CAMP & VANCE - [2011] FMCAfam 804

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMP & VANCE

[2011] FMCAfam 804

FAMILY LAW – Parenting – three children aged 12, 9 and 4 years – serious allegations of domestic violence made by mother against father which have been reported to the Police – court unable to make findings as Police investigations are continuing and no evidence was able to be given – children’s wishes are to continue living with the mother but to spend increased time with the father – serious concerns raised about the father’s partner’s alleged history of excessive alcohol use and domestic violence – negative inference drawn by the court as a result of the father failing to call his partner to give evidence – ordered children continue to live with the mother and spend increased significant and substantial time with the father, subject to his partner not being present.

FAMILY LAW – Property – de facto relationship – small asset pool – limited evidence given to the court as the quantification of the pool, contributions and future needs – determined 75:25 division in mother’s favour.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 90SF, 90SM

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

Applicant:

MR CAMP

Respondent:

MS VANCE

File Number:

MLC 3095 of 2010

Judgment of:

Bender FM

Hearing dates:

2, 3 & 4 August 2011

Date of Last Submission:

4 August 2011

Delivered at:

Melbourne

Delivered on:

21 November 2011

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Tulloch

Solicitors for the Respondent:

J A Middlemis

Counsel for the Independent Children’s Lawyer:

Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

Children’s Matters

The parties have equal shared parental responsibility for the children [X] born [in] 1999 (“[X]”), [Y] born [in] 2002 (“[Y]”) and [Z] born [in] 2007 (“[Z]”).
[X], [Y] and [Z] live with the mother.
[X], [Y] and [Z] spend time with the father as follows:
(a)when the father is working and/or living more than 100 kilometres from [W]:
(i)in the first weekend of every fourth weekend cycle from 6.30 pm Friday until 6.30 pm Sunday; and
(ii) as otherwise agreed between the parties;
(b)when the father is working and living within 100 kilometres of [W]:
(i)each alternate weekend from after school Friday to before school Monday;
(ii)with [X] only, each Wednesday from after school to 8.00 pm; and
(iii)as otherwise agreed between the parties;
(c)for one week in each of the school term holidays as agreed between the parties and failing agreement from 6.30 pm on the last Friday of term to 6.30 pm on the middle Friday;
(d)for two one week blocks in the long summer vacation as agreed between the parties and failing agreement commencing 10.00 am on 27 December 2011 and 10.00 am on 10 January 2012 and each alternate year thereafter and from 10.00 am on 3 January 2013 and 10.00 am on 17 January 2013 and each alternate year thereafter;
(e)if [X], [Y] and [Z] are not otherwise with the father on their birthdays or the father’s birthday, then on a school day for three hours as agreed and failing agreement from after school to 6.30 pm and for four hours on a non-school day as agreed and failing agreement from 10.00 am to 2.00 pm;
(f)if [X], [Y] and [Z] are not otherwise with their father on Father’s Day, from 10.00 am to 5.00 pm; and
(g)from 4.00 pm Christmas Eve to 4.00 pm Boxing Day 2012 and each alternate year thereafter.
The father’s time with [X], [Y] and [Z] pursuant to orders 3(a) and 3(b) herein shall be suspended during school holiday periods and recommence at the commencement of each school term as if the holidays had not intervened.
The father’s time with [X], [Y] and [Z] pursuant to these orders shall be suspended as follows:
(a)on each of [X], [Y] and [Z] and the mother’s birthdays for three hours on a school day as agreed and failing agreement from after school to 6.30 pm and for four hours on a non-school day as agreed and failing agreement from 10.00 am to 2.00 pm;
(b)from 10.00 am on Mother’s Day; and
(c)from 4.00 pm Christmas Eve to 4.00 pm Boxing Day 2011 and each alternate year thereafter.
Changeover for the time that [X], [Y] and [Z] spend with the father, if not to and from school, shall take place at the [W] Contact Centre and in the event the [W] Contact Centre is not available, at the [W] Police Station unless otherwise agreed between the parties in writing.
The father’s partner, Ms M, shall not be present when [X], [Y] and [Z] are spending time with the father.
Each party is free to be fully involved in the school lives of [X], [Y] and [Z], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall advise the other of any serious illness or injury suffered by either of [X], [Y] and/or [Z] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], [Y] and [Z] or any of them, and from permitting any other person so to do.

Property Matters

The parties realisable assets be divided such that the wife receive 65 per cent of same and the husband receive 35 per cent of same.
From the husband’s share of the parties’ realisable assets, the husband pay to the wife an amount equal to 65 per cent of the arrears of the mortgage and 65 per cent of the arrears of rates on the property situate at Property M as from 26 July 2010.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES THAT:

A.For the purposes of the calculation of the division of the parties’ realisable assets, the HSBC credit card shall be paid prior to any division.
B.In determining the division of realisable assets between the parties pursuant to these orders, the husband’s 35 per cent entitlement shall include the proceeds of sale of the [omitted] motorcycle of $7,250.00 and the boat and trailer valued at $5,000.00, and the wife’s 65 per cent entitlement shall include the proceeds of sale of the 1998 [omitted] Sedan.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BENDIGO

MLC 3095 of 2010

MR CAMP

Applicant

And

MS VANCE

Respondent

REASONS FOR JUDGMENT

Introduction

This matter relates to the living arrangements for the parties’ children [X] born [in] 1999 (“[X]”), [Y] born [in] 2002 (“[Y]”) and [Z] born [in] 2007 (“[Z]”). It also relates to the division of property.
Whilst it was the father’s initial application that he and the mother have equal shared parental responsibility for [X], [Y] and [Z] and that they live with him, at the final hearing he indicated he sought a shared care arrangement as he had recently moved to live in [W] and was thus geographically closer to the children. The father also seeks an equal sharing of holidays and special occasions.
In relation to property matters, the father seeks an order that the parties’ joint assets, including superannuation entitlements, be divided 60:40 in the mother’s favour.
The father gave no explanation as to the basis on which such a division of property would be just and equitable.
In her Outline of Case, the mother indicated that she sought orders that she have sole parental responsibility for [X], [Y] and [Z], that they live with her and spend time with the father every fourth weekend from after school Friday to the start of school Monday. The mother also seeks that [X] spend an additional weekend with the father each month from after school Friday to 5.00 pm Sunday. The mother sought orders that special days be shared but did not propose any orders for the sharing of school holidays.
When the mother’s Counsel closed the mother’s case, she indicated that in the event the court were to order that [X], [Y] and [Z] spend alternate weekends with the father, the mother proposed [X] additionally spend each Wednesday evening with the father to enable them to have one-on-one time.
The mother seeks orders that when [X], [Y] and [Z] spend time with the father, he not allow them to come into contact with his partner

Ms M.
The mother also seeks orders that if changeover does not take place at school, it take place at the [W] Contact Centre.
In relation to property matters, the mother seeks that there be a 70:30 division of the parties’ realisable assets in her favour and that each party retain their superannuation entitlements. She argues that such a division is just and equitable as she has the primary care of [X], [Y] and [Z] and the father pays no child support.

Background

The father was born [in] 1973 and is 38 years of age. At the time of the final hearing he was unemployed, having recently been laid off as a [occupation omitted]. The father has re-partnered and lives with Ms M.
The mother was born [in] 1972 and is 39 years of age. She is currently engaged in home duties, though is a [omitted] by profession. The mother has an eldest son [A] born [in] 1994 (“[A]”) who lived with the parties during their relationship and who continues to live with the mother. The mother has re-partnered and she married her now partner Mr V [in] 2010. The mother and Mr V have a son [B] born [in] 2011 (“[B]”).
The parties commenced co-habitation in October 1998 in [N].
The parties moved ten times in 11 years. From [N], the parties moved to [L] in 2001 where they purchased a property in [R]. In November 2002 the father moved to [W] and in early 2003 the mother moved with the children to [O] where the mother obtained a [occupation omitted] position. The parties then moved to [T]. The [R] property was sold and the parties purchased a block of land in [T] with the intention of building a home. They also bought a home in [O] which they never lived in. Both these properties were sold some 12 months later.
The parties also purchased a 1998 [omitted] motor vehicle under finance. This loan was paid out when the [T] block of land sold. After separation the mother retained this vehicle. She sold it to Mr V for $7,000.00 and utilised the sale proceeds to pay her legal costs.
Whilst at [T] the parties purchased a property in [omitted]. The parties lived there for two years until that property was sold.
The parties again moved to [L] in late 2005/early 2006. They purchased a home in [L] which they sold six months later and purchased a home on one acre at [K] (near [L]).
The parties lived in [K] for three years. The mother continued to be employed as a [omitted] until she had a mild stroke in April 2008 and she was unable to work for the remainder of 2008. She received workcover payments.
In late 2008, the father accepted an offer of employment from his brother and the parties moved to [N] to enable the father to take up this position.
The parties purchased a property at Property H. It is the mother’s evidence that she and the children lived in this property for six months during which time the parties were separated. The father denies the parties were separated and says he lived in [N] during the week because of his work commitments but came home to the family on weekends.
In July 2009, the parties purchased the property at Property M (“Property M”). The parties lived in Property M until they separated in February 2010.
The mother obtained an Intervention Order against the father on

