Calder and Andrews (No 2)

[2016] FamCA 56

FAMILY COURT OF AUSTRALIA

CALDER & ANDREWS (NO 2) [2016] FamCA 56

FAMILY LAW – CHILDREN – where the wife concedes the residence issue, seeks unsupervised time with the three children but fails to participate in proceedings.
FAMILY LAW – PROPERTY –  minimal property – no evidence from wife.

Family Law Act 1975 (Cth)

APPLICANT: Mr Calder

RESPONDENT: Ms Andrews

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 391 of 2013

DATE DELIVERED: 28 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 January 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brennan

Orders

1. That all extant parenting orders are forthwith discharged.

2. Subject to paragraph 3 of these orders, the response of the wife filed 20 February 2013 is dismissed.

3. The wife have liberty to apply to set aside these orders by application supported by affidavit setting out the reasons why she has not participated in the final hearing concluded this day.

4. The husband have sole parental responsibility for the children C born …2005, D born … 2006 and E born … 2008.

5. That the children live with the husband.

6. That any arrangement for time between the wife and the children be by agreement between the husband and the wife.

7. That the husband be at liberty to indicate to the wife that no contact arrangement between the wife and the children will be contemplated by him until such time as the wife has had a meeting with Dr F.

8. That save as provided by paragraph (10) of these orders, the wife is restrained by injunction from attending at any school at which the children are pupils.

9. That the husband authorise any school at which the children attend to provide to the wife at her expense, any document or information to which a parent of a child at that school would be entitled.

10. That notwithstanding the husband has sole parental responsibility and paragraph (8) of these orders, the wife may attend the school principal and teachers by arrangement with the principal for the purposes of participating in concerts, parent-teacher nights and other activities in which the children are participants unless the husband otherwise disagrees.

11. That notwithstanding the husband has sole parental responsibility, the wife may attend any medical practitioners upon whom the children attend by arrangement with that practitioner for the purposes of obtaining information about the children.

12. That the husband retain to the exclusion of the wife all of the funds held by Suburb A Legal on behalf of the husband and the wife (or the wife alone) and the said Suburb A Legal (or the principal of such law firm) in its capacity as trustee of the funds shall be entitled to forthwith release them to the husband and this order shall be sufficient warrant for that purpose.

13. That all extant applications are otherwise dismissed.

14. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. That the Independent Children’s Lawyer be otherwise discharged from the proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calder & Andrews(No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 391 of 2013

Mr Calder

Applicant

And

Ms Andrews

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons concern parenting and property proceedings between Mr Calder and Ms Andrews.  I propose to refer to them as “the husband” and “the wife”, only for convenience of description.  The three children are C, aged 10, D, aged nine, and E, aged seven.  All three currently live with the husband and his partner, Ms O.  Since 2014, the wife’s role in the lives of the children has been restricted by court order. 

2. This is a complicated parenting dispute, not made any easier by the fact that both husband and wife litigated without legal representation.  Whilst legal representation is a privilege, the absence of the investigative process normally conducted by lawyers, along with a lack of recent evidence,(notwithstanding provision was made for the parties to file it by an order made in September 2015), as well as little understanding of the litigation process, all made this case difficult for both parents.  That said, the court had the benefit of an independent children’s lawyer, whose role was very helpful. 

The wife’s application for an adjournment

1. This final hearing was set down for trial in October 2015.  The parents had ample time to contemplate what they wanted the court to determine and what evidence would be provided.  Despite that three-month lead-in time, the wife asked for an adjournment just after 10 o’clock on the first day of the hearing without any prior warning to the husband or the independent children’s lawyer.  She gave as her reason her desire to get advice from her “preferred” lawyer at a community legal centre.  In fairness, the wife and all other parties had only received a comprehensive family report only 10 days before and the wife said she wanted to get advice about what “position” to adopt, particularly as she disputed the report writer’s accuracy.  Indeed, the wife accused the report writer of bias. 

2. For reasons I then gave, her application was refused and she then sought time with a duty lawyer.  Notwithstanding the three-month lead-in time, the wife did not have her previous affidavits with her.  Having been refused an adjournment, she then said she was being “pressured” to commence the hearing.  The wife’s use of the word “pressured” is important.  It was considered by forensic psychologist, Dr F, who saw the wife’s approach to these proceedings as consistent with her view that much of what the wife does is behavioural – that is, she is a reluctant participant and there is no indication of a change in her belief that the children are at risk in the care of the husband.  Having said that, Dr F thought the pressing-on of the proceedings would bring about an acute psychological crisis.  When first that evidence was given by Dr F it seemed plausible because today, the second day of the proceedings, the wife has not returned to court, notwithstanding she was in the witness box at the end of the first day, giving evidence.  The hearing proceeded in the absence of the wife after a number of unsuccessful calls were made to her.

The wife’s absence

1. The matter proceeded until approximately lunchtime.  I reserved the judgment until after lunch, giving the husband and counsel for the independent children’s lawyer leave not to have to attend, should they so desire.  During the luncheon adjournment period, a certificate appeared on the court officer’s desk.  I propose to read into the transcript the precise details of what the certificate says. 

2. The certificate bears a logo of the H Street Medical Centre.  It has an address in Suburb A.  The wife, and indeed the husband, lives in Suburb A.  The facsimile print shows that the fax, if that is what it is, was sent at 9.27 am this morning.  Unfortunately, all the certificate says is that Dr I certified that the wife was receiving medical treatment and for the period 28 January to 29 January inclusive “will be unfit to continue her usual occupation”.  I am not clear whether that means that the wife was ill and unable to come to court or rather, unable to participate in her professional role.  The wife had not contacted either of the parties and it would appear that this fax has been sent by the doctor rather than by the wife.  I have no information or any evidence as to what the wife’s medical condition is, let alone what treatment Dr I is providing. 

3. Having excused both of the parties, it is difficult now to bring them back and, in any event, the case has concluded.  It may very well be that what Dr F said in evidence earlier today was prophetic;  the wife has had some sort of psychological crisis which required medical treatment but without some sort of indication from Dr I about that problem, I do not know whether the wife will be able to proceed in the future.  I do not know whether she is doing what Dr F opined:  acting as a reluctant participant.

4. Because of those matters, I propose to continue with these reasons for judgment.  I indicated to the husband and to counsel for the independent children’s lawyer during the hearing, that there may have been a reason why the wife was not present and I would make provision for her to make an application to set the orders aside.  In the circumstances, I propose to admit into evidence the certificate from Dr I in its rather cryptic form. 

