Cloake and Cloake

[2012] FMCAfam 1113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLOAKE & CLOAKE [2012] FMCAfam 1113

FAMILY LAW – Parenting – wishes of children – attitude of the parents to each other’s involvement with children – issue of parents’ communication with each other – alleged family violence.

FAMILY LAW – Property – 23-year marriage – consideration of parties’ disclosure – consideration of add backs to the asset pool – future capacity of parties to be engaged in paid employment – consideration of orders for spousal maintenance.

Family Law Act 1975, ss.60CA, 60CC, 65DAA, 75(2), 79
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Goode v Goode (2006) 36 Fam LR 422
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Applicant: MR CLOAKE

Respondent: MS CLOAKE

File Number: CAC 180 of 2011

Judgment of: Whelan FM

Hearing dates: 31 May, 1 June & 15 August 2012

Date of Last Submission: 15 August 2012

Delivered at: Melbourne

Delivered on: 18 October 2012

REPRESENTATION

Counsel for the Applicant: Mr G Howard

Solicitors for the Applicant: Phelps Reid

Counsel for the Respondent: Ms A Tonkin

Solicitors for the Respondent: Strong Law Pty Ltd

ORDERS

Parenting

1. That the Wife Ms Cloake born [in] 1966 (“the Wife”) and the Husband Mr Cloake born [in] 1965 (“the Husband”) (collectively “the parents”) have equal shared parental responsibility for the children of the marriage [W] and [X] both born [in] 1998, [Y] born [in] 2001 and [Z] born [in] 2005 (“the children”).

2. That the children live with the Wife and the Husband on a week about basis with the changeovers occurring from after school on Friday with the children to live with the Husband for the week commencing Friday 26 October 2012 and each alternative week thereafter.

3. That changeovers are to take place at the children’s school, or in the event that the children are not at school at McDonalds, [G].

4. That for the ACT school term holidays the children shall spend time with the parents for half of the term holidays in accordance with Order 2 above.

5. That over the Christmas period the children will spend time with the parents as follows:

   (a)From 5.00pm on 24 December until 9.00am on 26 December with the Husband in even numbered years; and

   (b)From 9.00am on 26 December until 5.00pm on 27 December with the Wife in even numbered years.

   (c)From 5.00pm on 24 December until 9.00am on 26 December with the Wife in odd numbered years; and

   (d)From 9.00am on 26 December until 5.00pm on 27 December with the Husband in odd numbered years.

6. That for the Christmas school holidays the children will spend time with the parents as follows:

   (a)For the first half with the Husband in even numbered years; and

   (b)For the second half with the Wife in even numbered years.

   (c)For the first half with the Wife in odd numbered years; and

   (d)For the second half with the Husband in odd numbered years.

7. That on Father’s Day the children shall spend time with the Husband from 9.00am until 5.00pm if the children are not already spending time with the Husband.

8. That on Mother’s Day the children shall spend time with the Wife from 9.00am until 5.00pm if the children are not already spending time with the Wife.

9. That the parties communicate in the following way in relation to the children:

   (a)By email, communication book or otherwise in writing for non-urgent issues;

   (b)In an urgent situation, by text message; and

   (c)In an emergency, by text message and/or telephone call.

10. That both parents be noted as enrolling parents and emergency contacts at the children’s school, after-care and extracurricular activities.

11. That either parent be at liberty to attend any significant (e.g. end of year, semester or term) school events, and any extracurricular or sporting events.

12. That the parents notify each other within 24 hours of any change of address, email or telephone number (including mobile phone).

13. Each parent must advise the other of:

    (a)Any significant illness, accident or injury suffered by a child;

    (b)Any significant medical or dental treatment provided to a child;

    (c)Any medication a child is to take while a child is in the other’s care including the dosage;

    and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.

Property

1. That the Husband, forthwith, transfer to the Wife all of his right, title and interest in the real property known as and situate at Property N, [N] in the Australian Capital Territory (“the [N] property”) at his expense.

2. That the Wife is to become solely responsible for any mortgage payments that are attached to the [N] property.

3. That the Wife use her best endeavours to refinance the mortgage on the [N] property into her sole name within 90 days of the date of these orders.

4. That in the event the Wife is unable to refinance the mortgage on the [N] property into her sole name the property be forthwith sold altogether out of Court and the proceeds of the sale be divided as follows:

   (a)To pay all costs, commissions and expenses of the sale;

   (b)To discharge the mortgage and any other encumbrance affecting the real property; and

   (c)The Wife to retain the balance.

5. That the Wife retain the household contents of the [N] property.

6. That the Wife retain the Grand Voyager motor vehicle.

7. That the Wife be paid the sum of $25,000.00 (being 50% of the return to equity).

8. The Wife retain the MAH shares and her Telstra shares.

9. That upon sale of the Wesfarmers shares, the Wife is to receive 57% of the net proceeds.

10. That the Husband retain the property known as and situate at Property D, [D] in the State of Queensland (“the [D] property”) and indemnify the Wife in respect of any mortgage over that property.

11. That the Husband is to become solely responsible for and indemnify the Wife in respect of the Viridian line of credit.

12. That other than specified in Order 21, all other shares either in the Husband’s name or joint names to be the property of the Husband.

13. That the Husband retain the 2006 Falcon motor vehicle.

14. That the Husband retain the Go Kart trailer.

15. That the Husband retain his savings and the balance of the return to equity.

16. That upon the Husband providing procedural fairness to the Trustee of the [M] Pension Fund, a splitting Order issue in favour of the Husband.

17. That paragraphs 30 to 36 (inclusive) of these Orders are binding on the Trustee of the [M] Pension Fund (“the Fund'').

18. That the base amount of $88,547.00.00 be allocated to the Husband out of the Wife’s interest in the Fund.

19. That pursuant to s.90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the Wife’s interest in the Fund, the Husband shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

20. That Order 31 has effect from the operative time.

21. That the operative time for the purpose of paragraphs 31 and 32 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund. The date of service to be taken to be after procedural fairness has been afforded to the Trustee of the Fund.

22. That until such time as the Superannuation split to the Husband pursuant to these Orders can be rolled over into a separate account to the Husband:

    (a)The Wife shall provide to the Husband no less than twenty-eight (28) days notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the Fund;

    (b)The Wife shall direct and authorise the Trustee of the Fund to communicate with the Husband and/or any person authorised by the Husband in writing:

    (i)To answer any reasonable inquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the Fund; and

    (ii)To provide to the Husband and/or his authorised representative a copy of any notice of any application or request by the Wife which seeks release of entitlements in the Fund in so far as that release may effect the entitlement in the Fund pursuant to these Orders; and

    (c)The Wife by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these Orders.

23. That in the event that the Superannuation split to the Husband pursuant to these Orders can be rolled over into a separate account to the Husband each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

24. That the amount of $9,000.00 per annum as indexed from time to time be allocated to the Wife from the Husband’s [D] pension.

25. That 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 other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels being deemed to be in the possession of the Applicant/Respondent).

    (b)Monies standing to the credit of the parties in any bank account are to become the property of the named account holder.

    (c)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.

    (d)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.

    (e)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.

    (f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

    (g)Each party is to 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.

26. That each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106(A) of the Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.

Spousal maintenance

1. That the Husband pay spousal maintenance in the sum of $300.00 per week for a period of 26 weeks.

2. That all extant Applications are otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 180 of 2011

MR CLOAKE

Applicant

And

MS CLOAKE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Husband Mr Cloake (“the Husband”) in which he seeks certain orders regarding parenting and property. The application seeks that the children live with each of the parents on a week about basis. In final oral submissions, the Husband submitted that if the Court did not favour an equal time arrangement, he sought that the children live predominantly with him.

