [the husband] that [Mr D] had hit her. [The husband] took [Elise] to the hospital and reported the matter to DCP but he understood that no action was taken other than that departmental officers spoke to [the wife]. In an affidavit sworn subsequently, [the wife] claimed it was she who had smacked [Elise] in late January 2007, which had resulted in the bruising [the husband] had observed.
45[The husband] also alleged that after contact on the weekend of 10 and 11 February 2007, [Tina] informed him that [Mr D] had rubbed [Elise]’s faeces in her face after she had defecated in the kitchen. [The wife] denied this had ever occurred.
46[The wife] had the children again on the weekend of 3 and 4 March 2007. At the end of the contact visit, [the wife] told [the husband]’s mother that [Elise] had a “small bruise” on her back and that there was no need to take her the hospital. She said that [Elise] had fallen off a trampoline. ([Kim] later told [the husband] that [the wife] had also told him to say that [Elise] had fallen off a trampoline.) In fact, [Elise] had been hit by [Mr D]. It was for this assault he was later charged and convicted. Photographs showed severe bruising on the small of [Elise]’s back and on her upper right thigh. [The husband] also claimed that [Elise] had a “significant hand bruise around her ankle” at that time. He said [Tina] had told him that [Mr D] had held [Elise] by her ankle and had belted her, before throwing her onto a bed after [Elise] had again defecated on the floor. [Tina] also allegedly said that [the wife] was present throughout the incident and did nothing. [The husband] took [Elise] to Princess Margaret Hospital and DCP was informed. [The husband] was advised to suspend [the wife]’s contact, which he sensibly did.
47[The wife] later changed her story about what had happened to [Elise] on the weekend in question. She claimed [Elise] was refusing to settle when she was put to bed and kept crying and getting out of bed. After she had come out of bed on seven to eight occasions, [Mr D] allegedly held her by the arm and smacked her twice on her nappy. [The wife] said the smack “did not appear hard or severe” and it was the first time that [Mr D] had physically disciplined any of the children. She claims she then put [Elise] back to bed and that she stopped crying after a couple of minutes. She denied that [Elise] had any bruising on her ankle. She also denied that [Elise] had ever defecated on the floor.
48[The husband] also gave evidence he had been told by the children that on one occasion [Mr D] had also hit [the wife] , as a result of which she left [a country town] and went home to [the town] with the children. [Mr D] was reported as saying, “I don’t want these fucking children in my house”. [The wife] denied that [Mr D] had ever been physically violent towards her or said he did not want the children in his home. Given her lack of credibility and previous attempts to protect [Mr D], I was not convinced by this testimony. I think it worth recording that in the draft judgment I prepared immediately following the first part of the trial (i.e. before these allegations emerged), I observed that [Mr D] gave the impression that he would not tolerate a wife who did not live up to his expectations in caring for his home.
49The allegations of physical abuse of the children continued, even after the contact orders were varied in March 2007. [The husband] claimed that the older children had informed him on 22 April 2007 that [the wife] had shaken [Elise] “severely” when she had them for contact the previous day. He nevertheless allowed contact to continue until 19 May 2007 when he claimed that his mother observed at the conclusion of a contact visit that [Elise] was “droopy and floopy” [sic] to such an extent that she was unable to stand. [The husband] claimed that [Elise] did not communicate or respond to him for about 1½ hours after she returned from the visit and he took her straight to the hospital. The hospital records contain the following notes:
“Alleged physical abuse by mother today. Father states the child was holding right neck and very quiet after she picked up from mother’s custody. Siblings also state that child was shaken by mother.
…
Interviewing oldest sibling of alleged victim. He was able to describe in detail that [Elise] was lifted by mother and shaken for several seconds.”
50There was some doubt as to whether the medical notes recorded what [the husband] had reported concerning what the children had told him – or whether they recorded what the doctor had been told directly by the children. [The husband] advised through his counsel that the children had spoken directly to the doctor but the doctor was not called to give evidence. In any event, the records went on to note that [Elise] was being referred to a paediatrician “for management of post-traumatic stress disorder”.
51[The husband] refused [the wife] any further contact with the children after 19 May 2007, acting on advice from the hospital and DCP. It was these further allegations that led to orders being made for any future contact to be supervised.