5. Returning to not just the question of the completion of the hearing but also the refusal of the wife’s application for the adjournment, I again express the concern I had at the time that the children need a conclusion because they are said to be experiencing anxiety around the particular court events.  I consider that both the balance of convenience and but also justice to the husband and the children, required this matter to proceed to finality.  It will therefore follow that I have heard the balance of the evidence in this case in the absence of the wife.

The parties’ positions as to parenting orders

1. Normally, the absence of the wife without explanation would enable the court to strike out her response seeking orders, but because of the nature of these proceedings I have not done that.  I have considered her evidence.  Although there may have been a lack of attention to detail about it, the position about both parenting and property orders was unequivocal.  She did not seek a return of the children to live with her but, rather, unsupervised time on a regular basis.  She also sought equal shared parental responsibility.

2. For his part, the husband initially sought sole parental responsibility and that the wife’s time with the children be restricted.  That restriction was that, initially, he wanted the wife to pay for professional supervision for at least six months.  He also sought an order that, during that same period of time, the wife and children have counselling with psychologist Dr F, to whom I have already referred.  The husband’s position was that Dr F would assess whether the relationship between the wife and the children should then alter. 

3. At the conclusion of the proceedings, the husband’s position had altered and he adopted the position of the independent children’s lawyer.  That position is, effectively, that the husband have the right to decide when the children should spend time with the wife and that, to the extent that he needed assistance as to how to determine that issue, he should consult Dr F.  Because of the complexity of the evidence about the wife’s behavioural issues, it was also important that Dr F have a significant involvement right at the beginning of any new regime of parenting orders.  It was proposed – and I intend to order – that the husband not have to contemplate time between the wife and the children without her first discussing the issue with Dr F. 

4. The wife had proposed that there be no restriction but if she had to have a counsellor or some person like Dr F involved it should be a person of her choice.  She nominated a Mr J.  Dr F knew of Mr J, whom she described as a psychologist involved in men’s behavioural change programs, but her concern was that any change would involve another person in the lives of these children, particularly in circumstances where the children know Dr F and are comfortable with her.  I consider in the circumstances, therefore, that any change to that role is unnecessary. 

5. The wife’s proposal included a change because, I suspect, although I am not certain, the wife considers Dr F compromised or biased.  After hearing the evidence of Dr F, I would reject the wife’s concern in relation to that issue. 

The property issue

1. There is also a property dispute in this case.  There is about $40,000 sitting in a solicitors’ trust account in the names of the parties.  That is the extent of the property to be divided.  It represents the net proceeds of the sale of the parties’ house and caravan.  The husband claimed there was about $14,000 outstanding on two credit cards, being debt which had accrued during the parties’ relationship together.  He wanted that sum paid from the $40,000.  Those credit cards are not connected to the wife in any legal sense.  In my view, therefore, it is unnecessary for me to consider them any further on the basis of the orders I propose to make.

2. Even with such a limited quantum, the dispute continued between the parties as it has over the last almost two years.  The husband sought an order that he be entitled to all of that money.  The wife wanted 75 per cent of it.  In my view, the wife’s position is untenable. 

3. To compound the financial difficulties, the wife’s former solicitor had, in 2014 or 2015, become a party to the proceedings seeking her professional costs.  In 2015, solicitor Ms Dawkins and the wife agreed to an order that the wife’s solicitor’s costs be paid from any entitlement of the wife. 

4. The incapacity of the parties to resolve the financial issue was simply indicative of their wider disagreement.

History of the proceedings and background

1. The history of this matter is as follows.  This hearing has not been the first and, because of the past litigation, it is necessary to traverse some of it.  The husband is aged 42 years and works in finance.  He earns $100,000.  His partner is a quality control manager who earns about $90,000.  The wife is aged 42 years and is an aide earning about $40,000.  Both parties live in rental accommodation in the same suburb.  They were married to each other in 1998 and separated in September 2012;  a relationship can be seen, therefore, of almost 14 years. 

2. Four months after the separation, the husband began proceedings in the Federal Magistrates Court.  He sought that the children live with the wife but that he spend time with them on an alternate weekend basis and one overnight per week. 

3. In February 2013 the wife responded to the husband’s application, with the assistance of the solicitor who ultimately intervened.  The wife sought orders for sole parental responsibility and that the husband spend only supervised time with the children until he had undergone a mental health assessment. 

4. In her affidavit filed in February 2013, and which the wife still relied upon for these proceedings, she said that she had always been the primary carer of the children and that, between the separation in September 2012 until December 2012, the husband should spend time with the children for up to five or six hours per week as well as occasionally visit their activities.  In December 2012, however, she described the children returning home distressed and crying, and consequently, she denied the husband time because she was concerned for the safety of the children.  Importantly, she then said the following:

   [The husband] has mental health issues which I believe effect [sic] his ability to care for the children.  In particular, the husband has not shown any understanding nor been involved in the intervention and management needs of our youngest child, [E], who suffers from autism spectrum disorder.

   The wife then went on to say that she was not averse to the husband spending time with the children;  however, she was concerned for their safety in his sole care.

5. To support the order then for the husband to be psychiatrically examined, the wife said that he had had many psychotic episodes throughout the time she had known him.  She gave examples of the year 2000, where he woke in the middle of the night, ran out onto a busy road in Country K in his pyjamas in a psychotic rage.  She said that in 2002 he threatened to drive his car off a bridge following an issue with work colleagues.  She described the husband as routinely indicating that he was stressed and out of control and that his head was about to explode.  She said he argued in front of the children, as he lacked control and had fits of rage.  He had taken off, “abandoning the family” on many occasions.  She said his chronic mental health symptoms included high anxiety, sleep insomnia, mood swings and depression.  She described him as having been suicidal at times and, for the most part, angry and aggressive.  She said in April 2010 the husband was referred to his doctor in relation to depression and suicidal thoughts.  He was assessed by the CAT team and admitted to the L Clinic.  She said he had been medicated for seven years, including Lexapro, Effexor and another drug. 

Psychiatric assessment of the parties

1. In June 2014, psychiatrist Dr M said that the husband did not present with any signs of residual mental disorder.  Dr M said however, that the wife’s mental state was highlighted by a level of underlying anxiety, pacificity, poor emotional and verbal communication and a distinct vagueness when discussing elements of the children’s disclosures in late 2013 and early 2014. 

2. Counsel for the Independent Children’s Lawyer submitted that the examination by Dr M, whilst comprehensive in relation to the wife, was flawed in relation to the husband because the psychiatrist did not have any of the subpoenaed material in relation to the husband’s background.  Be that as it may, Dr M did not see any problems in the husband at all.  Subsequent observation of the husband by both family consultants and Dr F have not indicated any behavioural or psychiatric issues. 