8 February 2010 which provided that she have sole use and occupation of the Property M property.
On 24 March 2010, the parties obtained interim consent orders in the Bendigo Magistrates Court that provided for [A], [X], [Y] and [Z] to live with the mother and for them to spend alternate weekends, half of school holidays, Tuesday evenings and [sport omitted] training times with the father. The orders also made provision for time on special occasions. There was also an order that in the event either party relocated from [N], the father’s Tuesday evening time would be suspended.
The children did not spend time with their father between the date of separation and the 24 March 2010 orders.
In respect to property matters, the orders provided for the mother to have sole use and occupation of Property M and that she be responsible for all mortgage and other payments. They also provided that the Property H property be placed on the market for sale, for the net proceeds of sale to be held in trust and that pending its’ sale, all rental monies received be utilised to service the mortgage and for the father to pay the rates associated with that property.
In March 2010, the mother rekindled her relationship with Mr V. They had known each other at High School but had had no contact with each other for 26 years. They started to communicate with each other through Facebook in December 2009.
On 25 April 2010, the mother and the children vacated Property M and moved to [W]. They initially lived with the mother’s parents and in or about June 2010 moved to live with Mr V.
On 26 July 2010, Walters FM made orders in the Federal Magistrates Court sitting at Bendigo which provided for the father to have sole use and occupation of Property M and for him to be responsible from the date of that order for the payment of the mortgage, rates, taxes and other apportionable outgoings.
The orders also provided that [X], [Y] and [Z] were to continue to spend time with their father pursuant to the 24 March 2010 orders, save that changeover was to take place at the [S] Police Station.
It was the father’s evidence that the mother left Property M in a messy and dirty state that required him to do 17 loads of washing and a massive clean up. This was strenuously denied by the mother.
It was the father’s evidence that he and Ms M commenced a relationship in June 2010 and that she and her two children [C] born [in] 1994 (“[C]”) and [D] born [in] 1996 (“[D]”) moved into Property M with the father in October 2010.
Subsequent to the March 2010 orders, (the court was not provided with details as to precisely when), the Property H property was sold and $33.672.00, being the net proceeds of sale, was placed in the Trust account of Beck Legal, solicitors of Bendigo.
The mortgage on Property M was not paid by either party between April and July 2010. The arrears of the mortgage of $3,482.00 were paid in September 2010 from the monies held in trust by Beck Legal.
In October 2010 there was a confrontation between the parties at changeover. The mother obtained an interim Intervention Order in October 2010. After a defended hearing in July 2011, an Intervention Order was made against the father for 12 months.
The matter came before the court on 23 November 2010. Orders were made for the arrears of the 2009/2010 rates for Property M (for which the parties had been sued by the Council) to be paid from the monies held in trust by Beck Legal and that the ultimate liability for the rates arrears be determined at trial. It was ordered the father otherwise be responsible for the rates on Property M from 1 July 2010 onwards.
The 23 November 2010 orders also clarified the time that [X], [Y] and [Z] were to spend with the father over the long summer vacation.
In December 2010, whilst [X], [Y] and [Z] were spending time with their father, there was an altercation between Ms M, the father and

Ms M’s children [C] and [D] over [C]’s use of a banned mobile phone. As a result of the altercation, [C] and [D] left the home and went to the Police station where they made complaints to the Police and the Department of Human Services. [C] and [D] alleged their mother had been drinking to excess and that the father had punched [C] in the chest. The matter remains under investigation by the Department of Human Services and is still before the Children’s Court.
As a result of this incident, neither [C] or [D] live with their mother and there are, I believe, Children’s Court orders requiring that they have supervised time only with her.
As a result of this incident, the mother filed an urgent Application in a Case which came before me on 28 February 2011. Interim orders were made which provided for [X], [Y] and [Z] to spend the first weekend in every four week cycle with the father from 6.30 pm Friday to 6.30 pm Sunday, for changeover to take place at [S] Police Station and for the father to complete an accredited anger management course. The orders also provided for Ms M not to be present when [X], [Y] and [Z] spent time with the father.
When the matter came before the court for final hearing, the father gave evidence that he and Ms M had recently relocated from [N] to [W]. It was on this basis that he argued a shared care arrangement was practical and in [X], [Y] and [Z]’s best interests.
In relation to Property M, the father gave evidence that the property was on the market for sale and there was a party interested in its’ purchase. He conceded that despite the orders that he be responsible for same, the mortgage and rates on Property M were in arrears but argued that any arrears should be paid from any proceeds of sale prior to distribution to the parties.
The court was also advised that despite the court’s orders that the arrears of the rates on Property M for 2009/2010 be paid from the monies held in trust, they had not been so paid as the father had not provided Beck Legal with his written authority to enable payment.
The mother makes very serious allegations of domestic violence, including rape, perpetrated against her by the father during the course of their relationship. She reported these matters to the Police after separation and the Police are continuing to investigate these allegations. The father categorically denies all allegations of violence against him.

CHILDREN’S MATTERS

The father’s evidence

As set out earlier in this judgment, it is the father’s proposal that [X], [Y] and [Z] live equally with each of their parents and that school holidays and special days be shared.
It was the father’s evidence that he has a very close and loving relationship with [X], [Y] and [Z] and that [X] in particular has been severely impacted by the limited time he has been able to spend with him since separation.
It was the father’s evidence that during the relationship he was a very “hands on” father who shared in the parenting of [X], [Y] and [Z].
The father gave evidence that he and [X] and [Y] were very involved in competitive [sport omitted], training together and travelling around Victoria on weekends for competitions.
It was the father’s evidence that [X] and [Y] were very unhappy when they initially moved to [W] with their mother, and that they missed him, their school and their friends. It was his evidence both boys told him they wanted to live with him. The father agreed however that both [X] and [Y] were now much more settled and happy in [W] and were clearly:
“in a much better place.”

It was the father’s evidence that [X], [Y] and [Z] become very unhappy when it is time to return to their mother after spending time with him. It was his belief that this indicated that [X], [Y] and [Z] are not happy in their mother’s care. When challenged in cross-examination that their unhappiness could be related to them missing him rather than any problems in their mother’s home, the father did not accept this as a possible explanation for the children’s unhappiness.
The father expressed concerns about [X] and [Y]’s progress at their schools and questioned the mother’s commitment to their education, especially given that she is a [occupation omitted].
The father was cross-examined at length about the altercation that took place in December 2010 involving Ms M and her children [C] and [D]. It was the father’s evidence that [C] had had her mobile phone confiscated because of inappropriate behaviour. She had a “back up” phone and when this came to light there was a heated argument between Ms M and her children. [C] and [D] left the house saying they were going back to live with their father in Melbourne.
It was put to the father that [C] had alleged that he had pushed her in the chest. The father denied this allegation. It was his evidence that he supported Ms M in requiring that the ground rules that had been set for her children’s behaviour be adhered to, but otherwise claimed there was no incidences of violence involving either of [C] or [D].
Before the court were the Police and Department of Human Services files that had been subpoenaed relating to this incident. The father was cross-examined as to their contents. In particular the father was questioned as to records in the Police file which indicated that whilst at the Police Station Ms M was observed to be affected by alcohol and very aggressive. In relation to the allegations that Ms M was alcohol affected, it was put to the father that [C] and [D] told the Department of Human Services their mother was a chronic alcoholic and had drunk two bottles of wine on the evening of the incident.
It was the father’s evidence that Ms M had only had a couple of glasses of wine and she was not adversely affected by alcohol. It was his evidence that she was not aggressive but rather was very upset and distressed at the situation and had gone to the Police Station to ask for their assistance in what was a very difficult situation.
The father gave evidence that he had at no time during his relationship with Ms M known her to drink alcohol to excess.
The father denied [C]’s allegation that he had pushed her in the chest or at any time been physically abusive to either her or [D].
The father confirmed that [X], [Y] and [Z] were in his care at the time of this incident. It was his evidence that it was [X] who told he and