2. With respect to property matters, the Husband sought that the marital home at Property N, [N] (“the [N] property”) be transferred to the Wife, Ms Cloake (“the Wife”) subject to the existing mortgage, that he retains an investment property in Queensland subject to the mortgage on it, that all jointly owned shares be transferred to him and there be certain splitting orders with respect to his [D] Retirement and Benefit Scheme (“[D]”) pension and the Wife’s military superannuation.

3. The Wife sought orders that the children live predominantly with her and spend three nights, each alternative weekend and one mid-week night in the other week, with the Husband. The Wife also sought that the [N] property be transferred to her on an unencumbered basis and that the Husband pay spousal maintenance of $500.00 per week until the youngest child commences high school.

Background

1. The Husband was born [in] 1965 and is now 46 years of age. The Wife was born [in] 1966 and is now 45 years of age. They commenced co-habitation in January 1986 and married in 1987. At the time of the marriage, the Husband was [occupation omitted]. In 1992, the Wife also [occupation omitted].

2. The first children of the marriage [W] (“[W]”) and [X] (“[X]”) were both born [in] 1998 and the third child [Y] (“[Y]”) [in] 2001. The Husband and Wife lived in various locations consistent with their [occupation omitted transfers].

3. There was very scant information before the Court about the history of the parties’ acquisition of property assets. It would appear that they had very few assets at the time of the marriage but by 2004 had managed to build up a property portfolio most of which was sold after 2004. They also, about this time, began investing in shares.

4. In 2005, the fourth child [Z] (“[Z]”) was born. In October 2005, the parties established a [omitted] business called [omitted]. This was operated by them for about two years.

5. In 2007, the Husband commenced working as a [omitted] for [omitted]. He also set up the business [T] (“[T]”). In January 2008, the Wife left [occupation omitted] and commenced working with [T] on a part-time basis. The parties also purchased the business [P] (“[P]”) for which the Wife and her sister worked. In July 2010, the company [T] registered ‘[I]’ (“[I]”) as a business name.

6. In December 2010, the Husband commenced working full-time as a [omitted] with [T].

7. On 7 December 2010, after an incident which resulted in the Husband being charged with common assault, the parties separated.

The issues

1. In relation to parenting, the issues concern:

   ·The wishes of the children and any factors which might be influencing those wishes;

   ·Family violence;

   ·The problems of the parents in communicating with each other; and

   ·The attitude of the parents to each other’s involvement in the children’s lives.

2. In relation to property and spousal maintenance the issues are:

   ·Whether the Husband has made full disclosure;

   ·Should there be any add backs to the pool; and

   ·Section 75(2) factors, including the Wife’s capacity to work.

The parties

The Husband

1. The Husband is currently the sole director and shareholder in [T]. He recently sold the business [P] to the Wife’s sister. [T] also operates a [omitted] business under the trading name of [I]. The Husband derives income from these ventures by way of wages, and also director’s fees and ‘return to equity’. He also obtains rent from a property in Queensland.

2. Currently the Husband is living in rental accommodation in Canberra. The property has three bedrooms and the children currently share when they stay with him. He intends to buy a house in Canberra in the future.

3. As a result of the incident on 7 December 2010, the Husband was charged with common assault. The charge was found proven and he was put on a good behaviour bond without a conviction being recorded. He was at the time of the hearing also subject to a Domestic Violence Order (“DVO”) taken out by the Wife. He consented, without admission, to the final order.

4. There was no evidence before the Court of any incident of domestic violence other than the events of 7 December 2010.

5. The Husband described the parties’ lifestyle during much of the marriage as a normal family every day lifestyle similar to most [occupation omitted] families. Their employment continued through several [transfers]. He stated that he was equally involved with the children during most of their lives. In the last six months, when the Wife was working part-time, she took the children to most of their sporting engagements but prior to that he both took them and picked them up. In the last six months he just picked them up. He also referred to his participation in cooking meals and other activities.

6. During the last two years of the marriage, the Husband claimed that the Wife became addicted to an Internet game and also commenced on-line relationships with several men. He spoke to her about the impact of this behaviour on their marriage. In January 2010, he wrote her a very long letter about their situation.[1] He agreed that he had put a logging device on the computer, without her knowledge, and had found information about her activities. At that stage the Husband says the Wife wished to continue the relationship and he felt that their lives improved after that.

   [1] Exhibit A4 – Correspondence of January 2010 from Mr Cloake to Ms Cloake.

7. In December 2010, the Husband found text messages on the Wife’s phone to another man which lead to the incident where he ejected her from the house. According to her statement to the police, the Wife made two attempts to re-enter the house and was prevented physically from doing so by the Husband. The police were called and the Husband was later charged.

8. The Husband denied controlling the Wife during the marriage. In particular, he denied pressuring her to leave [occupation omitted] and stated that all financial decisions were taken jointly. He agreed that he did ask his son [X] to load an ‘agent’ on to a computer in the marital home after the separation. The Husband says that the computer was not the Wife’s personal computer – she used a lap top – but belonged to the company, [T]. He stated he needed to access the computer to obtain financial documents to complete tax statements. He stated that in the end he never remotely accessed the computer and was unable to say if the ‘team viewer’ had been installed.

9. The Husband described the Wife as dishonest. He did so by reference to her extramarital relationships in the last few years of the relationship and her secret smoking. He denied not liking her saying, “I have loved her since I was 17 years old . . . I have no malice against her”.[2]

   [2] Transcript of proceedings, 31 May 2012, page 32 at lines 15-16.

10. The Husband did not believe that the Wife’s dishonesty was reflected in her mothering abilities and stated that she loved their children and would do her best to look after them – she would look after them well.

11. The Husband stated that he believed the Wife was exaggerating her fear of him and described her being quite aggressive on occasions. He stated, “I was married to her for 24 years and I know that she has no fear of me whatsoever”.[3]

    [3] Transcript of proceedings, 31 May 2012, page 33 at lines 22-23.

12. The Husband stated that he had not discussed the parenting arrangements with the children for many, many months and did not know their current wishes. He was aware of what was in the report of the Family Report writer, Ms C (“Ms C”). He had not brought any pressure to bear on [X] since that Report. He believed that [Y] wanted to spend more time with him but may have been outvoted by his older brother and sister. He believed that [Z] wanted to spend equal time with both parents.

13. The Husband stated that he did not believe that the current arrangements were in the best interests of the children. He expressed the view that in the period since separation, the Wife had manipulated the children and had done everything to prevent him from having a great relationship with his children. He believed that she chose to have a problem communicating with him.

1. It was common ground that the parties have not spoken to each other, apart from in a meeting with the first Family Report Writer, Ms M (“Ms M”) in March 2011, since the separation.

2. A second Family Report was prepared in February 2012 by Ms C, who is a clinical psychologist. She interviewed the Husband on 20 January 2012. It is not clear from the report how long the interview took. The Report Writer described Mr Cloake as having “some problems with anger management”[4] and having a tendency “to want to persuade others to adopt his view point, without acknowledging alternative view points”.[5] She also noted that, “He could usefully attend to his interpersonal style and be more sensitive to not pressing his children”.[6]

   [4] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 28, paragraph 11.11.

   [5] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 28, paragraph 11.11.

   [6] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 28, paragraph 11.11.