52I received no evidence from DCP officers concerning the outcome of any investigations that have been made into the various allegations concerning maltreatment of the children (save for a report provided to the Court in 2005, which was the first time the family had dealings with DCP). [The wife] did, however, produce a letter from DCP dated 23 November 2007 addressed to her and [Mr D] concerning the investigation of a child maltreatment allegation relating to their young daughter, [Sharron]. No details were provided concerning the nature of the alleged maltreatment – and indeed it may be the case that no specific allegations had been made and DCP was simply carrying out a routine investigation in light of the assault on [Elise]. In any event the letter indicated that the investigation had found that the allegation was “not substantiated”. The letter went on to congratulate both [the wife] and [Mr D] for how they had “worked with the Department and other Agencies in regard to these concerns”. The letter also noted that a departmental officer believed [the wife] and [Mr D] might benefit from some step‑parent training and asked them to telephone a named person to organise this. [The wife] was planning to follow through on this when the matter came before the Court for the final time in January 2008.
The Single Expert’s report
53 [Ms E], the Single Expert, reviewed all relevant documentation and met or spoke with the parties and other significant adults – including [the wife]’s mother and father, [the husband]’s mother, [the husband]’s current girlfriend, [Mr D] and [Mr D]’s former partner. She also saw each of the children in different settings and observed their interactions with their parents. She then provided a comprehensive and most helpful report. In the following paragraphs I will highlight some of what I perceived to be the more significant matters arising from her report.
54[The wife] told the Single Expert that on the occasion when [Elise] was badly bruised, she had become frustrated with her because she had been crying for a long period of time and that she had smacked her. It was only after she had done this that [Mr D] became involved. [Ms E] noted that when [the wife] was discussing [Elise]’s injuries “she minimised [Mr D]’s role stating he did not realise his own strength and showed little insight into or understanding of the psychological and emotional impact the incident had on the child, mentioning her as an afterthought”.
55[Mr D] acknowledged to the Single Expert that “he harmed [Elise]” and stated that her constant crying and not settling led him to snap and give her a couple of smacks. He said he did not condone his behaviour and that it will never happen again. [Mr D] also informed the Single Expert that he would be attending an “anger management evening” in October 2007 and had commenced counselling on a fortnightly basis in the few weeks prior to meeting the Single Expert.
56The Single Expert considered that [the husband] demonstrated a loving and secure relationship with the children and was able to identify and provide adequately for all of their needs. She did express a “word of caution” that [the husband] “may unintentionally expose the children to stress and trauma through repeated and potentially intrusive physical examinations”. She went on to note that there were a number of issues which she considered “to be emotionally damaging to the children”. She found that [the husband] had a “negative and hostile attitude towards [[the wife]” and considered that this affected his ability to provide for the children’s emotional needs “to the degree that he makes negative comments” about [the wife] to the children.
57The Single Expert considered that [the wife]:
projected herself as able to manage the day to day demands and stressors of life. However she appeared to be lacking confidence in her parenting at times when interacting with the children. The incident involving [Elise] demonstrated that when she becomes very frustrated she is likely to use physical punishment.
58The Single Expert said that [the wife] had stated that “[Elise] would cry constantly when at [Mr D]’s house, that she was not comfortable there, did not like his children because they bullied her, that she would scream if [the wife] left the room and that this behaviour drove everyone mad”. The Single Expert noted that [the wife]’s demeanour:
did not suggest any sense of concern for [Elise]’s well‑being in the situation and raises concern about her ability to identify and adequately provide for [Elise]’s physical, emotional, social and intellectual needs and therefore potentially for the other children.
59The Single Expert noted that [the wife] was not on speaking terms with [the husband] and “describes him in derogatory terms to the children”. The Single Expert did not say on what basis she made this statement but nevertheless said that if [the wife] continued with this behaviour it would affect her capacity to provide for the emotional needs of the children. The Single Expert did, elsewhere in her report, note that the two eldest children told her that both parents make negative comments about the other parent but that it appeared that [the wife]’s comments were “significantly more derogatory” and that such comments would be likely to “elicit stronger loyalty feelings towards [the husband]”.