Ms M that [C] still had a mobile phone. The father indicated that the children had not been upset by what had occurred but rather bemused as to why [C] had not done what she had been told.
The father was asked if Ms M would be attending court to give evidence on his behalf. It was his evidence that he was not intending to call her as the matter was about his children and his property. It was explained to the father that given the seriousness of the allegations against Ms M, her failure to give evidence would leave open the possibility that the court would draw a negative inference from her failure to attend court.
The father was therefore given the opportunity to have Ms M give evidence on the second day of the hearing. On the second day of the hearing, the father advised the court Ms M was unable to appear as her employer would not allow her time away from work to attend court. Ms M’s employer faxed a letter to the court in which they indicated she was:
“unable to get time of (sic) work”
as she was the only employee trained for her position.
It was the father’s evidence that [X], [Y] and [Z] have a good relationship with Ms M and that she was not a risk to the children. He indicated that he and Ms M are in a committed relationship and were intending to buy a home together. The father was strongly of the view that there was no need for there to be any orders that restricted Ms M from being present when [X], [Y] and [Z] were spending time with him.
In relation to the mother’s allegations that she was the victim of ongoing domestic violence and rape during their relationship, the father strenuously denied all such allegations. As the Police investigations into those allegations are ongoing, the father was formally warned by the court that any evidence he gave could be used in those investigations. Accordingly the father declined to answer any questions relating to these alleged incidents.
The father further denied the mother’s evidence that there had been multiple separations and reconciliations during the relationship. It was the father’s evidence that there had been periods when the parties did not live together but these were related to him working away from home and that he had always returned to the family on weekends.
The father was questioned as to why he continued to require that changeover for his time with [X], [Y] and [Z] take place in [S] given that he was now living in [W]. It was his evidence that this was the most convenient changeover location as he spends his weekend with the children in [N] at Property M or in [L] with his parents. He denied he insisted on [S] in order to inconvenience the mother.
The father gave evidence in relation to an incident that took place at changeover for his time with [X], [Y] and [Z] on the weekend preceding the final hearing. It was the father’s evidence that because of the Intervention Order the mother obtained in June 2011, he is prohibited from coming within 20 metres of the mother. The father’s evidence was that when he arrived at [S] Police Station at the conclusion of his time with the children, he saw the mother’s car parked directly outside the Police Station. He therefore parked some distance away and watched the children enter the Police Station. It was his evidence that Mr V came out of the Police Station, gestured at him and said in an aggressive tone:
“Go, just go.”
The father was questioned as to the parties’ ability to communicate and co-parent [X], [Y] and [Z]. It was his evidence that he and the mother were unable to communicate and that this has been exacerbated by the Intervention Orders the mother has taken out against him. When specifically asked how to address this issue, the father replied:
“I don’t know. I didn’t create the problem.”
However, when further cross-examined on how the parties could

co-parent their children into the future, the father gave evidence that he wanted their communication to improve as he was of the view that [X], [Y] and [Z] needed both their parents involved in the major issues impacting on their lives.

The mother’s evidence

The mother

As previously set out in this judgment, it is the mother’s proposal that she have sole parental responsibility for [X], [Y] and [Z], that they live with her and spend time with the father every fourth weekend from after school Friday to before school Monday, and there be provision made for time on special occasions. She also proposes that [X] spend an additional weekend with the father each month.
In her closing on behalf of the mother, Counsel indicated that the amount of time that [X], [Y] and [Z] spend with their father was “the least important” aspect of the issues for the children as they clearly need to spend time with him.
It was the mother’s evidence that her relationship with the father was one where she was physically and emotionally abused and that when the parties first separated, her immediate response was to protect herself, [X], [Y] and [Z].
The mother conceded that [X] and [Y], and [X] in particular, really struggled with the parties’ separation and with initially not seeing their father.
It was the mother’s evidence that with intensive counselling and a lot of hard work on her part, she now accepts that it is important for [X], [Y] and [Z] to have a relationship with their father. She noted he will be their father for the rest of their lives, that they want and need that relationship and that because her relationship with him is over, it does not mean the children’s relationship is.
It was the mother’s evidence that she wanted to ensure that [X], [Y] and [Z]’s relationship with their father happened in a safe and happy way.
In relation to [X], it was the mother’s evidence that [X] has been the child most impacted by his parents’ separation. He is very close to and protective of his father. He has struggled academically throughout his schooling, having difficulty with English and Maths and staying on task. He had a great deal of difficulty when he first changed schools but his report at the end of Semester 1 2011 was very positive and showed he was much more settled and had made very positive gains academically.
[X]’s school reports from Year 4 at [omitted] Primary School and from [omitted] Primary School for 2010 and Semester 1 2011 were made available to the court and confirmed the mother’s evidence that [X] was much more settled and working much better at school in 2011.
In relation to [Y], it was the mother’s evidence that [Y] has been diagnosed with dyspraxia, a condition which is within the Autism Spectrum that causes delayed motor development. [Y] has received intensive therapy from an early age and is now progressing very well academically and socially. He is in Grade 3 at [omitted] Primary School, [extra-curricular activities omitted].
The mother described [Z] as a bright and bubbly four year old who is at kindergarten this year and due to start school in 2012.
It was the mother’s evidence that [X], [Y] and [Z] are very close to their older brother [A] and adoring of their new baby brother [B].
The mother also described a very positive relationship between [X], [Y] and [Z] and Mr V.
The mother expressed ongoing concern about Ms M. It was her evidence that she only found out about the December 2010 incident when [X], [Y] and [Z] returned after their time with their father. She questioned why the father had not notified her of this incident at the time it occurred.
It was the mother’s evidence that she subsequently received correspondence from the Department of Human Services alerting her to their concerns about Ms M and suggesting she act protectively in relation to the children, especially whilst they completed their investigations. The mother expressed frustration at there being no outcome as yet of the Department of Human Services investigations and the issues raised as to what risk Ms M poses to the children, especially in relation to the allegations of domestic violence and alcohol abuse in the father’s home.
The mother is concerned that the father exposes [X], [Y] and [Z] to his negative views of her, to these proceedings and shows them inappropriate documents. She gave evidence of [X], [Y] and [Z] knowing of the Intervention Orders she has taken out against the father.
The mother gave evidence of [X] being highly distressed as a result of the father telling him they had considered an abortion at the time the mother first became pregnant with him. The father absolutely denied ever having this discussion with [X].
It was the mother’s evidence that there had been a number of incidents at changeover where the father has behaved aggressively towards her and Mr V. She also raised concerns about the father making changeover more difficult for [X], [Y] and [Z] by his reluctance to leave the children and by not shielding them from his distress at their leaving him.
In relation to the most recent incident at changeover, it was the mother’s evidence that the father was late in arriving and had not responded to text messages from her trying to ascertain when he and the children would arrive. She and Mr V went into the Police Station and shortly thereafter the children arrived. Mr V saw the father standing between the Police Station and their car and went outside and told him to leave.
It was the mother’s evidence that she was not opposed to [X], [Y] and [Z] having additional mid-week time with the father but sought that such time not be overnight. It was her view this would:
“get around the Ms M problem”
but allow the children to spend further time with their father.
It was the mother’s evidence that she is unable to communicate with the father, though she agreed that if she and the father are to co-parent they will need to communicate effectively and was not opposed to child-related electronic communication.

Mr V

Mr V is the mother’s husband. He swore an affidavit on 25 July 2011 and gave viva voce evidence at the final hearing of the matter.
It was Mr V’s evidence that he has a positive relationship with [X], [Y] and [Z] and that all children are much more settled and happy this year.
It was Mr V’s evidence that at the recent changeover, the father was late in returning [X], [Y] and [Z]. He and the mother went into the Police Station and the children then walked in. It was his evidence that he saw the father standing not far from their parked car. Mr V indicated he then walked from the Police Station and gestured for the father to leave and said for him to:
“go, just go.”
He denied being aggressive or intimidating in any way and stated that he was just trying to ensure there was no incident between the parties.

Ms B

Ms B, psychologist, prepared a Family Report in this matter dated 20 September 2010. It was placed before the court by way of her affidavit filed 11 January 2011.
At the final hearing of the matter, none of the parties relied upon

Ms B’s Report and she was not called to give oral evidence.

Dr W

Dr W is a Regulation 7 Family Consultant with the Federal Magistrates Court. Dr W prepared an Updated Family Report in this matter dated 20 July 2011. Dr W also gave viva voce evidence at the final hearing of this matter.
In her Report, Dr W recorded her observations of [X], [Y] and [Z] with each of their parents, as well as their parents’ partners.
In paragraph 60 of her Report, Dr W observed as follows:
60.Despite the fact that the children have had only relatively little time with their father compared to their mother since separation; they appear to have formed a strong bond with both their mother and their father, interacting with them in a way that suggests that they see them both as safe and loving figures in their lives.
In relation to the interactions of [X], [Y] and [Z] with their father, in paragraph 61 of her Report, Dr W made the following observations:
61.Mr Camp was very interactive with the children, and he allowed the children to direct their play and remained involved throughout the session. He was particularly affectionate and attentive to [X], but was still good at interacting with all three children, he provided praise and encouragement, he tried to be educative, he was good at sorting out their squabbles, he was quite affectionate and loving and caring with the children, and there was lots of easy chatter, joking, laughter and fun between them. The children were in turn very responsive to their father.
In relation to [X], [Y] and [Z]’s interactions with their mother, Dr W commented in paragraph 62 of her Report as follows:
62.The children were all happy to see their mother, and