3. The Husband’s evidence suggested that he had taken heed of the latter suggestion.

4. The Husband gave oral evidence in the proceedings which extended over two days. He gave his evidence in a straightforward manner and was neither evasive nor argumentative. While he did not exhibit a great capacity for self-criticism and did have a tendency to justify his actions, I considered him to be truthful in his answers. He showed a knowledge of his children consistent with his claims about the extent of his involvement in their lives.

The Wife

1. The Wife is currently living with the children in the former marital home. She is in receipt of social security benefits and has recently commenced working for a few hours per week with [omitted].

2. The Wife maintains in her affidavit and oral evidence that throughout the marriage the Husband had controlled her life, that he had initially opposed her joining [occupation omitted] and later pressured her into leaving. She further claimed that he used the children as a vehicle to intimidate her and kept their lives in a “constant state of chaos”[7] She also claimed that the Husband controlled their finances and by the end of the marriage controlled “every aspect”[8] of her life.

   [7] Affidavit of Ms Cloake dated 12 April 2011 at paragraph 15.

   [8] Affidavit of Ms Cloake dated 12 April 2011 at paragraph 21.

3. None of the Wife’s material addresses the issues raised by the Husband concerning the strains on the marriage in the period prior to separation. In cross-examination, the Wife denied being withdrawn from the family, admitted to playing the game [omitted] daily but not for a significant number of hours and admitted that some of the people she talked to on-line were men.

4. The Wife agreed that the Husband was an involved father but would not agree that he was committed. She said he was a loving father “at times”[9] but there were times when he was not. She had not given any thought to how she would communicate with him after the Court proceedings were over as the only communication between them currently was through lawyers. She stated that communicating ‘one on one’ was totally out of the question. She claimed that the Husband saw the children as property to be divided fifty-fifty.

   [9] Transcript of proceedings, 1 June 2012, page 196 at line 16.

5. The Wife initially denied that she had talked to the children about shared care “at any time”.[10] She eventually agreed that they had discussed it. After being pressed, she admitted that she had told the children that she did not believe that:

   having 50 percent of their lives in one place, and 50 per cent of their lives, that that would be the way for them to grow up . . .  Never having a home, basically . . . I believe that it is certainly not in the best interests of my children to split their lives.[11]

   [10] Transcript of proceedings, 1 June 2012, page 145 at line 44.

   [11] Transcript of proceedings, 1 June 2012, page 148 at lines 22-32.

6. Ms M, who did the first Family Conference Report based on interviews with the parents in March 2011, had the opportunity to observe the parents together. She described the Wife as anxious but not fearful. She stated that the Wife “was quite forceful in the way she presented her statements and her arguments . . . she pursued her argument in very logical fashion”.[12] At one point she stated that the Wife became particularly aggressive and leant over the table towards the Husband pointing her finger at him.

   [12] Transcript of proceedings, 15 August 2012, page 6 at lines 34-35; page 7 at line 1.

7. I will return to the conflicting evidence between the Wife and Ms M about the events of 23 March.

8. Ms C who conducted the second Family Report in January 2012, described the Wife as “tearful” and “highly anxious”,[13] speaking “shakily”[14] and “almost incoherent with grief”.[15] She considered a diagnosis of Adjustment Disorder might be applicable. The Wife described the Husband to Ms C as a controlling violent man of whom she was terrified. She presented to Ms C “in a highly aroused, anxious state to the extent that she could hardly speak coherently at times”.[16] According to Ms C, she did not “appear to be malingering”.[17] She considered the Wife’s fear to be very evident to her and referred to the diagnosis of the Wife’s psychologist of Post Traumatic Stress Disorder, although she preferred the diagnosis of an Adjustment Disorder.

   [13] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 11, paragraph 6.1

   [14] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 12, paragraph 6.5.

   [15] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 15, paragraph 6.15.

   [16] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 25, paragraph 11.3.

   [17] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at page 25, paragraph 11.3.

9. Ms C seems to be referring in relation to the Wife’s psychologist, to a letter dated 17 August 2011 to the Wife’s solicitor[18] from a Ms W (B. Psych (Hons)) (“Ms W”) who says that she met the Wife that day. She then goes on to say:

   I understand Ms Cloake experienced a physical assault by her husband Mr Cloake on 7 December, 2010. This had followed a long history of control, threats of violence and psychological abuse within the marriage. During the assault on 7 December, Ms Cloake reports fearing for her life. She remains very frightened for her safety.[19]

   [18] Affidavit of Ms Cloake dated 17 August 2011 at Attachment A.

   [19] Affidavit of Ms Cloake dated 17 August 2011 at Attachment A.

10. Ms W goes on to make an initial assessment of “severe symptoms of post traumatic stress and depression”.[20] She was not called to give evidence. This is the total extent of the medical evidence before the Court apart from the test results appended to the report of Ms C. There was no psychiatric report.

    [20].Affidavit of Ms Cloake dated 17 August 2011 at Attachment A.

The Wife’s demeanour and her evidence

1. The Wife’s presentation in the witness box can only be described as most disturbing. She sat with her body turned away from the Court, with both her arms wrapped around herself and a pained expression on her face. When her eyes were not closed, she addressed her evidence to the desktop in front of her. Her delivery was however, coherent, although her answers to some questions were evasive. At one stage when she appeared to be especially distressed she was asked if she wanted a break but responded, “Keep going”.[21]

   [21] Transcript of proceedings, 1 June 2012, page 188 at line 26.

2. The Wife’s credibility was particularly at issue in this matter because of the conflicting evidence given by her and Ms M concerning certain events which lead to a complaint being made by the Wife.

3. Before turning to these events however it is necessary to look at the Wife’s behaviour in some other respects.

The 20 July 2011 Orders

1. On 20 July 2011, Federal Magistrate Neville delivered Judgment and issued Interim Parenting Orders in this matter. The Orders state:

   3.  For the next three months the children are to reside with the Mother for nine nights per fortnight and with the Father for five nights per fortnight.

   4.  Thereafter, the children live with the Mother and the Father on a week about shared care basis.[22]

   [22] Orders of Federal Magistrate Neville dated 20 July 2011.

2. The Wife insisted in her evidence that the Order “increased the time upon agreement between the two solicitors”.[23] She further insisted that it did not happen (i.e. the five nights with the Husband) because “his solicitor never contacted us”.[24] An Appeal was lodged against the Orders on 17 August 2011 and an application made for a stay order. The latter application had not been heard at the time the Appeal was dealt with in October 2011.

   [23] Transcript of proceedings 1 June 2012 page 150 at line 27.

   [24] Transcript of proceedings 1 June 2012 page 151 at line 23.

3. The Wife agreed that at no time was the Order made by Federal Magistrate Neville for five nights complied with by her. She denied withholding the children from school on 5 August 2011 when the Husband was due to collect them. She agreed that the children were not at school and that only [Z] was ill. She further agreed that before she would allow the children to spend time with the Husband that weekend, she insisted on him giving an undertaking to return them on the Sunday consistent with the arrangements which has existed prior to the 20 July 2011 Orders.

4. The Wife insisted that there was never any ‘consent’ to the 20 July 2011 Orders.[25] Due to the failure by the Wife to comply, the Husband’s solicitors wrote to Federal Magistrate Neville on 12 August 2011 seeking clarification on when the Orders should commence.

   [25] Transcript of proceedings, 1 June 2012, page 154 at line 24.

5. In response, correspondence from his Honour’s Chambers was sent on 15 August 2011 stating:

   His Honour indicates that the increased time should commence from Friday 19 August 2011. Unless absolutely necessary, no Order will be made in Chambers reflecting this.[26]

   [26] Exhibit R19, Email from the Chambers of Neville FM dated 15 August 2011.