The wife’s perspective of the children’s problems

1. The wife’s affidavit in February 2013 went on to speak of the children as having special needs.  She described C as having a few minor issues like sensitivity to loud noises and to the husband’s angry outbursts.  She described D as suffering from high anxiety since birth, sleep problems and dietary issues.  She said D had been treated by numerous specialists since birth and the child was under the care of a psychiatrist at the N Hospital, along with a paediatrician and a paediatric dietician. 

2. The wife alleged that D was diagnosed by a neurologist at the N Hospital following an incident where the husband dropped her as a baby.  She said that D sustained facial injuries when her face hit the ground and she required treatment at the N Hospital.  It was said that D was undergoing a chronic management team’s assistance and was to have a full psychiatric assessment to determine ongoing anxiety issues. 

3. E was described as having been diagnosed with high-functioning autism spectrum disorder and having special needs.

4. If accepted, one would conclude these children have or have had significant disabilities.  The evidence does not support any such conclusion.

The husband’s present perception of the children

1. The unchallenged evidence of the husband in this case is that all three children have settled into his household without any indication of any of the medical problems just referred to.  There are certain indications of anxiety and problems associated around the time of their contact with their mother, but they are generally progressing well at school, have friends, and each participates in normal childhood extracurricular activities such as sport. 

2. The picture portrayed by the wife, both as to the husband’s health but also that of the children, bearing in mind she relied upon this evidence as still pertinent to the orders she now seeks, could have no foundation in any of the evidence that I saw including in that of the two expert social scientists.  No other expert has given such evidence in this trial.  I therefore accept the husband’s unchallenged evidence about his health and that of the children. 

Why did the wife adopt this position that there is risk?

1. The curious question is why the wife adopted – and, it would seem, still adopts – the position I have just described.  Some indication may be found in the pieces of evidence that the wife gave in her affidavits.  She said that the children had, in the past, been subjected to the husband’s abuse causing them to cry and fear him.  Despite that, as a result of discussions, she and the husband were able to come to agreements but, when the husband spent time with the children, usually for approximately one hour, they returned home distressed saying that their father was not nice, had hurt them and they did not feel safe.  They described their father as angry, making them go on busy roads on bicycles, and yelling at them.  She described an incident in December 2012 where the husband spent four hours with the children and they returned saying the sorts of things just described.  She referred to an incident in which the child E had a scratch on his face and, when asked to explain it, he described the husband as scratching and pinching him, and then punching him in the head.

2. In October 2013, the wife through her new solicitors, filed a further affidavit.  There, she set out a chronological list of the problems during the husband’s time with the children, as reported by them to her. 

3. A brief overview of that affidavit (which the wife still relied upon) would indicate the children were resistant to contact with the husband.  Including repeating her concerns about the husband’s mental health, the wife was also very critical of the family report, which had then rejected any concern about the husband’s time with the children such as to warrant it being supervised.  I have referred to this affidavit as “evidence” but much of it was not evidence at all but, rather, argument.

4. At page 20, the wife said, amongst her criticism of the family report writer:

   There is nowhere in the report that reflects having a conversation with the father on how he would manage the child who has been diagnosed with oppositional defiant disorder and autism spectrum disorder.

5. In 2016, no evidence supports such an assertion about the father.  More importantly, none supports the suggestion that these children are afflicted with any of those problems.  At the conclusion of the wife’s 2013 affidavit, she raised the question of whether the children were “safe”.

6. In December 2013, the wife filed a further affidavit and again relied upon it in these proceedings setting out a series of events indicating problems in the relationship with the children.  That affidavit did little to assist the current hearing. 

The final hearing in September 2014

1. In September 2014, the wife filed an affidavit for a final parenting hearing anticipated to commence on 22 September 2014.  In that, the wife said the children accused the husband of doing things such that he was not “nice” and they would not see him unless she was present.  One accusation was that the husband had scratched and pinched E and punched him in the head, as I have already described;  another was that D had become obsessed with self-harm. 

2. However, the dispute escalated with the wife then saying that, in December 2013, the Department of Human Services and police had been involved in the lives of the children.  The children, she said, alleged that the husband, along with his father, had sexually abused C, hurt and sexually assaulted D, and that the husband had “touched” E’s “private parts, pulling them so hard that they hurt”.  Accusations were also made against the paternal grandmother.

3. On 23 September 2014, with the wife represented by counsel, she entered into consent orders, the relevant parts of which must be set out in detail to give context to the present dispute.  Those included the following:

   1.That the children [C] born … 2005, [D] born … 2006 and [E] born … 2008 (“the children”) live with the Father.

   …

   3.That the Mother attend upon [Dr F], and the Father and the children also attend as directed by [Dr F], for reportable intensive therapeutic family counselling.

   …

   5.That the Mother spends time with the children as recommended by [Dr F].

   …

   7.That the Mother be restrained from attending at [Suburb A] Primary School, or at any other place that the children may be attending for extra curricular, or other activities the children are engaged in, without prior agreement between the parties. The Mother may contact the school to discuss the children’s welfare and attendance.

   8.That subject to paragraph 5, the Father at his discretion may allow the children to contact the Mother by telephone if they request.

   9.That subject to paragraphs 5, the children be permitted to send cards and letters to their Mother.

4. The proposed orders were a stunning change, having regard to the allegations against the husband.  The conversation on that day between counsel and the court was transcribed.  The relevant part shows counsel for the wife indicating that her client remained “concerned” about the children and how they would “cope” with a change of residence, but otherwise counsel confirmed that the wife was consenting to the orders. 

5. As the trial affidavit containing serious allegations against the husband had only been filed days before these orders were proposed, the wife’s position was very concerning. 

6. It is important to note that there is, as part of this final hearing, no suggestion of a change of residence of the children back to the wife now.  The nub of her application is to spend time on an unsupervised basis with the children.

7. It is not necessary for me to deal with what happened immediately after the 2014 orders.  That becomes evident when I deal with the evidence of Dr F. 

The September 2015 proceedings

1. In September 2015, the wife brought an application before the court for interim orders pending the determination of this final hearing.  She sought orders, in essence, that the father not commit family violence towards her and the children, that all restrictions to her contact with the children be discharged, that the children be called upon to express a view as to the impact of the restrictions in their time with their mother on their lives, that the anticipated conjoint parent sessions with Dr F commence and that a new family report be undertaken but not by the person who wrote the report in 2014. 