Ms Vance was also very interactive with the children, and she also remained totally involved in their play throughout the session. Ms Vance was very positive and appropriate with the children, she was educative, she gave praise and encouragement, she was mindful of their individual needs and noticed how quiet [X] was at first, and focused on him when it was needed, and there was lots of easy chatter, laughter and fun between them all too. The children were also very responsive to their mother… The children were very happy and easy going in their mother’s company, and it was easy to see that they have a close positive relationship.
In relation to the father’s partner, Ms M, Dr W noted in paragraph 61 of her Report that [X], [Y] and [Z] were very responsive to Ms M when she was invited in, that they involved her in their play straight away and that overall they appeared to really enjoy their time with both their father and Ms M, and appeared very comfortable and secure in their presence.
In relation to the mother’s husband Mr V, Dr W noted in paragraph 62 of her Report that [X], [Y] and [Z] were very responsive to Mr V, and that they appeared to enjoy their time with their mother and Mr V and were very comfortable and secure in their presence.
In paragraph 62 of her Report, Dr W also noted the very close relationship that [X] and [Y] have with their elder brother [A].
In relation to [X], Dr W described him in paragraph 45 of her Report as a reasonably polite, somewhat reserved and reasonably intelligent boy who can get quite emotional and who ultimately just wants his parents to get back together.
Dr W noted [X] to be very protective of his father and to be very careful about what he said and didn’t say about his father, often correcting himself when he thought he might have said something that would be detrimental to his father.
In paragraph 46 of her Report, Dr W reports as follows:
46.[X] articulated to the writer that he would like additional time with his father, possibly every second weekend as his mother had allegedly suggested and also Monday nights for [sport omitted], and even another night for dinner. [X] also reported that he would be happy with shared care, but when asked, he stated that he would miss his mother if he were to reside primarily with his father.
Dr W reports in paragraph 50 of her Report that she asked [X] about the changeovers between his parents when he spends time with his father and that [X] said as follows:
“dad drops us in [S] because he stays in [W] during the week and picks us up ... then on the weekends we go to [N] ... and then he drops us half way ... I think he waits a bit before going to [W] ... yeh he doesn’t drop off to [W] because it’s unfair ... yeh ... even if he is going to [W] afterwards it is still unfair for him ... I don’t know if he drives to [W] straight away or goes back to [N]”.
Dr W reports that she asked [X] why he didn’t want to get into the car with his mother at changeovers and reports in paragraph 49 of her Report as follows:
49.…[X] reported that it was because he didn’t want to go back to his mother’s because he’d spent most of his time with his mother and only a few days with his father and he just wanted more time. He stated “it had nothing to do with not liking it at mums ... I just wanted more time with dad…
In relation to [X]’s relationship with his parents’ respective new partners, Dr W reports at paragraph 51 of her Report as follows:
51.[X] reported positive things about his mother and father, and also about his mother’s partner Mr V, and his father’s partner Ms M.
In relation to the incident that took place in December 2010,

Dr W indicates that [X] told her that:
“he was there during the incident over the Christmas 2010/2011 holidays whereby [C] alleges Mr Camp hit her, and [X] insists that this is not true, and rather that his father found out [C] had a mobile phone when she wasn’t supposed to, and she ([C]) got angry and took off. [X] reported that Ms M is good with her kids, and that she treats them fine.”
In relation to [Y], Dr W describes him as being more of a happy go lucky, quite well-adjusted, reasonably intelligent and more emotionally adept boy than [X].
In paragraph 54 of her Report, Dr W notes the following:
54.[Y] made it very clear that he wants to remain residing with his mother, stating that he would miss his mother if he resided with his father; although he did say that he would like to spend more time with his father.
Further in paragraph 56 of her Report, Dr W reports:
56.[Y] also reported that he like living with his mother, but he just wanted to spend more time with his father.

In paragraph 57 of her Report, Dr W sets out [Y]’s feedback to her in relation to the December 2010 incident. She reports as follows:
57.Like [X], [Y] also reported that Ms M was a good mother to her children, and that his father had not hit or hurt Ms M’s daughter [C] at Christmas 2010/2011, stating that he didn’t know why they were arguing, and he didn’t know what she was angry about, but he insists that his father did not hit her as she has claimed. [Y] also reported that his father and

Ms M get along well, and they do not often argue or get angry with each other, at least when they are there.
In relation to [Z], Dr W describes her at paragraph 58 of her Report as being a happy, talkative, well-adjusted, quite loud, confident and reasonably happy girl.
In relation to [Z]’s wishes, Dr W in paragraph 59 of her Report sets out the following:
59.[Z] understood that she lives with her mother and sees her father sometimes, but not often, stating that she would like to see him a bit more, but that she likes coming home to her mother after visits. Ultimately [Z] made it clear that she wouldn’t want to be away from her mother for too long, but that she likes spending time with her father.
In relation to [Z]’s relationship with each of her parents’ respective new partners, Dr W stated as follows:
“[Z] also reported that she likes both her father’s partner Ms M, and her mother’s partner Mr V.”
At the conclusion of her Report, under the heading “Recommendations”, Dr W set out the following:
79.Based on the information available and the issues discussed above, it is recommended that the children remain residing primarily with their mother.
80.If the Court were to find the father to be of minimal physical and/or emotional risk of harm to the children, it is recommended that the children spend time with their father every second weekend, from after school Friday until the start of school Monday; and that the father takes [X] and [Y] to [sport omitted] on Mondays; and that [X] spends time with his father each Wednesday night for dinner, with the option of [Y] joining this dinner at a later date.
81.A further option would be for the father to take [Y] to [sport omitted] on Fridays, and to also spend time with [X] on these Friday nights too.
82.It is also recommended that the children spend half of all school holidays with their father, but for no more than a week at a time.
83.However, if the Court were to find the father to be of more significant risk of harm to the children, then it is recommended that [Y] and [Z] continue to spend time with their father every fourth weekend from after school Friday until the start of school Monday because of their age and stage and the potential for possibly more significant harm; whilst [X] spends time with his father every second weekend from after school Friday until the start of school Monday because he has expressed such a desire to spend more time with his father, and because the reality is that he seems to be struggling without the significant contact with his father; and that the father takes [X] and [Y] to [sport omitted] on Mondays; and that [X] spends time with his father each Wednesday night for dinner, with the option of [Y] joining this dinner at a later date, because daytime contact of minimal duration leaves less potential for harm than overnight and weekend contact.
84.Further, if the Court were to indeed find that it is likely that Mr Camp has been the perpetrator of domestic violence against Ms Vance, then it is recommended that he attend a domestic violence behaviour change program and/or counselling to address these issues, and also an anger management program and/or counselling.
85.It is also recommended that if the parties have not already done so, that they both attend an appropriate

post-separation parenting program, in order to gain insight into the children’s needs in relation to them being a separated family.
86.The issue of whether Ms M should or should not be present for contact between the father and his children is something I believe the Court needs to address; but as mentioned above, on my observations alone, she was positive and appropriate with the children, and it would appear that the children have a positive relationship with her, and there were none of the symptoms present that you might expect if she were somehow a risk or a danger to them emotionally or physically.
When giving her viva voce evidence, Dr W was specifically cross-examined in relation to the issue of parental responsibility for [X], [Y] and [Z].
Whilst acknowledging the difficulties that these parties have in communicating, particularly face to face, Dr W was of the view that, like many parents, they would be able to satisfactorily communicate electronically via text message and email.
Dr W noted that given the allegations made by the mother against the father of ongoing violence, the need for regular communication between the parties in relation to the arrangements for the children may be distressing for the mother. However Dr W was of the view that the question of parental responsibility should be determined on the basis of what is in the best interests of the children and she was of the view that shared parental responsibility would be in [X], [Y] and [Z]’s best interests.
It was Dr W’s evidence as follows:
“The children want their father involved… If we say that he’s not allowed to have that parental responsibility, that will make it easier for the mother but creates a situation where the children are not getting his input as well… My preference would be for them to be able to communicate and still have that parental responsibility shared.”
Dr W was also cross-examined at length in relation to the question of Ms M, and in particular whether the restriction on Ms M being present when the children are spending time with their father should remain in place.
The limited and untested evidence that is before the court in relation to Ms M was summarised for Dr W’s benefit, as were the difficulties faced by the court in Ms M not giving evidence to the court.
It was Dr W’s evidence that she was very concerned about the potential risk to [X], [Y] and [Z] in spending time with Ms M given the history that had been described to her. In particular she was concerned that it appeared that Ms M has quite a long history in relation to excessive alcohol use and domestic violence.
It was Dr W’s evidence as follows:
“I have to really focus on the children and their best interests, and I think that it would be in their best interests not be around her… given this information. I guess my major concern is the acting out, and the possibility that it can happen in front of the children, and the children being exposed to the domestic violence when the two are together.”
When further questioned in relation to these matters, Dr W stated as follows:
“I think that my concern would be any kind of – the Camp children being exposed to any kind of domestic violence between the two and also any kind of long term alcohol issues.”
Dr W discussed her concern that any restraint on Ms M on a long-term basis would make it very difficult for the father and [X], [Y] and [Z] to spend regular time with each other. She raised the possibility of there being positive interventions to assist Ms M, including long-term counselling from an appropriately qualified drug and alcohol counsellor.
Dr W concluded her evidence with the following observations:
“If we take Ms M out of the picture I think that the children need every second weekend contact with the father. That’s what they want. They are going to benefit from that in my opinion… The once a month is just really not enough. But, then, when we bring Ms M back into the picture, the every second weekend thing, if she’s living with him, I don’t know how that’s going to work. And that’s why, I guess, initially, I was talking about… possibly that her not being there being short-term until she gets… until we get some kind of proof that she’s got some help and then possibly the father being the supervisor at a later stage.”