60The Single Expert noted that [Kim] was “easy and comfortable in his relationship with his father” and “projected a close, caring and loving relationship” with him. On the other hand she found that [Kim] demonstrated “a distant relationship” with [the wife], noting that while he “responded to her requests appropriately he did not seek her out for conversation or physical interaction, engaging predominantly with his maternal grandmother”.
61[Kim] told the Single Expert that his mother pretended to be nice when his grandmother or the Mother Hen supervisor were around, but when they were not she was “sometimes horrible and shouts at him and smacks him”. [Kim] said he wanted to live with his father because he is “nicer when no one is around”. He did not want to go to [a country town] because he did not like [Mr D] and the [D children] were “mean” to him and his sisters.
62[The wife] volunteered in one of her affidavits that after reading this part of the Single Expert’s report she had asked [Kim] whether or not he genuinely believed she was only nice when his grandmother or the supervisor were around. She claimed [Kim] said he did not really think this was true and that his father and grandmother had told him to say it. This was, in my view, a quite inappropriate conversation to have with [Kim] and says a great deal about the lack of insight [the wife] has concerning the possible impact of her behaviour on the children – not to mention the breach of the spirit of the order I had made earlier restraining both parties from discussing the Family Court proceedings with the children.
63[Tina] told the Single Expert that she wanted to live with both her mother and her father and that she missed her mother. She was however “very clear that she did not like [Mr D], stating that he is mean, does not let her and her siblings inside the house at times, and that he hurt her mother by pushing her and she nearly dropped [Sharron]”.
64[Tina] was seen by the Single Expert as interacting with [the husband] in a “relaxed, comfortable and easy manner demonstrating a secure, warm and loving relationship”. On the other hand during the observations with [the wife], the Single Expert noted that “[Tina] chose to be on her own or interact [predominantly] with her brother or with her maternal grandmother. Contact with her mother was minimal however she responded appropriately to her mother’s requests and comments”. The Single Expert concluded that [Tina] had a “secure and positive relationship with her father” but that her relationship with her mother was “conflicted”.
65[Elise] presented to the Single Expert as a “shy and timid little girl”. The Single Expert concluded that [Elise]’s relationship with her father was “comfortable and secure”, whereas her relationship with her mother was “tentative”. She said that whilst [Elise] was comfortable in seeking out her mother, she did not seek physical contact or interaction with her. She said that [the wife] appeared hesitant in interacting with [Elise] and she concluded that “the physical abuse that [Elise] sustained has had a significant impact on their relationship”.
66The Single Expert recommended that the children continue living with [the husband]. She also recommended that the children continue to spend time with [the wife] every second Saturday and every Sunday provided that the contact was supervised and took place at the home of [the wife]’s mother. She also recommended that the children have half of each school holiday period with [the wife], provided this also took place at the home of [the wife]’s mother and under supervision. Her recommendation was that these arrangements continue until [Elise] was “of school age”.
67In making these recommendations the Single Expert said that “the attachment and bond [the children] have with the mother needs to be strengthened through active engagement without the troubling presence of her partner”. She went on to say that in the long‑term it would be appropriate for the children’s time with [the wife] to be gradually increased to overnight every second weekend and an overnight stay during the week and eventually shifting to equal shared time. Whether contact could progress in this way, however would be dependent on [the wife]’s capacity to recognise and meet the children’s needs. It would also be dependent on [Elise]’s recovery from the trauma she has experienced and on progress in [Elise]’s language development to ensure that she was able to articulate her needs.
68The Single Expert was of the view that when all of these criteria had been met it would then be possible to introduce [Mr D] on a gradual basis to allow the children to get to know him and develop trust in him. Subsequently, [Mr D]’s children could also be reintroduced to the children. The Single Expert noted that it was important to understand that [Elise] may potentially be re‑traumatised should she be compelled to spend any time with [Mr D] and that she was too young to understand “any rationalisations that may be put to her as to her safety”.
69The Single Expert also recommended that:
•both parents access counselling to develop strategies and skills to enable them to conduct themselves in a positive manner towards each other. She in particular recommended that both parties explore any unresolved issues relating to [Helena]’s death that may impact on their attitudes towards each other.
•Both parties attend the Mum’s and Dad’s Forever programme if they had not done so already.