2. The wife’s evidence to support that application was that the court had reserved the right to allow the children to come into court and voice their concerns directly to the judge but this had never occurred.  That was not accurate.  It was asserted that the family report writer, Ms B, had distressed the children and they had advised the mother that Ms B was mean, would not listen to what they had to say and called them “liars”.  Nothing I heard or read supported that allegation.  Ms B’s report was said not to be accurate as a result of not having listened to the children.  The report writer was accused of being biased and, therefore, it would be unfair to have another report prepared by Ms B for the 2016 hearing.  In relation to the orders in September 2014, the wife said the children were “forcibly transitioned” into their father’s care, which resulted in them having an extremely “traumatic and distressing” separation from their mother.  The wife claimed that the children had continually displayed high levels of distress when transitioning back to their father’s care, although she acknowledged the 2015 transitions had become more manageable as the result of the intervention of Dr F.  But she then asserted there was a breakdown of communications as to appointments and the work to be done by Dr F.

3. The wife then made reference to an incident in which C ran away from the school grounds and went to her home in February 2015.  It is not necessary that I deal with that incident.  The wife went on to say in her affidavit that the children’s distress had escalated to the point that they said they would rather die than continue to stay at their father’s home and, if they had to harm themselves and their father, they would.  All of this was dismissed by Dr F who obviously had a relationship with the children.

4. The wife said that she provided the children with a safe, caring and nurturing environment.  She said as a teacher she had the ability to have the children before and after school as well as holidays.  She said that, whilst in the father’s care, the children were attending after-school care each day, which made completing their homework more difficult and they were struggling to keep up with their educational obligations;  and, finally, she pointed to a number of friends who noted the children were currently “not themselves” and were unhappy, withdrawn and unable to make eye contact.

5. It must be stressed that this evidence was not relied upon by the wife in her evidence-in-chief which she gave yesterday, but it was extensively referred to in the reasons I gave in 2015for not altering the parenting orders pending this final hearing.

Conclusion as to the wife’s assertions

1. On the basis of the evidence I have heard now from the husband, Dr F and the family consultant, along with reading those affidavits of the wife to which I have referred, I am satisfied there is now no foundation for the wife’s assertions.  Indeed, her assertions are concerning because they manifest the reservations of both Dr F and the family consultant.

The husband’s evidence

1. The husband’s oral evidence, which he gave yesterday, was that D was keen to spend time with her mother, E enjoys time but is self-absorbed and happy to do what he wants to do, and that C was somewhat reluctant to go and spend any time.  He said that, since the contact arrangements were operative, the children generally did not ask about their mother.  In terms of the post-contact periods, he described E as not sleeping and having nightmares and at times denigrating him and his partner in a disrespectful way.  His concern, he said, was that the wife was denigrating him and telling the children about the court proceedings as well as what she perceived to be his lack of parenting skills.  He was concerned about D in particular because she was unsettled in terms of her sleeping patterns.  He described her as highly strung and anxious, losing her appetite and having arguments with her younger brother.  He said at times she was withdrawn.  As to C, the husband said there were no problems but he wanted all children together.  He described the children’s progress at school as good and having peers, and that the older of the children was in a leadership role.  He described both C and D as above average of the class and, whilst E was below average in some areas, he put that down to maturity.  The children play ball sports and D participates as well in ballet.

2. In terms of child support, he did not receive any but he said that, as a result of the assessment, which was a relatively nominal amount each month, he was not going to chase the wife.

3. In relation to child support, the wife gave evidence that she had been assessed but the Child Support Agency was not making her make any payments because the agency had determined that the husband owed them money and, therefore, they were deducting it in some way from her obligation.  I am not all clear what all that means, but I am also unclear as to exactly what the wife’s financial position is in terms of being able to support the children. 

4. The husband described the relationship between his partner, Ms O, and the children as good.  He worked between 9 and 5 and had four weeks holiday per year and was able to juggle his leave and that of his partner to enable the children to spend time during the holidays without having to be supervised by external people, but he also relied upon assistance from his parents.  During the school week, the children attend after school care and that occurs on three days per week. 

5. The husband also indicated that he had spoken to the speech therapist of the children who had expressed some concerns about the autism spectrum disorder and it seems that, when he completed his survey and gave it to the therapist, they were in agreement that there was no indication of autism, as previously diagnosed. 

6. In terms of the schooling of the children since they have been in their father’s care, he was unable to recall any day where they missed. 

7. In terms of any relationship in the future with the wife about the children and decision-making, he thought that it was unlikely that they would be able to agree about things because they did communicate.  Their relationship at times has descended to the point that the state had to intervene with intervention orders.  He thought that the major problem might arise in relation to medical care and the view he held was that it would be unlikely that the wife and he would agree and that might prejudice the interests of the children.  He did not see a schooling issue because he thought that the children would continue to attend the local school.  He said he would have liked the children to have gone to a private school that he attended but he doubted very much whether there would be any prospect of an agreement with the wife about that.  

Conclusion about the current parenting arrangement

1. As for the current arrangement, the wife has been seeing the children on an alternate Sunday between the hours of 10 am and 5 pm and that has been occurring with some extra time at Christmas.  The expert evidence suggests that that sort of order is not appropriate for these children.  Ironically, in the hearing that I conducted in September 2015, that was the arrangement in place and there was then concern expressed by Dr F as to whether or not it should continue and whether the children should be supervised in the wife’s care.  That issue has now been taken up by the family consultant, whose evidence I shall turn to in a moment, but Dr F no longer believes that the children should be the subject of any supervision order.  That is not because of the wife’s ability but because it would be counter-productive

2. Finally, in relation to the 2013-2014 allegations by the wife, the husband responded that they were not true.  Again, there is no reason for me to doubt the husband’s evidence in respect of that.  There is no objective corroboration of the allegations by the wife but, most importantly, at the family report visit, the wife was given every opportunity to raise those sorts of allegations again and she did not do so. 

3. At the hearing yesterday I explained in some detail how the hearing would proceed and particularly about the concept of cross-examination and the importance of putting allegations if they were to be relied upon.  That was significant in this case because, as I have pointed out, the wife’s allegations in September 2014 were extremely serious.  The wife chose not to cross-examine the husband at all.  On that basis, and without any objective indication that those allegations have any foundation from any source, I am entitled to reject them.  That leads to the conclusion that there is nothing about the husband’s relationship with the children that would enable me to find that these children are at risk in his care.