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Section 61da of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this matter, the father is seeking an order that there be equal shared parental responsibility for [X], [Y] and [Z]. The mother is seeking an order that she have sole parental responsibility for the children.
It was the father’s submission that he wishes to be fully involved in [X], [Y] and [Z]’s lives, and particularly in relation to important matters such as their education, involvement in extra-curricular activities and decisions in relation to their health.
Whilst the father conceded that he and the mother have real difficulty communicating and that he was at a loss as to how their communication could continue, at least on a face to face basis, he was committed to attempting to co-parent more positively with the mother in order to be able to be involved more fully in his children’s lives.
The father was not opposed to communication electronically by text message and email.
The mother argued that the parties’ inability to communicate made it nigh on impossible for she and the father to make mutual decisions in relation to matters relating to [X], [Y] and [Z].
It was submitted on behalf of the mother that given the parties’ inability to communicate, if they were unable to agree, she as the children’s primary carer would have to make the decisions in relation to the children, their schooling, activities and general health matters.
The mother makes very serious allegations of ongoing domestic violence at the hands of the father during the course of their relationship. It was her evidence that being required to communicate with the father on a regular and ongoing basis in relation to the children would be extremely difficult and distressing for her.
The Family Report Writer, Dr W, was specifically cross-examined when she gave evidence in this matter as to the issue of parental responsibility. It was her evidence that whilst an order for sole parental responsibility in the mother’s favour would be easier for her, when considering that matter from the perspective of the children Dr W was of the view that they would benefit from their father having input into these important matters in their lives. In those circumstances, Dr W recommended that an order be made for equal shared parental responsibility.
It was Dr W’s evidence that whilst the parties were unable to communicate effectively, or at all on a face to face basis, communication via email and text message was possible and that this form of communication worked for many parents in being able to effectively consult in relation to decisions relevant to their children.
Counsel for the Independent Children’s Lawyer also indicated to the court that the Independent Children’s Lawyer was of the view that it would be in the best interests of [X], [Y] and [Z] if both their parents were involved in the major decision-making for them and accordingly recommended to the court that an order for equal shared parental responsibility be made.
Section 61da(2)(b) of the Act provides that the presumption for equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the children has engaged in family violence.
In this matter, the mother makes very serious allegations of family violence committed by the father against her during the course of the relationship.
In paragraph 76 of her Family Report, Dr W observed that many of the issues in this case remain undetermined but her clinical observations were clear and that such clinical observations must be key factors for decision-making. Dr W then went on to say:
“My observations suggest that Ms Vance presented as being more credible than Mr Camp, and particularly because her symptoms and emotional presentation was so consistent with what you would expect from someone who has been a victim of domestic violence, and certainly the writer was reassured by the fact that both the Victoria Police staff and the CASA staff, and to a lesser degree [X]’s psychologist, also share similar views about

Ms Vance being credible.”
Dr W then went on to say in paragraph 76 of her Report:
“In contrast there was something lacking or just not quite right about Mr Camp’s presentation and reports, and again it seems that both the Victoria Police staff and the CASA staff, and to a lesser degree [X]’s psychologist seems to share this view, with

Mr Camp presenting as being less credible, and possibly playing games and being manipulative.”
It is noted that even within the constraints of these observations,

Dr W recommended that an order be made for equal shared parental responsibility.
Because the court was unable to test the parties’ evidence in relation to the mother’s allegations of serious violence during the relationship, the court is not in a position to make any findings as to whether such violence occurred.
Ultimately, the factor that determines whether an order should be made for equal shared parental responsibility is whether it would be in the best interests of [X], [Y] and [Z].
Given the observed loving, caring, positive and appropriate relationship that exists between the father and the children and their clearly expressed wishes to spend more time with him, I am of the view that [X], [Y] and [Z] would benefit from their father having an ongoing involvement in the major decisions relating to their development. Accordingly, I intend to make an order that the parties have equal shared parental responsibility for [X], [Y] and [Z].
Where the parents have equal joint parental responsibility for a child, section 65daa of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. Section 65daa(1) of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.

The father is seeking orders that [X], [Y] and [Z] spend equal time with he and the mother, whilst the mother’s proposal is that [X] spend significant and substantial time with the father, but that [Y] and [Z] spend only limited time with their father, being one weekend each month.
Whether the court orders equal time, significant and substantial time or some other arrangement, it is the best interests of the children that are paramount.
When determining what is in the children’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in those subsections, where relevant, must be considered and assessed in the context of each of the parties’ proposals and a decision made as to which party’s proposal, or such other arrangement as the court may determine, is in the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the children’s best interests. They are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

It is quite clear that [X], [Y] and [Z] have a close, loving and meaningful relationship with both the father and the mother.
To their credit, both parents were able to acknowledge that their children had such a relationship with both of them.
Dr W, in her observations of [X], [Y] and [Z], confirmed the loving relationship that the children have with each of their parents and confirmed the strong bond that they have with both of them.
[X], in particular, seems to have a very close relationship with his father and the mother acknowledges that the limited time that [X] has spent with his father since separation has caused him considerable distress. Her own proposals make provision for [X] to spend additional time with his father on a one-on-one basis to enable that close relationship to continue.
The real question for the court is whether the mother’s proposal in relation to all three children would enable their meaningful relationship with their father to continue and to grow. Dr W raises real concerns that the mother’s proposal does not enable sufficient time between the father and the children for the meaningful relationship between them to continue.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This judgment has already discussed the serious allegations of family violence made by the mother against the father during the course of their relationship.
The judgment has also canvassed the incident between the father’s partner, possibly the father and the father’s partner’s children that took place in the presence of [X], [Y] and [Z] in December 2010.
The difficulty for the court in relation to both these matters is that there was insufficient evidence before it to be able to make any findings in relation to what occurred in relation to those matters.
What is apparent from the evidence is that whatever may have been the level of conflict between the parents, they have been able to successfully shield [X], [Y] and [Z] from their personal conflict. Whilst the children are aware that their parents are no longer together and that they no longer like each other, none of them reported to Dr W concerns about their safety with either of their parents and more importantly none of them spoke about observations of their parents’ conflict. For this, both parents are to be highly commended.
The incident involving Ms M and Ms M’s alleged history as, in part, disclosed by the subpoenaed material is much more difficult.
Whilst the father was given every opportunity to call Ms M to give evidence on his behalf, he did not do so. The father was put on clear notice that if he failed to call Ms M then the court would have open to it the option to draw an adverse inference that Ms M had not been called because the evidence she would have given would have been disadvantageous to the father.
Given the seriousness of the December 2010 incident, and the matters contained in the subpoenaed material, I am of the view that the court has no other option but to draw that adverse inference in respect to

Ms M’s failure to give evidence on the father’s behalf at the final hearing of this matter.
In these circumstances, the court therefore must have concerns as to what risk Ms M poses to [X], [Y] and [Z] if she were to be present when they are spending time with their father.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account by the court when determining what is in the children’s best interests. Each of these will be considered in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

As noted previously in this judgment, all three children have expressed the desire to be spending more time with their father than they are currently spending. This was particularly so for [X].
[X] indicated that he would be happy with a shared care arrangement between both his parents. He indicated that he would miss his mother if he were to reside primarily with his father.
In her Family Report, Dr W indicated that [Y] made it very clear that he wants to remain living with his mother as he would miss her if he lived with his father.
Similarly, Dr W notes in her Report that [Z] made it clear that she wouldn’t want to be away from her mother for too long, but that she liked spending time with her father.
Dr W also indicated that [X], [Y] and [Z] all indicated that they had a positive relationship with both parents’ new partners, Mr V and Ms M.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

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

As noted, [X], [Y] and [Z] have a close and loving relationship with both of their parents.
Whilst the father challenged that the mother had been the children’s primary carer, it was clear from [X], [Y] and [Z]’s discussions with