6. On 19 August 2011, the Wife’s solicitors wrote to the Husband’s solicitors proposing that in light of an Appeal having been lodged, the current arrangements continue and that the commencement of the extended time not commence until the determination of the stay application.[27] This proposal was rejected.[28]

   [27] Exhibit A16, Email from Ms Cloake’s lawyer to Mr Cloake’s lawyer dated 19 August 2011.

   [28] Exhibit A17, Email from solicitor for Mr Cloake dated 19 August 2011.

7. The children did not spend five days with the Husband from 19 August 2011. On 29 August 2011, the Wife’s solicitors wrote what I consider to be an extraordinary letter to the Husband’s solicitors. It reads in part:

   We advise that our client does not consent to your client spending time with the children from Friday afternoon until the commencement of school on Wednesday. We refer to our email correspondence to you on 19 August 2011 on this issue. 

   Please advise whether your client will undertake to return the children on Sunday as usual. If he is not prepared to give that undertaking our client will not be in a position to provide the children to him on Friday afternoon.[29]

   [29] Exhibit A18, Letter from lawyer for Ms Cloake to lawyer for Mr Cloake dated 29 August 2011.

8. The Wife, in her oral evidence, suggested that the children chose not to go on 19 August 2011. I do not accept that evidence. It was put to the Wife that [W] had sent the Husband an email on 22 August 2011 which said:

   We didn’t go to school on Friday, because Mum says the judge hasn’t said anything about the five day thing, but you said that he did. This is really confusing.[30]

   [30] Transcript of proceedings, 1 June 2012, page 166 at lines 16-18.

9. The Wife agreed in oral evidence that this information had come from her. This episode does not suggest to me a woman who is intimidated by her husband, but rather one who is determined to get her own way.

10. This is not the only evidence of the Wife interpreting things in a way which is inconsistent with the evidence and claiming that she had been told certain things or that she had not said certain things.

The 18 June 2011 incidents

1. There was considerable evidence about incidents which occurred on 18 June 2011 involving the children’s sporting events.

2. On 8 March 2011, a DVO was issued which prevented the Husband from being within 200 metres of the Wife with certain exceptions, one of which was “when attending the parties’ children’s sporting events and schooling events where the distance will be reduced to 20 metres”.[31]

   [31] Affidavit of Ms Cloake dated 12 April 2011, Attachment “H44”.

3. The Wife gave evidence that she had been told that this did not apply to ‘training’ and had already considered calling the police on 21 March 2011 when [X] had told her that the Husband had suggested that he might attend [X]’s football training.

4. On 18 June 2011, the children [Z] and [X] were both playing soccer at different venues. The Wife’s evidence was that she dropped [X] at his venue and then went to [Z]’s soccer match. The Wife stated that the Husband “came close to where I was and I was fearful and intimidated by that and called the police”.[32] She later agreed in cross-examination that the Husband was watching the match and was about 50 metres away from her. She then stated that he may have been closer, but not closer than 20 metres, away from her.

   [32] Transcript of proceedings, 1 June 2012, page 133 at lines 17-18.

5. The police report[33] indicates that the police informed the Wife that in their opinion he was committing no offence.

   [33] Exhibit A5, Police report from incident of 18 June 2011.

6. The Husband later attended [X]’s soccer match. It was his evidence that he was there from the start of the match and at that time the Wife was not present. He had checked. [X] was injured just before three-quarter time.

7. The Husband’s evidence was that he walked over to see how his son was. He had not, at that time, seen that the Wife was there. He was about five metres from the huddle of parents and players when the Wife screamed at the top of her voice, “Get away!”. The first time it did not register. She repeated it straight away. He looked up and saw her, stepped back and then turned away and walked back to the other side of the oval and got in his car and left.

8. The Wife’s evidence was that she arrived at [X]’s match just after half-time. He was injured at the opposite end of the field to where she was standing. She “ran down the side of the football field, and I carried my son from the side of the football field back to the treatment area”[34]where she treating him with ice packs. She saw the Husband coming towards her and was frightened. He got within ten metres of her and when she realised that he was not going to stop, she was terrified and screamed, “Get away! Get away!”.[35]

   [34] Transcript of proceedings, 1 June 2012, page 133 at lines 32-33.

   [35] Transcript of proceedings, 1 June 2012, page 134 at line 11.

9. In later evidence, the Wife agreed that the Husband was at the match when she arrived. He was over on the other side of the field, a long distance from her. She stated that she carried [X] off the field (she later said she “carried [X] from one end of the field to the other”).[36] She denied that the Husband was approaching the huddle of players, stating that he was coming directly towards her. She watched him come from the other side of the field.

   [36] Transcript of proceedings, 1 June 2012, page 188 at line 4.

10. The Wife denied telling the police that the Husband had approached where their son was sitting being treated or that she was not sure that he knew she was there. She insisted that the police told her they gave him a warning.

11. The police report states:

    At [G] the comp (the Wife) stated that Mr Cloake (the Husband) had been standing on the other side of the field. Just before quarter time there (sic) son was injured kicking a goal. Comp stated that Mr Cloake has approached where their son was sitting being treated. The comp has seen Mr Cloake about 10m away and turned and yelled at him to get away . . .  The comp was not sure if Mr Cloake knew if she was at the location.

12. With respect to the interview with the Husband, the police report states:

    Cloake stated he had arrived at the [omitted] playing fields about 1020am on the day and had checked the area prior to going to watch his son play so that he didn’t approach Ms Cloake if she was present. Cloake stated that Ms Cloake had not been present and at half time he had gone down and spoken to his son and given him words of encouragement. Just before ¾ time [X] had been injured and when the buzzer went he walked down in the company of Mr W. Cloake stated he had not seen Ms Cloake arrive and as he walked to check on his son’s injury he head a voice Scream (sic) “Get Away”. As he was talking to Mr W he looked around and stopped and saw Ms Cloake. Cloake stated he immediately walked away as he realised he was to (sic) close. At no time did he realise that Ms Cloake was (sic) or make any attempt to breach the DVO on purpose. Cloake stated that as soon as he realised that he was breaching the order he walked directly away. Cloake stated he then left and went home to ensure that no further problems would occur.

    At this time Police believe that Mr Cloake did not intentionally breach the DVO and when he became aware he immediately took all reasonable steps to rectify the situation.[37]

    [37] Exhibit A5, Police report from incident of 18 June 2011.

13. The report concludes, “Due to the circumstances Police will not be proceeding any further with the matter. Ms Cloake to be advised”.[38]

    [38] Exhibit A5, Police report from incident of 18 June 2011.

14. I found the Wife’s oral evidence to be less plausible than that of the Husband in relation to these events and his evidence to be more consistent with the material in the police report, including the information provided by the Wife herself and the other witness interviewed (who described the Wife as “standing near but not close to the boys huddle” when the incident occurred).[39]

    [39] Exhibit A5, Police report from incident of 18 June 2011.

The Wife’s views about the children

1. The Wife also did not accept that the children made certain statements to Ms M in her interview with them, in particular, about their wishes. She did not go so far as to say that Ms M fabricated the information. She could not explain where Ms M got information which the children purportedly told her emanated from discussions with their mother.

2. The Wife also denied saying something to Ms C about why the children might have said that they really wanted to see their father, which Ms C reported her as saying.