The evidence of Dr F

1. Dr F gave evidence in September 2015, as she did this day.  I think it is important to note, as I did in the 2015 reasons for judgment, that, to put the evidence today into some context, the details of what happened since can be seen as a result of that contextual examination.  In 2015, Dr F described the children’s behaviour at the time they went into their father’s care as “histrionic” and “exaggerated”.  She helped the children through the transition and was working towards unsupervised time with their mother.  Dr F found it very disconcerting in September 2015 to find out that, notwithstanding her involvement in the case, in the previous 12 months there had been five notifications to the Department of Health and Human Services in Victoria that the children were in some danger.  Dr F said today that she had spoken to the wife, who had conceded that she was responsible for two of those five notifications. 

2. As late as 25 May 2015, the mother was alleging that the father of the children was in bed with D.  On 1 June 2015, the Department of Health and Human Services were informed – and I am unsure whether this was part of a notification made by the wife – that the children feared their father, were talking about harming their father and, on one occasion, one of them had been put outside the house.  The notification stressed that C was regressing in his behaviour and D had marks on her back from being in bed with her father.  In every one of those notifications, the department took no steps either to express concerns about what was happening in the husband’s household and they certainly had every opportunity, but did not intervene, in these proceedings.

3. On 26 June 2015, the wife had a discussion with Dr F and, when challenged about the notification that she made to the department, she said she was forced to make it because, when she tried to contact Dr F, she was unable to obtain any appointment and she felt that that was critical because at that time, in her view, C was suicidal.  Dr F said she spoke to the child and indicated that there was no foundation for the concern that C was suicidal.  Dr F said that she made the wife hear what the children were saying about the time with their father and, in fact, that they were enjoying their relationship.  Dr F, however, accepted in 2015 that the wife did not accept the relationship was like that at all. 

4. Dr F agreed that she had told the wife that it was time to move on so that she could increase her role in the lives of the children, but that was dependent upon behavioural change in the wife. 

5. Now, some four months later and with a visit between the wife and Dr F in December 2015, Dr F is of the view that nothing has changed.  Dr F opined in September that the wife had no insight into the needs of the children or how any sharing arrangement would work.  It is, therefore, unsurprising that, on the basis of Dr F’s evidence in September, the wife’s application of the nature I have earlier described could not succeed. 

6. Dr F’s oral evidence to the court today has expanded on the problem, even though her contact was limited.  Dr F said that the wife has not shifted her position in any perceptible way as regards her thinking.  She described her as a reluctant participant who had to exhibit some form of change or willingness to change.  Dr F, sadly, said that she did not trust the wife in terms of what she was being told.  She took the view that there is little chance that the wife would change her beliefs.  Those beliefs of the wife are the ones that were articulated in the affidavit in September 2014 but they are also things that the wife still asserts are being said by the children.  Whilst the wife clearly denies having manipulated the children in any way, there is a correlation between what the children say and what the wife believes.  I am not entirely sure whether Dr F, as a psychologist, is capable professionally of making a diagnosis, but her view was that the wife suffers from borderline personality disorder. 

7. In relation to the husband, the view of Dr F was that, when he first took on the role of caring for the children, it was difficult for him to adjust.  In part, that was because the children missed the mother dreadfully, particularly her care, which, leaving aside the psychological damage of their removal, had apparently been exemplary.  The children generally love their mother and there are positive aspects of her parenting, according to Dr F.  Dr F’s concern was that those positives have to be balanced with the negativity of the wife’s behaviour. 

8. The fallout of the behaviour can be seen in the fact that D is emotionally conflicted.  Dr F thought that D would say whatever her mother wants her to say.  C and E, on the other hand, are dealing with the problem but D is much more difficult. 

Supervision of the wife’s time?

1. The question that is foremost in this case is what time should be spent by the wife with the children and, if indeed it is to be limited in some way, should it be supervised?  The whole purpose of the recommendation of supervision was to enable the children to be protected from the psychological abuse of their mother by the imparting of the beliefs that I have already mentioned.  The concern of Dr F about supervision was that the children have already seen too many practitioners.  There was no basis, therefore, to bring in another practitioner, particularly someone who may not necessarily understand the subtleties of the problem that the wife is creating.  In addition, absent change in the wife’s behaviour, supervision would have to be contemplated as a long-term prospect.  A long-term supervision order is not only unwieldy but it is also impracticable.  It means that children are living in an unreal world where there is an expensive supervisor who has to travel everywhere with them and there are restrictions on the development of the relationship.  On that basis, supervision was not something that Dr F was at all enamoured about.

Sexual abuse allegations

1. Dr F was asked about her understanding of the wife’s position in relation to the sexual abuse allegations made in 2014.  Dr F said that they were really a problem arising from the way that the wife thought about things.  She described it as a feature of the wife’s personality disorder.  In terms of the wife’s relationship with the children, which Dr F had observed clinically, she described it as an “odd” interaction.  She said the children were like puppets who finished their mother’s phrases and they looked up at her before doing so.  She said they were overly connected and intertwined. 

The husband’s relationship as assessed by Dr F

1. Contrasted with that, however, the husband had a normal and free-thinking arrangement and the children were free.  In essence, therefore, Dr F was of the view that the children were caught up in saying what their mother wanted them to say and that was extremely psychologically unhealthy, particularly in circumstances where they had to go back to an entirely different household. 

A future role for a therapist?

1. It is important that I acknowledge that Dr F has significant experience and her expertise was not challenged by any of the parties.  I raised with Dr F whether her continued involvement might be compromised having regard to the fact that the wife expressed uncertainty about Dr F’s involvement, but she said that was part of the wife’s approach to the whole issue.  I agree with that and, on the basis that Dr F will continue to be involved, or someone that she nominates if she is unavailable, the children will have an avenue for counselling if they need it.

Other witnesses

1. There were other witnesses of the wife who were also relied upon.  It was hard to get a sense of what witnesses the wife did want to have before the court, but she pointed to the affidavits that had been filed for the interim hearing in September 2015.  Notwithstanding the rules of the court require that those affidavits could only be used for that particular hearing, I have read them again and taken them into account.  That is particularly so that, notwithstanding the absence of the wife, neither the husband nor counsel for the independent children’s lawyer required these people for cross-examination.  Having said that, their evidence was of a character reference nature about the wife.  I do not know whether they knew about all of the background that I have earlier described.  Their evidence must, therefore, be of limited value.

Family Consultant Ms B

1. The final witness in this proceeding and who was not required for cross-examination was family consultant Ms B. Ms B completed a comprehensive family report as a result of an order made under section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). That same provision also provides that it is a matter for the court to determine whether the evidence of the family report should be admitted. In this case, there is every reason for me to read into the evidence that report.

2. Albeit that the wife accused Ms B of bias and inaccuracy, nothing I have heard or read suggests that to be the case.  Her observations of the parents and the children were very much like those of Dr F.  Of the wife, the family consultant described her presentation as consistent with previous reports.  Those are the reports that the wife described as being unbalanced and biased.