Dr W that the mother always has been and continues to be their primary carer and the person most involved in their daily lives.
Having said that, it was also apparent that the children were very close to their father, and particularly [X] and [Y] enjoyed their involvement with their father in [sport omitted].
[X], [Y] and [Z] were observed to be very close to their older brother [A] and to dote on their new little brother [B].
As noted, [X], [Y] and [Z] also have positive relationships with both their parents’ new partners, Mr V and Ms M.
It would also appear that the children spend time with both their maternal and paternal extended families. It is the father’s evidence that he often takes the children to visit his parents in [L] when they are spending time with him, particularly as his father is not well. Similarly the mother’s parents live in the [W] area and the children regularly spend time with them.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
When the parties first separated, there was a period of six to eight weeks when [X], [Y] and [Z] spent no time with their father. This was distressing to the children, particularly [X] and [Y], who found this separation from their father most difficult.
It was the mother’s explanation that at this time she was leaving a violent and intimidating relationship and her actions in not allowing time between the children and their father was as a result of her wanting to maintain her and the children’s safety. The mother also indicated that at this time she had concerns about the mental health of the father as there was some suggestion that he had considered self-harm during this period of adjustment.
Shortly after consent orders were made in the Bendigo Magistrates Court in March 2010, the mother moved with the children from [N] to [W]. This made mid-week visits impossible. It was the mother’s evidence that she had flagged the possibility of this move at the time that the orders were made and it was on this basis that a provision was included in the orders that in the event that either of the parties moved from the [N] region that mid-week time would stop.
It was the mother’s evidence that, despite her own personal issues with the father, through intensive counselling she has been able to come to the realisation that it is important for [X], [Y] and [Z] to have a relationship with their father as they love him and he loves them. She indicated that she now realises that whilst her relationship with the father is over, the children will always wish to have a relationship with him and she is supportive of that. It is to her credit that she has been able to move to this place, particularly if her allegations of domestic violence are factual.
It is of some concern that since the father’s move to the [W] area in May 2011, being the township where the mother resides, he has continued to insist on changeover taking place in [S], save for two occasions when, by agreement, that changeover took place in [W].
The mother is of the view that the father is doing this to make things difficult for her. It is the father’s evidence that because of the restraining orders preventing Ms M spending any time with the children when they are in his care, he has been seeing the children in the Property M property in [N] and that in those circumstances the [S] changeover has continued to be a midpoint for both of them.
The difficulty with this argument is that given the father is now living in [W], the question has to be would he not have otherwise been travelling back to that area on the Sunday night himself in order to be able to go to work or resume cohabitation with Ms M.
This therefore leads to the conclusion that the father is being deliberately difficult, a conclusion more open to being drawn in light of [X]’s comments to Dr W as set out previously in this judgment that changeover continuing to take place at [S] was “fair”.
It is also of some concern that during the long summer vacation when [X], [Y] and [Z] were spending extended time with the father, there seems to have been minimal opportunity afforded to them to speak to their mother. It was the father’s evidence that the children did not ask to speak to their mother. However there is no evidence that the father actively encouraged those calls to be made. This is particularly concerning in relation to [Z], who would have been spending more time away from her mother than she ever had previously in her short life.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

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

Both parties are living geographically close to each other which will enable any orders of this court to be put in place. Their close geographical proximity will also enable the father to enjoy mid-week time with one or all of the children on a regular basis.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

As noted above, both parents live in close geographic proximity to each other and are intending to continue to do so.
Given the difficulties that the parties have experienced in relation to changeover, even as recently as a week prior to the final hearing of this matter, this close geographical proximity will enable changeover to take place at the children’s school without difficulty and also enable the parties to take advantage of the [W] Contact Centre changeover facility.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

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

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

As noted earlier in this judgment, [Y] was diagnosed at a young age with dyspraxia, a condition within the Autism Spectrum. It is apparent with intensive therapy, [Y] has been able to overcome many of these issues and his school reports show him as progressing at an age appropriate academic and emotional level.
[Y] is also involved in [sports omitted], which confirms that he is enjoying an active, age appropriate social and sporting life as well.
[X] is described as a boy who is highly emotional and both parents concede that he has had ongoing difficulties at school, both educationally and socially. [X] has been assisted in recent times with counselling through school, as well as with some stability in his living arrangements since the move to [W] in April last year.
Whilst the father was somewhat critical of the mother in his evidence and affidavit material in inferring that she had put her career before the children, and further that she was not properly attending to the needs of all children since relocating to [W], I am not in agreement with those criticisms. It is apparent that she is a caring and loving mother who, particularly since the birth of young [B] and assuming full-time home duties, has been fully available to the children and has attended to their needs appropriately.
Similarly, the mother was critical of the father in his parenting role during the relationship, alleging that he was not a “hands on” parent in this period. The very close relationship that the children, and in particular [X] and [Y], have with the father does not support the mother’s views in this regard.
I am satisfied that both parents are able to provide for the needs of their children, both emotionally and intellectually.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The parties have had a very transient lifestyle during their relationship, moving some ten times in 11 years.
After the parties separated, the mother made a decision to again move the children such that [X], [Y] and [Z] had yet another change of town and [X] and [Y] had another change of school.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

As noted previously in this judgment, both parents were somewhat critical of the other in their parenting role during the course of the relationship. I am not satisfied that these criticisms are well-justified.
Save for the first eight weeks following separation, both parties have continued to be involved in [X], [Y] and [Z]’s lives and I am satisfied that each is a responsible, loving and caring parent.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Again, as noted previously in this judgment, the mother makes very serious allegations against the father of ongoing domestic violence and sexual assault against her during the course of the relationship. These allegations are strenuously denied by the father.
As the mother’s allegations are continuing to be investigated by the Police, this court was unable to test the parties’ evidence in relation to those allegations.
Accordingly, the court is not in a position to make any findings in this regard.
As noted, Dr W made the clinical observation that the mother presented as someone who had been a victim of domestic violence and that her observations of the mother suggested that her presentation was more credible than that of the father.
That being said however, this court makes no findings as to whether such violence took place but notes that if it did, it raises serious concerns as to the father’s behaviour in this regard.
It is noted that [X], [Y] and [Z] made no reports of any observations of violence between their parents at any time and, whatever may or may not have occurred in the household when the parties were together, the children do not appear to have been exposed to any violence.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

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

When the parties first separated, each had an interim Intervention Order against the other arising from the acrimony that existed between them at that time. Those Intervention Orders were ultimately resolved by way of mutual undertakings.
Because of an incident that took place at changeover in October 2010, in June 2011 after a contested hearing, the mother obtained an Intervention Order against the father for a period of 12 months. The Intervention Order prevents the father coming within 20 metres of the mother and accordingly changeover arrangements have to conform with the terms of the Intervention Order.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is always desirable, when making orders in relation to arrangements for children, for the court to make orders that are least likely to lead to the institution of further proceedings.
In this matter, such an order may prove to be difficult, particularly in the context of the mother’s application before the court that any time the father spends with the children be to the exclusion of Ms M.
In the event that the father continues in his relationship with

Ms M, and it was his evidence that they are in a committed relationship, then it is possible with the passage of time and upon resolution of any Children’s Court proceedings or Department of Human Services involvement between Ms M and her children, that any such restraints may seek to be removed by the father in the future.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

It was the recommendation of the Independent Children’s Lawyer that orders should be made in this matter that provide for [X], [Y] and [Z] to live with their mother, spend alternate weekend, holiday and special occasion time with their father, as well as there being provision for [X] and [Y] to spend additional mid-week time with their father associated with their respective sporting activities.
It was also the recommendation of the Independent Children’s Lawyer that the court should not make an order that the father’s time with the children be conditional upon Ms M being absent. The Independent Children’s Lawyer proposed that, instead, orders should be made which put in place certain protections around the children when they were with their father and Ms M in the following terms:
·The father attend counselling as recommended by the Independent Children’s Lawyer to enable him to obtain insights in relation to the impact on children of domestic violence;
·[Ms M’s] children not be present when [X], [Y] and [Z] are spending time with the father;
·Ms M be restrained from being left alone with the children when they are with their father;
·The father be restrained from exposing the children to domestic violence; and
·The father ensure the children not be exposed to any person adversely affected by alcohol or illicit substances.

Conclusion

When the parties separated physically in February 2010, their children [X], [Y] and [Z] lived with their mother and for the first two months spent no time with their father.
In March 2010, consent orders were made on an interim basis in the Bendigo Magistrates Court which made provision for [X], [Y] and [Z] to continue to live with their mother and to spend alternate weekends, holiday time and special days with their father.
In April 2010, the mother and the children moved from [N] to [W], where the mother commenced a relationship with Mr V, who she subsequently married in December 2010. [X], [Y] and [Z] continued to spend alternate weekends with their father.
[X], in particular, found the separation of his parents very difficult, the change of school challenging and the limited time he was spending with his father most distressing. It is common ground that [X] and his father are very close.
The father commenced a new relationship with Ms M in or around June 2010, and in October 2010 they commenced living with each other as well as with Ms M’s two children [C] and [D].
In December 2010, when [X], [Y] and [Z] were spending time with their father, there was an altercation between Ms M and her children, and possibly between the father and [C], which resulted in both Police and Department of Human Services involvement, such that there are still protection proceedings before the Children’s Court.
As a result of this incident, the mother brought an urgent Application in a Case that came before me in February 2011. As a result of that Application, orders were made whereby [X], [Y] and [Z] spend every fourth weekend with their father conditional upon Ms M not being present.
The father is now seeking orders that the parties have equal shared care of their children. The mother is seeking a continuation of the existing arrangements for [Y] and [Z], but for [X] to spend alternate weekends with his father. The mother is also proposing regular mid-week time between the father and [X], but not overnight time. The mother also seeks orders that any time the children spend with the father take place in the absence of Ms M.
In interview with Dr W for the preparation of the Family Report in this matter, all three children made it very clear that they wished to be spending more time with their father than they do at the moment. Whilst [X] contemplated the possibility of a shared care regime, [Y] and [Z] were quite clear they wished to continue to live in the primary care of their mother. [X] indicated that he would miss his mother too much if he were to spend anything more than equal time with both his parents.
It is very clear to me that [X], [Y] and [Z] should be spending more time with their father and that such a regime should be alternate weekends. There should also be additional mid-week time for [X], and provision for the father to be involved in [Y]’s extra-curricular activities.
The real issue is whether such time should take place in the absence of Ms M, given the concerns that have been raised in respect to the December 2010 incident and also in respect to subpoenaed material that was placed before the court in relation to Ms M’s possible history of ongoing issues with excessive alcohol abuse and domestic violence.
As has been noted previously in this judgment, the real difficulty for the court is that the father did not call Ms M to give evidence on his behalf, despite being given ample opportunity to do so and despite it being made clear by the court that her failure to appear and give evidence may lead to the court drawing an adverse inference as to her failure to attend.
In her viva voce evidence, Dr W echoed the court’s concerns in relation to Ms M and her history and opined that in all the circumstances a conservative approach needed to be taken in order to ensure that neither of [X], [Y] or [Z] were exposed to the possibility of risk in the presence of Ms M.
Whilst the court is not in a position to make any positive or negative findings in relation to Ms M, the material placed before it pursuant to subpoenas, coupled with her failure to give evidence in the matter must cause this court serious concern about the potential risk that