3. The Wife did not accept that when the children spoke to Ms M they told her that they wanted equal time with both parents. She stated that she believed what the children told her. She accepted however that the children might say one thing to one person and then another to another.

4. When asked if the children were aware that she was upset about the Orders made on 20 July 2011, she responded that she did not know. They may have known that she was upset but not why.

5. From her own evidence about the discussion she had with the children and her mother after the interview with Ms M, it is unlikely that the children would not have been aware that she was upset about the recommendation of Ms M which formed the basis for the 20 July 2011 Orders.

6. The Wife was unable to admit that the Husband might want to spend more time with the children because he loved them.

The events of 23 March 2011

1. On 23 March 2011, a child–inclusive family conference was conducted by Ms M. Ms M is a long-standing Family Consultant with a career of over 30 years. She is both a psychologist and a sociologist.

2. In her affidavit evidence, the Wife stated that on meeting Ms M she offered her a copy of the DVO. Ms M did not take it saying she already had a copy. The Wife said that this was the final DVO. Ms M made no move to take it.

1. They proceeded to go upstairs with the Husband taking the stairs with the two younger children and the Wife taking the lift with the older children and the Wife’s mother. In the lift, the Wife says she again tried to give Ms M the DVO but after looking at the document, Ms M commented that she did not see how it was different.

2. After diverting the children to the playroom, Ms M took the Husband to find a room and suggested that the Wife and her mother find another one. She later returned and told the Wife that they were going to find a room where she could talk to both the Wife and the Husband. It was the Wife’s evidence that she was distressed at being in the same room as the Husband and told Ms M that she was terrified to be in the same room as the Husband and that the last time she was with him she thought he was going to kill her. Ms M then asked her if she was taken away in an ambulance or went to hospital, to which she answered, “No”.[40]

   [40] Affidavit of Ms Cloake, dated 6 September 2011 at paragraph 23.

3. Ms N, the Wife’s mother, gave evidence that she was in a separate room with the children but heard the Wife crying and saying, “No! No! No! Don’t you know that the last time I was near him he tried to kill me?”[41]

   [41] Affidavit of Ms N, dated 6 September 2011 at paragraph 7.

4. The Wife then stated that Ms M said that it would be so much harder if they had different rooms and that she would have to go back and forth and things being said could be misunderstood. She suggested that the Wife give it a go and if at any time it was too hard, to tell her and that would they then do it in different rooms.

5. Ms M’s evidence was that the DVO was shown to her in the lobby. She was aware that there was an interim order and believed that the one the Wife showed her may be the final one. She looked at it and it had the same exception in relation to when the parties came in for counselling. She asked the Wife, “Is it any different to the interim one”, to which the Wife responded, “No”.[42]

   [42] Transcript of proceedings, 15 August 2012, page 17 at line 10.

6. Ms M denied that the Wife was required to be in the same room as the Husband. She was asked if she would.

7. Ms M stated:

   On that day my preference was for the two of them to initially be together, but I clearly recall giving Ms Cloake the option of not doing that, and certainly when I heard the fact that this was the first time that she was in the same room with Mr Cloake I actually tried to counsel against her being in the same room with him.[43]

   [43] Transcript of proceedings, 15 August 2012, page 21 at lines 21-25.

8. Ms M stated that she had asked the Wife when they were downstairs if she would consent to being in the same room. She initially said no.

   
   

   Ms M said it was just to clarify what the issues were. The Wife asked how long it would take and she responded that it would take longer if they had separate sessions. The Wife then said “Okay. We will have a go at doing it together”.[44]

   [44] Transcript of proceedings, 15 August 2012, page 7 at lines 16-17.

9. Later, when they were upstairs, the Wife told her that it was first time since the domestic violence allegations that she would be in the same room with the Husband and she asked, “Are you sure that you want to do this?”. The Wife said, “No. No. I will be fine”, to which Ms M responded, “Well, if you’re feeling at all stressed – if you’re finding it difficult, you know, we will separate and do separate rooms”.[45]

   [45] Transcript of proceedings, 15 August 2012, page 7 at lines 20-26.

10. The Wife’s version of the events was put to Ms M and she denied it. In particular, she denied the Wife saying she was terrified of being in the same room as the Husband and that on the last time she was with him she thought he was going to kill her.

11. Ms M did recall the Wife talking about the incident and her going to the police station and being photographed but said that this was when they had the one-on-one interview on 27 April and could not recall her saying that on 23 March.

12. The Wife was clearly unhappy with the recommendations made by

    
    

    Ms M concerning the children – matters which I will address later in this Judgment. She wrote a three-page letter of complaint about the process on 8 April 2011 and volunteered that her mother could “attest to what was said”.[46] Ms N did submit an affidavit which supports in substance the claims made by the Wife.[47]

    [46] Affidavit of Ms Cloake, dated 6 September 2011 at Attachment “A1”.

    [47] Affidavit of Ms N, dated 6 September 2011.

13. I did not find the Wife to be a believable witness. Her evidence was at times evasive and she prevaricated. Her presentation was extraordinary. She insisted that certain of her views were factually correct even in the face of evidence to the contrary.

14. On the other hand, I found Ms M to be an impressive witness. I have given consideration to the fact that she has more experience than

    
    

    Ms Cloake in giving evidence in proceedings in making that assessment. She is also an experienced and well-qualified professional. I do not accept that she would have insisted on the Wife participating in a joint interview with the Husband in the face of the Wife’s opposition and obvious fearfulness.

15. In retrospect, the Wife may have regretted her action in agreeing to a joint interview. She has a tendency, in my view, to recreate events to suit her own perceptions such as:

    a)Insisting that the solicitors had to agree – that she had to consent – before the Orders of 20 July 2011 became operative;

    b)Insisting that the exception in the DVO to the Husband attending the children’s sporting events did not apply to training and that ‘the Registrar’ had told her that;[48] and

    c)Insisting that the police had told her that they had issued the Husband with a warning concerning the events of 18 June 2011 when the police report clearly indicates that they would take no further action.

    [48] Transcript of proceedings, 1 June 2012, page 179 at line 38.

16. Where the evidence of Ms M is in conflict with that of the Wife, I accept the evidence of Ms M. I do not accept the supporting evidence of Ms N. Ms N clearly has an interest in supporting her daughter’s claims. Further, she was not present during the joint interview between the parties and Ms M. I accept the evidence of Ms M and the Husband about what occurred during that interview. It is consistent with Ms M’s description of the Wife and her behaviour on 23 March and with the fact that at the time there was an exchange of correspondence between the parties’ solicitors concerning financial matters.[49]

    [49] Exhibit A13, Correspondence between solicitors.

The children

1. Ms M described the children as exceptional in their presentation. They were assertive. They knew what they wanted to do and they were very caring of their parents.

2. When it was put to Ms M that the children had denied to their mother that her recommendations reflected their wishes she responded:

   Can I just say to you I accept that they may have said that to their grandmother and to their crying mother given the fact that they were very aware of what their mother wanted, and that wasn’t joint care, and I believe certainly during one of my supervision sessions – and I’ll allow you into that; I’ll breach privilege – my concern was that if this matter continued for too long that these children, who were wonderful, secure, assertive, clear thinkers, caring of each other – that that would deteriorate and it may be waged that they may slowly be pulled into two directions, predominantly the mother’s direction because they were already aware of the fact that she was fragile, that she was stressed and that if they don’t adhere to her wishes that it would be difficult for her to enact communication. And they said the lack of communication between the parents was one of the major stressors for them.[50]

   [50] Transcript of proceedings, 15 August 2012, page 28 at line 47; page 29 at 1-11.