3. The family consultant said that, in the closing stages of the interview, and only under pressure, the wife explained that she was having minimal time with her own children because of her own behaviour.  Having acknowledged that, according to the family consultant, the wife could not identify a single element of her behaviour that might accord with any basis for restrictions on her spending time with the children.  That enabled the family consultant to conclude that there was a profound incapacity on the part of the wife for insight or reflection.  The family consultant then went on to say that she could not see the wife addressing any of the concerns about her own behaviour or how she would conduct herself in relation to the husband, and she was significantly unable to operationalise any management issue associated with the children.  The conclusion I have drawn from that statement is that the family consultant is of the view that the wife has adopted a position under which no one will tell her how to raise her children or be listened to if they disagree with her view. 

4. The family consultant said that the wife still described the move of the children to their father’s care as “forcibly transitioned” and she went on to say that the 2014 consent orders had only been agreed to by the wife on the basis that the independent children’s lawyer gave her no choice and her own barrister threatened her and told her that she would not see her children until they were 18 years of age.  When a court hears those sorts of statements subsequent to consent orders, particularly in children’s cases, it is very disconcerting.  The difficulty in this case is that, when I return to the transcript of the proceedings in 2014, it is clear that I gave counsel for the wife at least two occasions to confirm that the wife was consenting to the orders.  One of those occasions, as can be seen from the transcript, was such that the wife was given an opportunity to go outside of the courtroom whilst I adjourned temporarily so that counsel could have a private conversation.  Counsel then came back to indicate that her client still conceded that the orders should be made.  Accordingly, I can find no basis to say that the children were “forcibly” given to the husband in 2014. 

5. In relation to the question that Dr F raised about the behaviour of the wife with the children, particularly in relation to denigrating the husband, according to the family consultant, the wife admitted conversations had taken place with the children because they asked questions and she took the view that the questions needed to be answered. 

6. The family consultant, unlike Dr F, specifically pressed the wife about her claims of sexual abuse as raised by the 2014 affidavits.  Her response was enlightening.  She said that she had not coached the children to make the complaints;  that they were the things that the children had said.  When she was pressed as to the veracity of those claims, she responded by saying that she did not know because she was not there at the time, but she was simply responding to the distress of the children as a protective parent.  At no stage has the wife indicated that she has any doubts about the veracity of those claims.  That conclusion can be drawn from the fact that she was given an opportunity in the witness box yesterday to say whether or not she still stood by those accusations.  It is clear that her case in 2014 was not just about what the children said.  She strongly believed what they were saying and had no doubt that the husband was the perpetrator of those evils. 

7. The family consultant turned her attention to the wife’s view about the husband’s current care of the children.  The wife had said the children reported consistent complaints about the level of care but she said that they seemed to be psychologically coping, but then added “as well as they could”.  All of that is completely contrary to the evidence of the husband and, whilst one person’s word against another might create some dilemma for the purposes of deciding which is true, I have the objective evidence of Dr F, who has spoken to the children and who indicated that the children were coping extremely well and when she observed the children with their father she saw no problems.  There are problems but they are not of the nature that the wife is concerned about.

8. Having extensively canvassed the important issues in this case, the family consultant then opined that her view was that the wife had no capacity to comprehend the difficulties that she was presenting for the children or any sense of whether there had been any adjustment in her parental understanding of her behaviour.  That indicates, like Dr F, that there is little prospect for change.  The family consultant then said the following:

   The children suffer at the hands of their mother.  They are crippled and diminished, either with health issues or learning challenges that remained unaddressed but which allowed the wife to assume an unwarranted significance and receive attention.  Since separation and residing with their father, the children are, according to the wife, further handicapped as they live with a parent who can’t do anything properly and, despite the wife’s claim to the contrary, her management of [E] sees him returning to his father in an emotionally dysregulated fashion as an indicator of his incapacity to deal with the emotional landscape she provides and/or lack of restriction as to his behaviour experienced with his mother.

9. The family consultant said that her view was that E can reflect;  that he behaves differently with one parent than with the other.  The family consultant said that E is aligned and obligated to his mother.  Having regard to E’s age, that is very sad but it also gives rise to some serious concerns as to whether or not the mother’s time needs to be carefully considered.

The opinion of the family consultant

1. The family consultant ultimately went on to say that the court needed to be very careful about the extent and impact of the load that these children were carrying because C in particular is showing the first traces of a child who has become disaffected by a parent’s conduct.  This is a child who is just entering his teenage years.  The family consultant opined that, unless there is a swift and dramatic change, C will reject his mother and refuse to spend time with her, leaving the wife, over-invested in the other two children, escalating her inappropriate enmeshment with them.

2. The family consultant then said that the prognosis for the future was poor.  She acknowledged that the wife’s focus was to fight and save face and that spending time with the children was not so much a priority.  She thought that the wife was determinedly focused on undermining the husband, whatever the cost and whatever it would cause to whom.  She said that the wife lacked insight and did not accept responsibility for her behaviour, simply claiming that it was everybody else’s responsibility to fix the problem. 

Finding as to risk

1. All of that leads me to make findings that there is no risk of physical harm or psychological harm for the children in the care of the husband.  Conversely, I have significant concerns about the psychological harm to the children in the care of the wife.  In my view, in the wife’s care, the risk is unacceptably high.  The solution must lie in the husband controlling the time so that the behaviour of the wife is minimised.  Whilst it is always difficult to give one particular party the “whip hand” in a parenting case such as this, it must be remembered that I have heard the evidence of the husband and he has given every indication throughout these proceedings of a willingness to have the children have a relationship with their mother.  There is no basis for me to suggest that he would take a bloodyminded approach to things.

The legal issues

1. I turn then to the legal questions that need to be considered. Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the children that the parents have equal shared responsibility for them. This particular provision relates to decision-making. The presumption does not need to be applied where the court is satisfied that one of the parties has engaged in family violence or abuse of a child, or of another member of the parents’ family. Whilst there is some doubt about the evidence concerning family violence in this case, I find there is no evidence to support a conclusion that the husband has been violent. I say that in the context of reading the affidavit of the wife, that there was an intervention order made against him. Just why that intervention order was made I am unable to say and it is not necessary that I make such a finding.

2. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for their children to have equal shared parental responsibility for them. The evidence of the husband was that there is no communication between the parties. They do not speak to each other about their children’s welfare. The wife is nothing but critical of the husband’s parenting of the children. He expressed concern about medical issues. Having regard to the fact that there does not seem now to be any reason to be concerned about the health of the children, taking into account what they had been through in the earlier years prior to coming into the care of the husband, medical problems are unlikely to be a dispute area between the parents in the future. The same might apply in respect of future schooling. Having said that, it is most unlikely that the parents would be able to reach agreement anyway.