Ms M poses to [X], [Y] and [Z]. In those circumstances I am satisfied that any orders made in relation to the time that the children spend with their father must be conditional upon Ms M not being present.
Given that the father and Ms M currently live with each other, it is very much appreciated that this is going to be extraordinarily difficult for the father to manage. However these orders must be about the children’s best interests and the father will have to make appropriate arrangements in his personal life to ensure compliance with orders that his time with the children take place in the absence of Ms M.
It was the mother’s proposal that there be no provision for the father to spend extended holiday time with [X], [Y] and [Z], but rather that the existing arrangements continue through the school holidays. I am not satisfied that this would be an arrangement in the best interests of the children given their close and loving relationship with their father.
Accordingly, I intend to make orders for the school holidays to be shared. In relation to the long summer vacation, such holidays will be week about in accordance with Dr W’s recommendations.
Provision will also be made for [X] to spend an evening each week with his father for a meal so that they can have the one-on-one time that [X] is needing.
Because of the difficulties that the parties have experienced in relation to changeover, when changeover is not at the children’s school, it will take place at the [W] Contact Centre, and if such Centre is not available then at the [W] Police Station.
It has to be noted that both parties concede that at this time they are unable to communicate with each other. Both gave evidence of a realisation that they needed to address these issues and it will be vitally important for [X], [Y] and [Z] that their parents find a way in which to communicate effectively about them into the future if they are to continue to shield them from the level of antipathy that they currently feel. Accordingly, orders will be made for the parties to utilise electronic communications including email and text messages, as well as a Communications Book.

PROPERTY MATTERS

Neither party placed a great deal of information before the court in relation to property matters. The parties’ viva voce evidence in relation to property issues was less than five minutes each.
The parties’ financial history together, as best can be determined from the limited evidence before the court, is set out in the background to this judgment and will not be repeated here.
In his viva voce evidence, the father indicated that Property M was on the market for sale and that there was a purchaser expressing genuine interest in purchasing the property.
The father conceded that there were arrears of mortgage of Property M as at the date of the trial of $3,873.00. He also confirmed he had not paid any Council rates. This was in breach of the court’s orders of

26 July 2010 which provided that the father be solely responsible for the mortgage payments and all outgoings in relation to Property M as from that date.
The father was of the view that as the arrears of mortgage between April and June 2010 had been paid from the monies held in trust and there was an order for arrears of rates to be paid from those funds, any arrears of the rates and mortgage that had occurred since he obtained sole use and occupancy for Property M should also be paid from the trust monies prior to any distributions between the parties taking place.
The father gave evidence that as part of any property settlement he wished to retain the boat and trailer purchased by the parties from the mother’s father during the relationship.
In her trial affidavit, the mother deposes that during the course of the relationship the parties bought and sold properties as they moved between [W], [L] and [N].
It is the mother’s evidence that during their relationship, the father was in and out of employment and that she was the primary income earner, as well as the homemaker.
The court was not told when the sale of the Property H property settled. It is known that the net proceeds of sale were $33,072.00 and by agreement $3,300.00 was utilised to pay for a Family Report from

Ms B in August 2010 and the sum of $3,482.00 was used to pay mortgage arrears on Property M for the period April to 27 July 2010.
In her trial affidavit, the mother deposes to the father retaining at separation a 2005 [vehicle omitted] that she understands the father to have traded in on a [vehicle omitted] which she believes he sold for $7,250.00, an old [vehicle omitted] worth $2,000.00 and a ride on mower worth $1,500.00.
In her Outline of Case document, in addition to the items above, the mother lists the parties’ joint assets to include the father’s [sport omitted] equipment and new [sport equipment omitted] at a value of $6,000.00, funds withdrawn by the father at separation of $1,000.00, household items at a value of $21,000.00 the [omitted] motorcycle at a value of $11,500.00.
Further in her trial affidavit the mother deposes there is a Commonwealth Bank Visa card debt of $7,500.00 that was incurred during the relationship and a HSBC credit card debt used to purchase an air conditioner for Property M which had an amount of $2,500.00 outstanding at separation and now has $1,800.00 outstanding. She claimed at final hearing the amount owing at separation on this debt was $2,898.00. The father did not dispute this amount or that it had been used to buy an air conditioner for Property M.
In the father’s affidavit filed 20 July 2010 (the father did not file any further affidavits in this matter), he deposes that the [omitted] motor vehicle he retained at separation was subject to a $25,000.00 loan. He deposes he sold that vehicle for an amount that satisfied that loan, then bought a cheaper car with a further loan.
The father deposes that after separation the mother removed the wired spa from Property M:
“substantially diminishing the value of the property.”
The father further deposes that the mother retained the 1998 [omitted] sedan which he believes had a value of $19,000.00. This is the vehicle the mother sold to Mr V for $7,000.00, the proceeds of which were used by her to pay her legal costs.
The father gave evidence he wished to retain a boat and boat trailer he said he purchased from the mother’s father. He valued these items at $5,000.00. Whilst it was put to him the mother would give evidence this boat was owned by her father, no such evidence was given by the mother.
At final hearing neither party was cross-examined as to any of these matters in any depth, or at all. Further, the court was provided with no valuations whatsoever in relation to the various motor vehicles or chattels referred to in the preceding paragraphs.

The Issues

Within the constraints of the limited evidence provided to the court in relation to property matters as outlined herein, the issues that I have identified in respect to this matter are as follows:
a)What is the asset pool given the absence of any independent qualified evidence before the court?
b)Who should bear responsibility for the arrears of the mortgage:
i)between April and 26 July 2010; and
ii)post 26 July 2010?
c)Who should bear responsibility for the arrears of Council rates:
i)for 2009/2010; and
ii)for 2010/2011?
d)What should be the adjustment as between the parties for contributions?
e)What should be the adjustment as between the parties in the mother’s favour arising from section 90SF(3) factors?
f)Should there be a superannuation splitting order made in respect to the parties’ respective superannuation entitlements?

The legislation

Part VIIIAB of the Family Law Act1975 (“the Act”) sets out the Court’s powers when dealing with financial matters relating to de facto relationships.
Section 90SM of the Act defines the Court’s powers in determining applications for property settlement between de facto couples.

Sub-section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The matters to be taken into account under section 90SF(3) of the Act are as follows:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.

The four-step approach

In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters. Whilst this decision related to a couple who had been married, I am satisfied that the approach is equally applicable to parties who were in a de facto relationship. The four-step approach was described by the Full Court in the following terms (for the sake of clarity, where ss.79(4)(a), (b) and (c) are referred to, the relevant sections in this matter are ss.90SM(4)(a), (b) and (c), where ss.79(4)(d), (e), (f) and (g) are referred to, the relevant sections in this matter are ss.90SM(4)(d), (e), (f) and (g) and where s.75(2) is referred to, the relevant section in this matter is s.90SF(3)):
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….

Assets and liabilities

As noted previously in this judgment, the evidence before the court as to the parties’ asset pool was, at best, scant.
Given the lack of independent valuation evidence in respect to the alleged chattels and motor vehicles retained by each of the parties, I have determined it is not appropriate that they be included in the asset pool, save for those assets and debts acknowledged by both parties.
Accordingly, I have determined the asset pool as follows:

Property M
Less Mortgage
E$300,000.00

E<$238,274.00>

E$61,726.00

Net proceeds of sale of Property H $26,890.00

Proceeds of sale of [omitted] motorcycle retained by father $7,250.00

Proceeds of sale of 1998 [omitted] Sedan retained by mother $7,000.00

Boat and boat trailer $5,000.00

Total E$107,866.00
Less liabilities:

HSBC credit card <$2,898.00>

Arrears of mortgage on Property M between April 2010 to 25 July 2010 <$3,482.00>

Arrears of mortgage on Property M between 26 July 2010 to 4 August 2011 <$3,873.00>

Arrears of mortgage on Property M between 4 August 2011 to settlement of sale NK

Arrears of rates on Property M between
1 July 2009 to 25 July 2010 NK

Arrears of rates on Property M between
26 July 2010 to settlement of sale NK

Total NK
Superannuation:

Father’s Superannuation E$13,000.00

Mother’s Superannuation $78,300.00

Total E$91,300.00

Who should pay for arrears of mortgage and Council rates on Property M?