•[the wife] attend a Triple P parenting programme to assist her in developing skills in positive parenting.
•When [Elise] had concluded her current therapy for post-traumatic stress, an assessment be made to ensure that she was not experiencing any developmental delays, given that her language skills appear to be below average for her age.
•[Kim] and [Tina] access therapy to assist them to manage their “emotional and psychological processes in relation to the current family dynamics”.
70The Single Expert noted that the parties should be able to obtain a referral under the Medicare system so that most of the fees for the recommended counselling could be reimbursed.
Parenting orders originally sought
71The parenting orders sought by [the husband] at the time of the trial in December 2006 were set out in his original Form 1 application. He proposed that the children reside with him and have reasonable contact with [the wife]. At the commencement of the trial, [the husband] advised that provided [the wife] agreed to stay living in the [same] area, he would propose a shared care arrangement whereby in one week the children would reside with him for four days and with [the wife] for three days and in the following week the arrangements would be reversed. [The husband] was still advocating this outcome at the end of his oral evidence. However, at the conclusion of [the wife]’s evidence, [the husband]’s counsel advised that he had changed his mind and he now proposed that he have the children with him for the majority of the time, with [the wife] having regular contact.
72The orders sought by [the wife] at the time of trial in December 2006 were contained in her Minute filed in July 2006. She proposed an order for shared parental responsibility and that the children live with her. Her application was based on the assumption that she would be living in [a country town] with the children and she proposed that the children would spend two out of every three weekends with [the husband]. During the course of the trial she said she would agree to the children spending every weekend with [the husband]. She proposed that the school holidays be shared.
Position at time of final trial in January 2008
73By the time the matter came on for the final part of the trial in January 2008, [the husband] and the children were still living in the former matrimonial home. [The husband] had a new girlfriend but was not living with her. [The wife] was living full‑time with [Mr D] in [a country town] and [the wife] and [Sharron] were coming to Perth each weekend to spend time with [her children]. The visits were occurring each Sunday under the supervision of [the wife]’s mother and on Saturday each alternate week, as [the wife] could not afford to have the Mother Hen supervision every Saturday.
74Neither [the wife] nor [Mr D] had undertaken a parenting/step-parenting program. [Kim] and [Tina] had been attending counselling with [a regional agegncy]. They had attended on eight different occasions between June and October 2007 and the counselling was complete. [Elise] was continuing to see a specialist related to her post-traumatic stress disorder and [the husband] was proposing that she continue with her treatment for as long as was deemed appropriate.
75[The husband]’s motor vehicle licence had been returned to him and he was planning to continue to work on at least a part-time basis in 2008 as he had borrowed a lot of money from his parents and needed to work. [Elise] had started in day care and it was proposed this be extended to two or three afternoons a week for two hours. [The wife] was not working and was engaged full‑time in caring for [Sharron]. [The wife] said that she and [Mr D] were planning to get married in March 2008.
Parenting orders finally sought
76By the time of the trial in January 2008, [the wife] and [the husband] were in agreement that I ought not make orders finalising future care arrangements for the children but rather should make interim orders, subject to review at a later stage. It was common ground that the children should predominantly reside with [the husband] and that [the wife] should have only supervised contact.
77The only matters on which I was ultimately asked to rule were the following:
•Whether I should make an order for sole parental responsibility in favour of [the husband], as proposed by him, or whether I should make an order for equal shared parental responsibility, as proposed by [the wife] (noting her fallback position that any order giving [the husband] sole parental responsibility should be on an interim basis only).
•Whether the order for residence in favour of [the husband] should be made final, as he proposed, or be made until further order, as [the wife] proposed.
•Whether [the wife]’s time with the children should be supervised only by her mother, as proposed by [the husband], or whether her father should also be permitted to act as supervisor, as [the wife] proposed.
•Whether [the wife]’s time with the children should be limited to daytime contact on Saturday and Sunday of each alternate weekend, as proposed by [the husband], or whether it should be for two out of every three weekends from 5.00 pm Friday to 5.00 pm Sunday plus one half of school holidays, as proposed by [the wife] .