3. Section 65DAC of the Act provides that, if the court makes an order for equal shared parental responsibility, it is taken to require each of the persons to consult the other in relation to the decision of significance that is a major long-term decision and to make a genuine effort to come to a joint decision about that issue. I find there would be little prospect of a genuine effort being made by the wife to come to a joint decision because of her view about the husband’s parenting. Under those circumstances, the chances of a consultation leading to a joint decision are unlikely and, more probable, a joint responsibility approach will cause delays in coming to a decision. That cannot be in the best interests of these children.

4. For the last 18 months, the husband has made all of the decisions – and in a responsible way.  An order should be made that he have sole parental responsibility. 

5. It is somewhat ironic that in the wife’s application filed in 2013, and upon which she intended to proceed in the final hearing in 2014, she sought that she have sole parental responsibility. In the witness box yesterday she indicated that she thought equal shared parental responsibility should be the ordered but gave no reasons why that was the case. 

6. Section 60CA of the Act provides that when making, or contemplating the making of a parenting order, the Court must consider the best interests of the child as the paramount consideration.

Section 60CC

1. To determine what is in the best interests of the child the Court is obliged to contemplate the matters set out in section 60CC of the Act. The primary considerations in section 60CC include the benefit of the children having a meaningful relationship with both parents, but at the same time protecting the children from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence. In the event that there is a conflict between those two principles, the protection from harm takes precedence.

2. It is very much in the children’s best interest to have a meaningful relationship with both of their parents, but on the overwhelming evidence in this case that cannot happen if they are in their mother’s care because the wife is destructive of the relationship between the children and the husband.  She makes his role as a parent more difficult and puts at risk the stability that he provides for them.  There is a need to protect the children from psychological harm following being exposed to abuse, that abuse being circumstances where the wife denigrates the husband.

3. The Court is obliged to consider the views of the children.  The evidence suggests that the children would probably go back to live with their mother if they could.  In this case I do not have any evidence as to how mature these children are, but that is in part because they have been sadly affected by the exposure to the conflict.  Because Dr F was of the view that the wife’s behaviour is likely not to change, and that is supported by the evidence of the family consultant, I should not give the views of the children – such as they are – any weight.

4. The Court is obliged to look at the nature of the relationship of the children with each of the parents, whilst at the same time looking at the parents’ attitude to responsibilities as well as their parental capacity.  Those three concepts can all be considered together.  The wife, in my view does not have the capacity to provide anything other than the basic physical needs of the children.  She cannot handle their emotional and intellectual needs, and under those circumstances the only person who seems to be able to provide that role is the husband.

5. The Court is obliged to take into account the extent to which a parent has failed to participate in decision-making about the children. Here the evidence of the husband – which is unchallenged by the wife – is that the wife does not contact him about the children at all. The Act requires the Court to look at the extent to which a parent has fulfilled, or failed to fulfil their obligation to maintain a child. I have already dealt with the child support issue, and it is clear that the wife feels that she has no obligation. Just exactly what capacity she does have to support these children remains unclear, and at the moment the whole of the burden falls upon the husband and his partner.

6. To the extent that the wife could be providing anything, she has certainly not done so to date.  It is not just a question of paying child support in the form of money.  Children obviously need things for school, and for play, and the evidence would suggest that nothing is being provided of substance by the wife. 

7. One of the aspects that the Court is obliged to consider is the likely effect of any change in the child’s circumstances, including the separation from a parent.  Here the children are not suffering from the absence of their mother, notwithstanding they do want to see her.  I suspect, however, if they were removed from their father there would be some anxiety. 

8. There is no problem about contact taking place here because, as I have already indicated, the husband has expressed a willingness to assist in that relationship, providing the wife changes some of her attitude and behaviour.  That particular problem can be addressed with the assistance of Dr F, who has indicated a willingness to assist the husband what he should do after speaking to the wife.

9. I am not in a position to make any findings about family violence, but I note there is a family violence order.  The details beyond that as to its basis, remain sketchy. 

10. One of the considerations which is most important here is that it must be considered preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to these children.  It is very concerning here that in the short life of the youngest of these children there have been persistent hearings, and the evidence, which is uncontested, is that each time the children know of a hearing it distresses them.  That makes the attendance on Dr F problematic, even if they have a good relationship with her, and no doubt when they are brought to the Court the attendance upon a family consultant raises the old issues again.

1. The husband indicated that on one occasion of late he drove to the Victoria Market past the court and the children immediately recognised the building and described it in pejorative terms.  These children deserve better than that. 

Conclusion

1. In my view the best interests of the children will pertain here by the husband having the daily control of the children, and that the wife have her time restricted with the children in circumstances where she has not any indication of a change of behaviour.

2. To the extent that the wife wishes to improve her position, she has to contact Dr F, who will assist her and then – according to the evidence of the husband – time can start on a regular basis as was anticipated it would in 2015. 

Injunctions

1. In final discussions with the parties who remained, questions of what orders should be made here were discussed.  In my view this is a case in which orders restraining the wife by injunction from attending the children’s school should be made subject to the husband discussing with the principal participation in concerts, parent teaching nights, and other activities in which children are participants.

2. It is a matter for the husband to contemplate whether some attendance by the wife at such an event would be destructive.  He would no doubt take advice from the principal and the teacher, but also Dr F.  Dr F asked that to the extent some other person should be made her replacement in the event of her incapacity, it should be someone of her choice.  I think in the circumstances that makes sense, rather than adopt the position taken by the wife.

3. In my view the orders that I have outlined which commenced these reasons are in the best interests of these children. 

Property

1. I turn then to the property dispute between the parties.  Modest as it is, the parties were not able to resolve this dilemma.  The husband relied upon an affidavit that he filed on 22 January 2013, and the particular paragraphs there relating to property.  The wife relied upon the affidavit that she filed on 20 February 2013 in respect of the same issues.

2. The husband’s evidence was that at the commencement of the relationship neither party had any assets.  With that, the wife agrees.  After the children were born the wife remained as their primary carer and the husband was the principal financial supporter.  Throughout the period of time that the wife was caring for the children, however, she continued her employment.  The parties purchased a home in 2002 and sold it in 2010, and with that money they purchased a home in Suburb A.  In addition to contributing the money that they had received from the first property, they borrowed money by way of mortgage.