Arrears of mortgage April 2010 to July 2010

These arrears were incurred after the mother vacated Property M in April 2010. Whilst there were orders in place for the mother to have sole use and occupation of this property, it was known to the father that the mother and children had left the property. Further the father, it would appear, had access to and utilised the property.
By agreement, those arrears were paid from the joint funds held in trust on behalf of the parties from the sale of their Property H property.
Given the circumstances surrounding the period when these arrears were incurred, I am satisfied that the payment of the arrears from joint funds was appropriate and no adjustment will be made in respect to those arrears.

Arrears of mortgage post July 2010

Orders were made on 26 July 2010 in the following terms:
“The father have sole use and occupation of the real property situate at and known as Property M, (“the real property”) and from the date of this Order be responsible for the payment of all Mortgage, rates, taxes and other apportionable outgoings as they fall due.”
From that date, if not earlier, the father had the sole benefit of this property and he lived there until mid 2011 when he unilaterally decided to move to [W]. Such move was made without the knowledge of the mother and it was incumbent upon the father to make appropriate arrangements to continue to service the mortgage until such time as that property was sold or otherwise managed, including renting the property to offset the mortgage.
His failure to do so is such that I am satisfied that he should be responsible for the payment of any arrears during this period, and accordingly such arrears will be payable from his share of the division of the realisable assets between the parties.

Arrears of Council rates 2009/2010

Orders were made by me on 23 November 2010 in the following terms:
6.The arrears of City of [omitted] payable on the former matrimonial home at Property M (“Property M”) for the rating period 2009/2010 shall be paid from the funds currently held on trust by Cohen Kirby & Iser on the parties’ behalf.
7.The ultimate liability for the payment of the rates arrears referred to in order 6 herein shall be determined at the final hearing of this matter.
Despite the order made by me on 23 November 2010, the court was advised at the final hearing that the arrears of rates for this period had not been made. The reason for this non-payment is most unclear. There was some indication by Counsel for the mother that the solicitors in whose trust fund the monies rest had not released the funds for the payment of the rates as they had not received authorisation to do so from the father. This is somewhat bemusing given the very clear terms of the order made by me.
It was argued on behalf of the mother that given the father’s lack of cooperation in this regard, any further penalties incurred should be borne by the father, if not the whole of the arrears of rates for this period.
I do not accept the argument put on behalf of the mother. The mother was legally represented, the father was not. The mother’s solicitors were more than capable of explaining to the solicitors in whose trust fund the monies were held that there was an order of the court that authorised the release of the funds and appropriate action could have been taken by them to ensure that those monies were released, the arrears paid and any penalties that the parties might have incurred avoided.
It is also clear that the rates period in question, at least in part, relates to the period where the parties were still cohabiting. It is also clear that this period involves the time when neither party seems to have been fully occupying the matrimonial home.
Given these circumstances, I am satisfied that the arrears of rates for 2009/2010, and any penalties incurred arising from their non-payment, should be met from the joint funds of the parties before any distribution takes place.

Arrears of Council rates post July 2010

As set out earlier in this judgment, orders were made by this court which very clearly made the payment of the rates for the Property M property post 26 July 2010 the responsibility of the father.
It was the father’s evidence that he had not paid the rates on the basis that the Council told him that any such payment would be credited against the pre-existing arrears and not the current rates period. That is not an adequate excuse for his failure to comply with the orders of this court.
I am therefore satisfied that any arrears of rates payable from

26 July 2010 should be paid by the father and those arrears should be paid from any monies received by him as a result of the division of property between the parties.

Contributions

No submissions were made by either party in relation to what, if any, adjustment should be made in the respective parties favour in the context of this factor.
It was the mother’s evidence that during the course of the relationship, she was the primary income earner for the family as well as being the principal homemaker and the person who had the primary care of the children.
It was the mother’s evidence that the father had many periods of unemployment during the relationship and that accordingly it was her income that was the major contributor to the family’s finances.
It was also the mother’s evidence that post-separation she has been the primary carer for the parties’ three children as well as being completely responsible for their financial support in circumstances where the father has paid almost no child support.
In relation to child support, it was the mother’s evidence that the father was assessed to pay child support at a very low rate of approximately $25.00 per week. The father objected to that assessment and the mother, not wishing to be involved in lengthy objection processes with the Child Support Agency, successfully made application to the Agency to be excused from having to pursue child support from the father. Accordingly the father has not made any child support payments over and above approximately $75.00 since separation.
Accordingly, it was the mother’s argument that she has made the greater contributions to the parties’ assets, both as income earner and as homemaker and parent.
The father made no submissions in relation to this issue, nor did he place any evidence before the court as to what contributions he claims he has made to the parties’ financial situation.
It should be noted that the father disputed that the mother was the primary carer of the children during cohabitation and that his limited involvement in the children’s lives post-separation has been as a result of the mother’s own actions and as dictated by the orders of this court.
On balance, I am satisfied the mother made a greater contribution towards the parties’ assets than that of the father and an adjustment of five per cent should be allowed in the mother’s favour.

Section 90SF(3) factors

The father is aged 38 years and is in good health. At the time of the final hearing he was unemployed having recently been retrenched from a position as a [omitted]. He has a history of employment during the course of the relationship. The father gave no evidence as to his earning capacity, save and except a sworn financial statement filed with the court on 26 July 2010. In that document the father was employed by his brother and deposed to an income of $700.00 per week.
The mother is aged 39 years and is similarly in good health. She is currently engaged in home duties following the birth of her youngest son. She currently has the responsibility for the care of her five children. She is a trained [occupation omitted] and is currently on maternity leave. Her earning capacity when employed full-time as a [occupation omitted] is approximately $70,000.00 to $90,000.00 per annum.
It was the mother’s evidence that at this time she is not intending to return to employment as she wishes to remain at home looking after the children.
The mother has re-married. Her husband Mr V is a self-employed [omitted]. It was the mother’s evidence that Mr V earns approximately $50,000.00 to $60,000.00 per annum.
It was submitted on behalf of the mother that given her responsibility as the primary carer for the three children, given that she is wholly responsible for their financial support and that she wishes to continue in her current role of home duties in order to properly care for her five children, there should be a considerable adjustment in her favour pursuant to section 90SF(3) factors.
The father made no submissions as to this specific issue, but his proposal that there be a division of the jointly owned assets between the parties of 60:40 in favour of the mother indicated an agreement by him that there needed to be an adjustment in the mother’s favour.
I am satisfied there should be an adjustment in the mother’s favour of 20 per cent pursuant to section 90SF(3) factors, given her primary care of the children absent any financial assistance from the father now and into the future.

Superannuation

It was submitted on behalf of the mother that given the very small asset pool, her responsibilities in relation to the care of the parties’ three children, that she was the primary income earner during the relationship and that she will receive no financial support from the father in relation to the children into the future that there should be no adjustment made in relation to superannuation, despite the imbalance of the parties’ respective superannuation entitlements.
The father argued that there should be an adjustment in relation to superannuation, such adjustment reflecting the same percentage division as the overall property division between them.

Just and equitable

It was submitted on behalf of the father that an appropriate division of the parties’ assets, as noted, should be 60:40 in the mother’s favour. The father made no further submissions to the court as to the basis upon which such a division would be just and equitable.
It was submitted on behalf of the mother that a just and equitable outcome of this matter is that she receive 70 per cent of the parties’ realisable assets and otherwise retain the totality of her superannuation entitlements.
I am satisfied that a just and equitable division of all assets between these parties is a 75:25 division in the mother’s favour. Given that she has the primary care of the parties’ three children, given that she receives no child support from the father in relation to their care and given the small size of that asset pool, I believe such a division is appropriate.
It is my estimation that the parties’ realisable assets will be approximately $100,000.00. If the mother retains 65 per cent of the parties’ realisable assets and the whole of her superannuation, this results in a 75:25 split of the parties’ total assets in the mother’s favour.
Accordingly there will be no orders made for a superannuation splitting order.
Orders will be made that the parties’ realisable assets be split such that the mother receives 65 per cent of same and the father receives 35 per cent of same.
When determining the division of assets between the parties, the father shall retain the proceeds of sale of the [omitted] motorcycle and the boat and trailer. The mother shall retain the proceeds of sale of the 1998 [omitted] Sedan.
Further, the arrears of mortgage and rates payable on Property M from 26 July 2010 shall be payable from the monies received by the father from these orders.

I certify that the preceding three hundred and one (301) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 21 November 2011

Property M Less Mortgage	E$300,000.00 E<$238,274.00> E$61,726.00
Net proceeds of sale of Property H	$26,890.00
Proceeds of sale of [omitted] motorcycle retained by father	$7,250.00
Proceeds of sale of 1998 [omitted] Sedan retained by mother	$7,000.00
Boat and boat trailer	$5,000.00
Total	E$107,866.00

HSBC credit card	<$2,898.00>
Arrears of mortgage on Property M between April 2010 to 25 July 2010	<$3,482.00>
Arrears of mortgage on Property M between 26 July 2010 to 4 August 2011	<$3,873.00>
Arrears of mortgage on Property M between 4 August 2011 to settlement of sale	NK
Arrears of rates on Property M between 1 July 2009 to 25 July 2010	NK
Arrears of rates on Property M between 26 July 2010 to settlement of sale	NK
Total	NK

Father’s Superannuation	E$13,000.00
Mother’s Superannuation	$78,300.00
Total	E$91,300.00