•Whether the full review of the proposed care arrangements should occur at the end of 2008, as proposed by [the wife], or be delayed until [Elise] commences school in 2010 (or at the very earliest, pre‑primary), as proposed by [the husband].
78At the conclusion of the hearing I asked the Independent Children’s Lawyer to provide me with a Minute of the Orders he proposed should be made. I received the Minute on 29 January 2008. It proposed the following orders:
•A final order for [the husband] to have sole parental responsibility.
•Until further order, the children to spend time with [the wife] each alternate Saturday and Sunday from 9.00 am to 5.00 pm.
•The Single Expert to prepare a report as soon as practicable as to whether or not it was appropriate for the children to spend overnight time with [the wife] and for both parents to comply with any recommendations made by the Single Expert in that regard. (In the event of the Single Expert so recommending, the children to spend time with [the wife] each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday and for one half of the school holidays and such other times as may be agreed.)
•All time spent by the children with [the wife] to be supervised by the mother or by such other person or persons as might be agreed between the parties from time to time.
•The two grandmothers to share responsibility for the transportation to and from the maternal grandmother’s home for the purposes of contact.
•[The wife]’s mother or any other person supervising contact to ensure that the children are not physically disciplined or shaken and not to have contact either directly, electronically or by telephone with [Mr D] (and that in the event of the breach of these arrangements the children’s visit with [the wife] to be terminated.)
•The parents to each provide to the Independent Children’s Lawyer and to the other parent any documents evidencing the completion by them of any of the courses recommended by the Single Expert in her report and for the parents to attend and have the children attend those courses.
•Both parties to have liberty to relist the proceedings after 1 February 2009.
Applicable law
79These proceedings fall for determination under the Family Law Act1975. In coming to my decision, I will be guided by the relevant objects of that Act and the principles underlying them. The objects state that the best interests of children are met by:
•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;
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
80These objects are more comprehensive than the one stated object of the legislation prior to the 2006 amendments. Before those amendments, the stated object was:
“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
81The first of the four new objects of the Act is far from novel. It echoes two of the guiding principles previously found in the legislation, namely:
•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
•children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…
82The Full Court of the Family Court of Australia has previously considered the impact of amendments dealing with the stated objects of legislation relating to children of a marriage. It did so in B & B: Family Law Reform Act 1995 (1997) FLC 92-755 (“B & B”), where the Court was dealing with the 1995 amendments to the Family Law Act1975. In the course of its judgment in B & B, the Full Court said at [9.2]:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
83Notwithstanding the changes brought about by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in MallettvMallet (1984) FLC 91‑507; (1984) 156 CLR 605 and ZPv PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
84It will be noted that the Full Court made many references in this citation to s 65E of the Family Law Act1975, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the legislation. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramouncy provision defines the essential issue and the Act still contemplates individual justice.
85The Full Court of the Family Court of Australia has said in Goode & Goode (2006) FLC 93-286 that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 60CC(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil) his or her responsibilities as a parent.
86In enacting the 2006 amendments, Parliament has given legislative voice to what was already a presumption that responsibility for decision making about children should ideally be shared between parents. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
87If I make an order that [the husband] and [the wife] have equal shared parental responsibility, I would then be obliged by s 65DAA to consider whether or not the children spending equal time with each parent would be in their best interests and reasonably practicable. If such an outcome is found to be in their best interests and reasonably practicable I am required to consider making an order to provide for them to spend equal time with each parent. If for some reason I decide that such an order would not be in their best interests and/or not reasonably practicable, then I am required to consider whether or not the children spending “substantial and significant time” with each parent would be in their best interests and reasonably practicable. If such an outcome is found to be in their best interests and reasonably practicable, I am required to consider making an order to provide for the children to spend “substantial and significant time” with each parent. By virtue of section 65DAA(3), the children’s time with each parent would only be “substantial and significant” if it included days that do not fall on weekends or holidays (as well as weekends and holidays). The time must also be such as to allow each parent to be involved in the children’s “daily routine” and in occasions and events that are of “particular significance” to the children. Finally, the time must also allow the children to be involved in occasions and events that are of “special significance” to each parent.
Contributions
155I have already noted the modest assets owned by [the husband] at the commencement of the relationship and the fact that [the wife] had no assets of substance.