3. The husband claimed that the wife’s mother provided about $5000 at that time which went into the home.  The wife’s evidence was that in addition to what she had earned.  She also received an inheritance of $16,700 from her father, which was used for home renovations, and it was not $5000 but $15,000 initially that the mother of the wife provided to the purchase of the Suburb A property, and a further $5000 afterwards.

4. It would seem on any view that the major financial provider throughout the time that the parties were together was the husband, and whilst the wife contributed what she could, her major role was that of homemaker and parent;  with that the husband did not cavil.  In terms of what the parties then did, the evidence is sadly lacking.  It seems that the parties had purchased a caravan which was owned by a self-managed superannuation fund that they had set up.  The husband anticipated that the caravan was worth about $50,000.

5. Ultimately it seems that the caravan was sold, and rather than the money going back into the superannuation fund it went to the fund which is now about $40,000 in the wife’s former solicitor’s trust account.  In her evidence, the wife said that the account reflected the fact that the caravan was improperly sold, or that its management was not good from the husband’s perspective.  She said that there was evidence from the caravan park owner as to value and loss, but none of that was of an expert nature, nor was it admissible.

6. The sale of the caravan – and the parties have conducted this litigation on the basis that they were the owners of the money rather than the superannuation fund, along with the proceeds of the sale of the home – is now down to $40,000, or thereabouts.  The orders that were made in September 2015 in relation to Dr F included that Dr F’s fees be paid from that fund.  Notwithstanding that – and that seems to have happened – the amount is now still down to the sum of $40,000.

7. There is a debt of about $14,000 in the husband’s name owing on credit cards which he said had been incurred prior to the breakdown of the marriage.  The wife acknowledged that that was the case, but said that it was the husband’s own personal credit card and that he had not made any personal payments.  Again, the wife’s opportunity to cross-examine the husband about all these things was offered to her and she declined. 

8. The division of property between spouses to a marriage is governed by Part VIII of the Act, and in particular section 79. For the purposes of that section, subsection (2) provides that the Court must not make an order unless it is satisfied that it is just and equitable to do so. To determine what is just and equitable the Court has to take into account the matters set out in section 79(4). Before turning to those, I am satisfied that the only equity that the parties have arises from the cash of about $40,000, but that there is a debt of $14,000 that needs to be offset against that.

9. I am conscious that there was an intervenor in this proceedings who claims her legal fees from any entitlement of the wife.  I take that into account.  I am satisfied, therefore, that what I am ultimately dividing is approximately $26,000 in cash. 

10. Section 79 of the Act requires the Court to take into account the financial contributions, as well as the non-financial contributions, made to the acquisition, conservation and improvement of the property of either parties, as well as the contributions made to the welfare of the family. The Court is obliged to also take into account the effect of any proposed order upon the earning capacity of the party, and in this case that is not an issue.

11. The Court is also obliged by s 79(4)(e) to take into account the matters set out in s 75(2) so far as they are relevant. Another s 79(4) matter is the child support for a child that will be, or might be provided. In this case I am satisfied that it is unlikely that any child support will be paid as none has been offered and the wife’s income is modest. Having contemplated the various contributions in this case, I conclude that there is an equality of contribution. The husband earned a far greater income than did the wife, but the wife’s welfare and homemaker parent was greater than that of the husband. In addition, there were the inheritance sums and the earnings of the wife from her role in the teaching profession. I have also taken into account the contributions of the husband since 2014 when he took control of the children which have been much greater than that of the wife. Indeed not only has the wife’s physical care of the children been very limited, but she has made no provision for their financial assistance either.

12. In those circumstances all of those things balance out and one might conclude that the parties have contributed equally. The Court is obliged to take into account the matters in section 75(2) of the Act. I have already set out the respective financial positions of the parties. Neither of them has any assets and their major financial strength lies in their employment.

13. The husband has the benefit of a partner and their combined income is significantly greater than that of the wife.  The wife, however, gave no evidence about whether she could improve her position, and indeed about her current expenses.  I find that the husband is in a stronger financial position as a result of his employment than is the wife. 

14. I am obliged to take into account the necessity of the children to live with and be cared for by the husband, and having regard to the age of E, that is a long road ahead.  I do not know what the commitments of the wife are to care for herself, because she did not lead any evidence.  I conclude that the husband is spending a significant portion of his income providing for the children.

15. None of the parties is eligible for any Commonwealth benefits. 

16. I am obliged to take into account the standard of living in all the circumstances as is reasonable.  It would seem that the parties had their own home but now they have to resort to rental accommodation. 

17. It is important that the Court take into account the fact that there is a creditor - in this case in the form of the credit card holders and the intervener.  I appreciate that he earns a significant income that is greater than the wife, but I conclude that the credit card is a joint liability and should be treated as such.  The debt of the wife to the intervener is not in the same category.  I return to that claim below. 

18. Neither party claimed that the duration of the marriage had affected their earning capacity.  I have taken into account the fact that the children will be living with the husband and he desires to fulfil that role.  I appreciate that the wife would like that role, but having regard to what I have earlier found it is implausible that any such order could be made.

19. I have taken into account the fact also that Ms O is the husband’s partner and has a good income.

20. On any view, the only issue in this case is what should happen to what is effectively a minimal amount of money. $26,000 is not going to affect either party one way or the other. I appreciate that the intervener may not be paid, but that is something that the wife may have to deal with from her income. To take into account anything more than that in relation to Ms Dawkins would mean that the husband would be paying some of the wife’s costs. Having regard to the provisions of s 117 of the Act, that would be inappropriate in this particular case. There is no justifiable circumstance to depart from the principle in s 117(1).

21. The reality in this case, however, is that s 75(2)(o) provides that the Court is entitled to take into account any fact or circumstance which the justice of the case requires to be taken into account. Here the husband gets no financial assistance from the wife, and is unlikely to in the future. The property is modest and will make very little difference to the lives of any of the parties, but it may assist the children in some small way. In my view this is a case where the husband should have all of the equity in the trust fund, and he be responsible for the payment of the credit cards from that fund.

22. I appreciate also that the fund is in the control of the former solicitor for the wife, but those funds are held on trust for the parties.  To the extent that it is necessary to say so, the order is sufficient warrant for the practitioner holding those funds to discharge his duties as trustee and pay them to the husband pursuant to these orders.

23. The only other orders that need to be made in this particular case are that the proceedings be otherwise dismissed and the independent children's lawyer be discharged.  In my view the parenting orders are in the best interests of the children, and the property orders are just and equitable to both parties. 

24. Accordingly I make orders in the terms that are set out at the commencement of these reasons. 

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 January 2016.

Associate: 

Date:  10 February 2016