3. Ms M’s recollection was the children were aware of the assault because the Wife had told them about it. They were not present when it occurred.

4. She stated further:

   I didn’t interview the parents per se for that, and certainly after having interviewed the children – these children – if there are indicators which would alert a consultant to the potential of domestic violence in a household, these children had none of those hallmarks. They did well at school. They were socially skilled. They were verbal. They were incredibly caring. They obviously observed caring, intuitive, loving behaviour, because that’s how they related to each other. So a lot of their – no. All of their presentation, their wishes, their stated views about mother and father, their stated views about the parents’ relationship, gave me no indicators that this was a family of domestic violence, any sort of domestic violence, and that was – certainly when I interviewed Ms Cloake I asked her about what had been happening, and I was really alerted to, hey, this is dreadful from what she was saying. However, the children had no hallmarks of children who emanate from a home of domestic violence, and the self-esteem, the way they asserted – for instance, when I spoke with the children about things, they would actually clarify in the gentlest and politest of ways when I misinterpreted something. I clarified with them what I was going to put in the report. They agreed with it. They altered some of the things I said. For instance, they didn’t really want the Tuesday. I didn’t say anything about the Tuesday because they thought it was too messy to just go to dad for four hours. They couldn’t understand. Why can’t we just spend the night at dad’s house? The four hours is just really messy. And they had really clear views, but the way they spoke of them, no hallmarks of children from a domestic violence situation.[51]

   [51] Transcript of proceedings, 15 August 2012, page 31, lines 1-22.

5. Ms M interviewed all four children together and then the older three separately. She commented:

   It is evident that [W] (sic), [X], [Y] and [Z] share a close relationship and a good understanding of each other. They each possess good verbal skills and were respectful of each other’s right to have an opportunity to express their thoughts and feelings.

   [Z] appeared unsettled throughout the group session wishing to spend time with her father, rather than discussing the matters at hand. The three older siblings were effective in the way they appeased [Z] and commented that [Z] really missed her father. They feel that she has not been able to spend adequate time in his care since the parental separation. This is a feeling that was echoed by all the children.[52]

   [52] Family Report of Ms M released 17 June 2011 at paragraphs 18 and 19.

6. In her report, Ms M stated that the children had “spontaneously nominated a shared care arrangement as being their preferred option”.[53] In her oral evidence, she stated that, “It sort of echoed between them”[54] but it was [W] who initially said, “We’re all agreed . . .  We would like to spend an equal amount of time”.[55] She then asked the children individually what they thought. [Y] was a bit more ambivalent but both [W] and [X] were quite firm.

   [53] Family Report of Ms M released 17 June 2011 at paragraph 20.

   [54] Transcript of proceedings, 15 August 2012, page 5, line 5.

   [55] Transcript of proceedings, 15 August 2012, page 5, lines 8-9

7. Ms M stated that the children clearly understood that the Wife was against shared care and that she would have trouble enacting a shared care arrangement. It was [W]’s compromise that they spend more time with the Wife for now because their mother was clearly struggling with the stress of separation.

8. Ms M was asked if the children were aware that their mother was distressed about the concept of shared case and was that likely to have influenced how they approached the issue. She replied:

   Certainly. Certainly. It’s interesting because they’ve got a balance – and this was predominantly so in [W] and [X] – a balance of self-interest versus interest of people around them, and I do think that they would be very aware and would factor in what they said, and they did, I mean, during my interview, how mother would feel and what would be in her best interest, more so in many ways than their father. I believe they saw their father as coping, as being okay, more so than their mother, and therefore – and it’s curious because when I look at the way the children behave one can – I was going to use the word “conclude” but that’s probably too strong a word – that they’ve had strong influence from both their parents, and certainly their father, due to their level of activity, their interest in soccer, and it’s interesting because they were very clear in saying both their parents were involved in those activities, and you could certainly conclude that – I think, you know, they’ve been parented incredibly well up until this period. However, my concern would be that some of the activity and their self-esteem might be negatively influenced if mother’s depression or her anxiety didn’t lift, that that would actually potentially assert a fairly strong negative influence on their sense of wellbeing.[56]

   [56] Transcript of proceedings, 15 August 2012 at pages 34-35, lines 43-11.

9. Ms C prepared a Family Report based on the interviews with the parents and the children in January 2012. Her report was admitted without cross-examination.

10. [W], in her interview with Ms C, showed considerable knowledge about the circumstances of her parents’ separation. She told Ms C that she did not want to go week about and she would rather retain the current arrangements for “a little while longer or just may be add an extra day for Dad, something like that”.[57] She did not express any concerns about either parent’s care.

    [57] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 7.3.

11. [W] told Ms C that although she had told her father her views, she did not think that he really understood what she meant. She said that she did not want her father to be upset. She further commented:

    If the Judge was to tell her to go week about, [W] commented that she knew her mother would not like it very much and would be quite upset. [W] said this would upset her. She commented it was impossible for her not to upset one of her parents. [W] said her mother got upset about this dispute and “so she might get a little bit angry”.[58]

    [58] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 7.10.

12. Ms C reported [X] as telling her that he did not know how much time he wanted to spend with each of his parents. He described the current regime as “all right”.[59] While he would like a “bit of a change”[60] he did not know what change he wanted. He told Ms C that he had not expressed any wishes to his parents. He told Ms C that he had avoided saying a couple of things to her because he was afraid he might hurt someone emotionally. He went on to say may be he wanted an extra day or two in a week or a fortnight with his father.

    [59] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 8.1.

    [60] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 8.1.

13. [X] indicated to Ms C that both parents brought up reasons why he should be with each of them more. He said he was not really frightened of his father but went on to say he could get a bit angry. Mostly he was “Okay”.[61]

    [61] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 8.8.

14. [Y] told Ms C that the current arrangement was “all right” but that he would like “a little bit more time at Dad’s”.[62] He did not know what he thought about week about. He also showed a detailed knowledge of the circumstances of the parents’ separation. He told Ms C he did pleasant things with both his parents. He said he was sometimes scared of his father when he yelled at him for anything.

    [62] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 9.1.

15. [Z] told Ms C she liked the current arrangement. She missed whichever parent she was not with.

16. Ms C described the children as pleasant, well-behaved children who related well to each other. None of them wanted to upset their parents by expressing views contrary to their perception of their parents’ wishes.

17. Ms C recommended that the current regime continue. She stated with respect to the Wife, “Her stress would be increased should a shared care arrangement be ordered and any increase in their mother’s stress can only adversely impact on the children and her capacity to parent them”.[63]

    [63] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 11.10.

18. Ms C considered that the Wife would not psychologically damage her children “although they would be upset if she was further stressed”.[64]

Parenting

[64] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 11.10.

The applicable legal considerations

1. The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.

Parental responsibility

1. Further, s.61DA of the Act sets out that when making a parenting order, 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 unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[65]

   [65] Family Law Act 1975 s.61DA(4).

2. The rebuttal of the presumption does not in itself mean that the Court may nonetheless consider that it is in the best interests of the children for there to be joint parental responsibility.

3. The Wife in this case has placed significant emphasis on the incident of domestic violence which occurred on 7 December 2010. She submitted that in considering the issues of domestic violence the Court should apply the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Family Violence Act”). While that legislation commenced on 7 June 2012, the provisions of Schedule 1, with respect to family violence, only apply to proceedings instituted on or after commencement. The previous provisions therefore apply.