156[The wife] was working in a supermarket at the time the parties met but soon gave up work and thereafter had no paid employment. The only income she received was Centrelink parenting payments.
157[The husband] was a self employed [tradesman]. He did not work on a full-time basis, particularly after the accident in 1999. I have indicated already, however, that I believe that he worked to a greater extent than he acknowledged in his evidence. As most of his income was not declared, I am unable to determine how much he might have earned.
158Both parties were involved to some extent in the care of the children and the running of the home. I have found that [the wife] was fairly indolent but I nevertheless accept that she did supervise the children, particularly when [the husband] was at work, and I also accept that she did some of the home duties from time to time. [The husband] also was involved in the supervision of the children and he too did some of the housework and received some assistance in this regard from his mother.
159Following the separation, [the wife]’s only income was from Social Security. I have noted above that [the husband] received most of the Social Security entitlements to which the family was entitled following the separation. [The husband] also had part-time employment in a [store] and subsequently returned to [his trade]. His work as a [tradesman] was very well paid. Presumably the funds from this work went towards payment of some of his legal fees. I note also that [the husband] incurred a $3,000 fine after separation for drunk driving and would have had fines during the relationship for his earlier driving convictions.
160Both parties have been involved in the care of the children since the date of separation. Initially, [the wife] was mainly looking after them during the day and on half the weekends, while [the husband] was looking after them in the evenings and on the other weekends. After the assault on [Elise], however, [the husband] undertook a much greater role in supervising or arranging the supervision of the children.
161[The husband] did the gardening and house maintenance. He also claims he undertook work in improving the [matrimonial home] property which was not in good condition at the time it was acquired. No evidence was provided to indicate to what extent this work may have improved the value of the property.
162The major injection of funds during the relationship came from the compensation monies the parties received following the accident. Were it not for that, it is apparent the parties would have little, if anything, to divide between them. [The husband] asserts that he should receive greater credit for the compensation funds because his settlement was approximately three times the amount of the settlement received by [the wife].
163Apart from the issue of the compensation payments, I was inclined to consider that [the husband]’s contribution during the course of the relationship was of somewhat greater value than [the wife]’s. He was the only partner in the relationship who was earning any money and he also was fairly heavily involved in the care of the children and the management of the home.
164The question of the weight to be given to the contribution of the damages monies is, however, a little more problematic. It is the case, as was stated by Baker and Rowlands JJ in Aleksovski v Aleksovski (1996) FLC 92-705 at 83,437 that a damages verdict arising from a personal injury claim is to be treated in most cases as a contribution by the party who suffered the injury. However, their Honours went on to say that the damages “should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.”
165In the present case, of course, both parties were involved in the accident and both suffered the tragedy of the loss of their then only child. It seems likely that [the husband]’s injuries were greater than [the wife]’s injuries but I consider it reasonable to infer that he received a greater award of damages than [the wife], at least in part because he had been working whereas [the wife] had been home looking after the baby. Presumably it was submitted on his behalf at the time that he would suffer a reduction in income as a result of his injuries. If he did, in fact, have a reduction in income during the course of the relationship, the effects of this were felt as much by [the wife] as they were felt by him. There was no evidence to indicate that the injuries he sustained now have any ongoing impact on his income earning capacity. He has demonstrated that he is able to work at least part-time in a retail store and he has also demonstrated that he is able to work a sufficient number of hours as a plasterer to earn in the region of $1,000 per week.
166In all of these circumstances, I am not entirely convinced that it would be just to give [the husband] ‘credit’ for contributing three times as much of the damages award as [the wife] . On the other hand, there is no way logically to determine in what other proportions credit should be given for the contribution of the damages award. I can only proceed on the basis of a general impression created by quite inadequate evidence that [the husband] should be given somewhat greater credit than [the wife] because it does appear that he sustained a more serious injury in the accident than did [the wife]. The fact remains, however, that from the point of view of both [the husband] and [the wife], probably the most significant injury was the trauma associated with the death of an only child.
167Doing the best I can with what little evidence was provided, I have determined that contributions overall should be assessed as having been made in proportions 62.5% by [the husband] and 37.5% by [the wife] .
Adjustment for s 75(2) and other factors
168Both parties are still young. Both appear to be in good health. The marriage has affected their income earning capacity only to the extent that they have obligations in relation to the care of their children. Even taking those obligations into account, it is apparent that [the husband]’s income earning capacity is significantly greater than [the wife]’s, given that she has little education, little work experience and no skills whereas [the husband] has a trade (which, of course, he had prior to meeting the wife] ). [The wife] is currently living with [Mr D] who has a modest income, but earns sufficient to at least provide her with accommodation. Both parties are likely to end up with a significant liability for legal costs in one form or another.
169Apart from the disparity in their income earning capacity, the other s 75(2) factor of significance is the extent to which each party will be required to provide accommodation and care for the children in the future. It follows from my findings in relation to the children’s issues that I consider it likely that for the foreseeable future [the husband] will be providing for the children to a much greater extent than [the wife]. [The wife] shows no indications of obtaining any employment and, of course, still has a young baby to look after. She is unlikely to provide any child support of significance but on the other hand [the husband] is likely to receive social security entitlements to assist him with the children, especially as presumably he will continue where he can to work for “black money”.
170In view of the obligation that [the husband] will have to accommodate the children and to provide for their care, I consider that an adjustment of 7.5% of the asset pool in his favour on account of s 75(2) factors would be warranted.
171From the parties’ point of view, the significance of the s 75(2) adjustment is to be measured in monetary and not percentage terms. The 7.5% adjustment I have made in [the husband]’s favour amounts to $28,090, increasing the disparity between the parties’ share of the property pool by $56,180.
Just and equitable
172The final stage of the process of property adjustment is to step back and consider whether the overall outcome is just and equitable, having regard to the findings made concerning contributions and the s 75(2) adjustment. As Kay J pointed out in Aleksovski v Aleksovski (supra) at 83,445, this requires me to “look at the practical effects of the orders being made”.
173[The husband] appeared to anticipate that he would be able to afford to borrow the funds required to pay to [the wife] 25% of the asset pool. I am uncertain whether he will have the means to pay [the wife] the amount required to ensure she receives 30% of the asset pool, but hopefully he will be able to do so, as he could then retain the former matrimonial home as a home for the children.
174I consider that the proposed 70:30 division of the property in favour of [the husband] is just and equitable.
Orders
175Subject to hearing further from counsel I propose making the orders set out below. Although it was agreed during the course of the hearing that the furniture in the former matrimonial home should be divided between the parties, I anticipate this is likely to cause further disputation, especially in light of the fact that [the husband] may have been removing some items from the property. In any event, I would anticipate that [the husband] requires the furniture in order to provide an adequate home for the children, whereas [the wife] has established herself in [Mr D]’s home in [a country town] and will only be having [her children] overnight in the home of her mother. I have had regard to the fact that [the wife] will not be getting any of the furniture from the home in arriving at the proposed distribution of assets. In the event there is any item of particularly important sentimental attachment that [the wife] anticipated receiving in the proposed division of the furniture, I would be prepared to hear further brief evidence and submissions on that matter, since I have not given the parties any notice of my intention not to make an order for a physical division of the contents of the property.
1.Within 42 days the applicant shall pay to the respondent the sum of $116,350.
2.Upon payment of the said sum, any interest of the respondent in the following:
(a)[the matrimonial home]
(b)the applicant’s [motor vehicle];
(c)the trailer;
(d)the applicant’s savings; and
(e)any furniture and chattels in the possession of the applicant;
do vest in the applicant absolutely.
3.Upon payment of the same sum, the respondent shall withdraw at her expense any caveat registered by her in respect of [the matrimonial home].
4.Any interest of the applicant in the following:
(a)[the respondents’] motor vehicle]; and
(b)any furniture and chattels in the possession of the respondent;
do vest in the respondent absolutely.
5.Unless otherwise specified in these orders:
(a)each party be solely entitled to the exclusion of the other party to all property in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the beneficiary named therein;
(c)each party be solely entitled to the exclusion of the other to any money standing to the credit of such party in his/her name in any bank accounts;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.
6.There be liberty to apply in relation to implementation of the orders relating to property settlement.
7.All applications and responses, insofar as they relate to property settlement, be otherwise dismissed.
I certify that the preceding [175] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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