4. The Wife’s account of the incident on 7 December 2010 is contained in her statement to the police.[66] Her account of the incident, including her re-entry to the house on two occasions, is not consistent with her later statements about being ‘terrified’ of the Husband or her claims to have stated to Ms M that she thought he was ‘going to kill her’. Why continue to go back if that was the case?

   [66] Affidavit of Ms Cloake dated 12 April 2011 at Attachment A1.

5. In all of her affidavit material, the Wife alleged no other incident of domestic violence yet she reportedly told Ms W that the assault “followed a long history of control, threats of violence and psychological abuse”.[67] She also apparently demonstrated to Ms C how Mr Cloake would fold his arms and push her around with his arms and chest and told her that “previous events had not been as violent as the final one”.[68]

   [67] Affidavit of Ms Cloake dated 17 August 2011 at Attachment A1.

   [68] Court Exhibit 1, Family Report prepared by Ms C, dated 11 February 2012 at paragraph 6.7.

6. Why would the Wife make such statements to professionals but not in affidavit material which could be tested under cross-examination? Perhaps, as the Husband submits, the Wife was presenting to Ms C in a way that she hoped would achieve the outcome that she hoped to gain from that report.

1. The Husband’s behaviour on 7 December 2010 can in no way be condoned. I do not accept however that it represented the culmination of a history of abuse. I accept the professional opinion of Ms M that the children had none of the hallmarks of children from a home where domestic violence occurs.

2. Clearly by the time they saw Ms C, the children had been told the Wife’s version of events which led to the separation which downplayed her behaviour (“She wasn’t going out or cheating Dad or anything”[69] according to [W]), and which emphasised the assault (“He did hit Mum a bit”[70] – [W]; “He hurt Mum a lot”[71] according to [Y]). I can only assume that the Wife saw fit to tell the children these things as they were not witnesses to any of the events.

   [69] Court Exhibit 1, Family Report prepared by Ms C, dated 11 February 2012 at paragraph 7.2.

   [70] Court Exhibit 1, Family Report prepared by Ms C, dated 11 February 2012 at paragraph 7.4.

   [71] Court Exhibit 1, Family Report prepared by Ms C, dated 11 February 2012 at paragraph 9.4.

3. I have had the opportunity to observe the Wife in the witness box. I found her presentation to be exaggerated and disturbing. I cannot accept that on 7 December 2010 she was ‘terrified’ of the Husband – based on her police statement – and nor do I consider her to be genuinely terrified of him either at the time of the interviews with
   Ms M and Ms C or at the time of the proceedings.

4. The Wife gave evidence of a number of matters which she gave as examples of the Husband’s controlling behaviour. Many of these such as saying that he might chuck in his job, putting the children into too many activities and making last minute arrangements I do not consider to be examples of attempts by him to pressure her or control her.

5. The issue of the Husband’s attitude to her employment [omitted] is of a different nature. The Wife claims that the Husband opposed her taking up employment with [omitted] and later pressured her to leave. The Husband denies applying such pressure and referred specifically to a [transfer] she has been offered before she left [omitted] which he thought was a good position for her to take. He did not deny telling her that she could earn better money elsewhere and referring jobs to her for which he thought she might apply. I accept that the issue of the Wife’s future career was a matter about which the parties disagreed. I also accept that the Husband may have sought to persuade the Wife to his point of view. I am not satisfied that on the evidence that this could be described as controlling behaviour.

6. There was evidence about actions taken by the Husband about which the Wife was justifiably disturbed. These involved what might be described as an invasion of her privacy with respect to emails, telephone text messages and later the request to [X] to attach a device to a computer which was still in the marital home. The Husband was snooping. I accept that this behaviour was unacceptable. It does not amount however to ‘domestic violence’. Further, in relation to the last matter, not only did the Husband involve [X] but the child was caused further upset by being required, presumably by the Wife, to go to the police station to report what his father had done.

7. I do not accept that that Husband’s indication that he would attend [X]’s football training or the incident on 18 June were directed at the Wife but rather showed the Husband’s interest in and concern for his son.

8. A further consideration with respect to joint parental responsibility concerns the capacity of the parties to communicate and make decisions jointly about the children’s future. The Wife seeks sole parental responsibility given the parents’ compete inability to communicate. The reality is that the Wife refuses to communicate with the Husband. While it is true that the current DVO places limitations on the parties’ direct communications with each other, and they have, apparently had no face-to-face communications with each other since the meeting in March 2011 with Ms M, I am satisfied that it is the Wife’s compete refusal to communicate with the Husband which prevents such communication.

9. Until now the parties communicated via their solicitors and quite a lot of that correspondence – much of it about financial matters – was before the Court. Communication in this way is not only expensive but unsustainable and it does little to assist either parties, or the children, for them to be dependent on their solicitors as a channel of communication.

10. In this day and age there are ways for the parties to communicate which do not involve face-to-face encounters or even speaking to each other. Eventually the Wife will need to come to terms with the fact that it is in the interest of the children that she communicates with their father. I do not accept that the only, or most appropriate solution, is to cut him out of any role in making decisions about the children because of the Wife’s refusal to communicate.

Equal time spent with each parent

1. Section 65DAA(1) of the Act requires that where a parenting order has been made for equal joint parental responsibility, the Court is to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.

2. The Wife has consistently resisted any move towards the children having equal time with each parent, even going to the extent of refusing to comply with what were extant Orders of this Court. She made it clear to the children prior to their meeting with Ms M that she opposed such an arrangement and has not waivered in her opposition. She told Ms C that under such an arrangement the children would never have ‘a home’.

3. The Husband, equally, has pursued the issue of equal time although he was prepared to agree to less time when the Wife presented him with the option of less time or no time. The Husband’s view was that the current time arrangement was not in the best interests of the children. He did not think that the Wife was acting in the best interests of the children by doing everything to prevent him having a good relationship with the children.

4. I will return to the consideration of time spent after considering the s.60CC factors.

Primary considerations

Section 60CC factors

1. Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence. These are matters I shall address below.

Section 60CC(2)(a)

1. The evidence in this case suggests that the children have a meaningful relationship with both parents. The children want to spend time with both parents. Neither Ms M nor Ms C spent any significant time in observing the children with their parents but neither reported any reluctance on the children’s part to spend time with either parent. The children are now 14, 11 and 7. Their relationships with both parents were clearly well-established by the time of the separation.

2. Ms M referred to the lack of communication between the parents as a major stressor for the children and to the fact that they were very caring of their parents. Ms C made similar observations.

Section 60CC(2)(b)

1. I am satisfied that apart from what they have been told about the incident on 7 December 2010, the children have not been exposed to abuse, neglect or family violence. I am satisfied that nor are they likely to be exposed to such behaviour.

2. [W] referred to the potential for her mother to get “a little bit angry”[72] and [X] also said that father could “get a bit angry”.[73] I am satisfied from the evidence that both parents are capable of showing anger and this is a matter that they both need to address.

   [72] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 7.10.

   [73] Court Exhibit 1, Family Report dated 11 February 2012 prepared by Ms C at paragraph 8.8.

Additional considerations

1. Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.

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

1. I am satisfied that Ms M gave an accurate report of what the children wished to happen at the time they saw her in March 2011. I am also satisfied that Ms C accurately reported what was said to her by the children in February 2012.

2. It was in my view, quite tragic, that the assertive, confident, secure, clear thinking and caring children seen by Ms M in March 2011 had become much less so – with the exception of the last of these qualities – by the time Ms C saw them in February 2012. Her prediction of the impact of the protracted litigation would appear to have been realised, particularly with respect to the older two. Both of the twins seemed much more concerned about the impact of what they said on their parents. They had after all seen the impact on their mother of the recommendations of Ms M – recommendations which she had discussed with them – and had responded by denying that that was what they wanted.

3. I have no doubt that the Wife’s views and her need to have these reflected in the orders of the Court have had an impact on the children. At 14, the older two are old enough to be well aware of how upset their mother was by the 20 July 2011 Orders and why. They knew that whatever they said, one of their parents would be upset. I cannot help but form the view that they believed that their father would ‘cope’ better than their mother.

4. At the same time I am satisfied that despite being used to the current arrangements and telling Ms C the current arrangements were ‘all right’ that all of the children wanted more time with their father.

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)

1. The children have a loving and caring relationship with both of their parents. There was little evidence before the Court about any other significant relationships in their lives. The Husband has re-partnered. Although he is not co-habiting with her, the children have met her and her son who is the same age as the twins. At the time that Ms C wrote her report, the children clearly did not know her well.

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

1. It is clear that the Wife has not attempted to facilitate and encourage a close relationship between the children and the Husband. I do not accept that this is because she has been so damaged by the Husband’s behaviour but rather consider that she has put her emotional needs before those of the children.

2. The Wife’s behaviour in relation to the 20 July 2011 Orders and her refusal to communicate with the Husband are indicative of her inability to focus on the children’s need to have two loving parents in their lives. She could not even admit that the Husband loved the children or that his desire to spend time with them was in any way motivated by his love for them.

3. The Husband, on the other hand, conceded that the Wife was a good mother and cared for them well. While he was critical of her in other ways he was not critical of her mothering.

4. Both parties have unfortunately seen these legal proceedings as about ‘winning’ and ‘losing’. While they both profess to be motivated by the interests of the children, they are not able to divorce this from their views about each other.

5. On balance however the Husband, in my view, is more able to facilitate and encourage a close relationship between the children and the Wife than she is able to facilitate and encourage the relationship with him.

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

1. There is no suggestion of the children being separated from each other or from either of their parents. Any change that would result in the children spending more time with their father is likely to be strongly resisted by the Wife.

2. Ms C predicted that a shared care arrangement would increase the Wife’s stress. In my view, any arrangement which did not give her sole parental responsibility would ‘stress’ the Wife. While the impact of the Wife’s distress on the children is a factor the Court must consider, it is not the sole determinant on what is in the children’s best interests.

3. The Husband had a considerable involvement in the children’s lives prior to the separation and there is no indication that they did other than enjoy it.

Section 60CC(3)(e): The practical difficulty and expense of the 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

1. The parents both live in Canberra and there would appear to have been no difficulties from a practical view point in the children spending time with either of them. No issue was raised about the Husband’s capacity to get them to school or to any other activity. [X] did raise an issue about wanting to be at his mother’s on Mondays because of [activity omitted].

2. Apart from the difficulty in communicating between the parties, no other difficulties were identified.

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

1. Both parents have a capacity to provide for the children’s needs at a physical and intellectual level.

2. The Wife raises the Husband’s lack of insight into his own behaviour to suggest that he has an inability to provide for the children’s emotional needs.

3. Both parents placed [X] in an invidious position, the Husband by asking him to attach a device to a computer and the Wife by having [X] tell the police what his father had asked him to do. Ms C’s description of [X] clearly shows a deterioration in his confidence and self-esteem since Ms M’s observations of him in March 2011.

4. Ms M raised the concern that the Wife’s distress might have on the children’s well being. I am satisfied that particularly the older children are aware of this distress. It places an extraordinary burden on them to have to look after their mother’s emotional needs. I am not sure that she is capable of looking after theirs.

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

1. The Wife complained about the Husband’s tendency to involve the children in too many activities. There was no evidence to suggest a significant diminution in these activities since the separation. All of the children seem to have very active lives and their involvement in sport is encouraged by both parents.

2. The Wife also complained of the Husband’s impromptu trips to Sydney with the children to go to a football match or the drive-in. There was no evidence however of any adverse impact on the children of these activities.

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

1. Section 60CC(3)(h) is not relevant to these proceedings.

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

1. There was some criticism raised of the Husband in relation to placing pressure on the children. It is clear that the Wife has also placed emotional pressure on the children with respect to her needs and wishes. The Husband does appear to have taken on board comments made by Ms C in that respect.

Section 60CC3(j): Any family violence involving the child or a member of the child’s family and s.60CC3(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

1. The issue of family violence has already been addressed. There is a DVO in place which expires in March 2013. The Husband consented to the DVO without admissions.

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

1. The proceedings in this matter have been on foot for a considerable period of time. The children have been involved in two family reports with two different family consultants. They need the stability of some finality to arrangements which will allow them to get on with their lives.

Section 60CC(4) Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. Section 60CC(4) deals with the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent.

2. The Husband has clearly taken the opportunities available to him to spend time with the children and participate in their lives. His attendance at the children’s weekend soccer, on a weekend when they were not with him, is indicative of this. He has been thwarted in his ability to participate in making decisions about major issues in the children’s lives by the Wife’s refusal to communicate with him.

Property

Relevant Legal Principles

1. Section 79 of the Act sets out the Court’s powers in determining applications for a property settlement.

2. Section 79(1)(a) provides:

   (1)In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property;

3. Section 79(2) provides:

   (2)The court shall 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.

4. Section 79(4) sets out the matters which the Court must take into account:

   (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage 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 marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, 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 marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

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

1. In Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener)[74] the Full Court of the Family Court of Australia set out the preferred approach to be adopted by the Courts in property matters involving a four-step approach which includes:

   a)Identifying the property, liabilities and financial resources of the parties at the date of the hearing;

   b)Identifying and assessing the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c); and

   c)Identifying and assessing the relevant matters in ss.79(4)(d), (e), (f) and (g) and s.75(2).

   d)Considering the effects of those findings in order to resolve what order is just and equitable in all the circumstances of the case.

   [74] Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

2. Before dealing with the issues as set out, it is necessary to deal with an extensive submission by the Wife concerning a failure to disclose on the part of the Husband. A failure to disclose, in so far as it should result in an adjustment in favour of the other party, is relevant to those cases where the Court cannot be satisfied as to the extent of the property pool. The Wife quite correctly identified in submissions the relevant case law.

3. In this case, the Wife refers to the value of the business [T], the arm of that business [I] and the number and value of the Wesfarmers shares. The Husband contends that all documents in his possession were provided to the Wife’s solicitor on two disks, one sent in December 2011 and one in February 2012. He did however produce additional documents, during his evidence.

4. It is apparent that [I] is not a separate business as such but a trading name under which [T] offers [omitted] services. While it was registered shortly before the separation, it did not commence trading until 2012 – over 12 months after the separation.

5. In relation to [T], I accept that the information provided was inadequate. In particular, the absence of any business tax returns for the years ending June 2009, June 2010 and June 2011, inhibited the capacity to obtain any valuation of the business, although there was no evidence that the Wife has tried to do this.

6. The Husband is the sole director and shareholder of [T]. It is in reality, the vehicle through which he derives his income. The failure to disclose, in my view, is particularly relevant to obtaining a clear picture of the income the Husband is able to derive from that business. Knowing what it might be worth in the market may be of little significance however. It depends on whether it is considered as ‘property’ or a financial resource controlled by the Husband.

7. The nature of the business is not capital intensive and it relies almost exclusively on the skill and knowledge of the Husband.

8. The Husband gave somewhat unclear evidence about income derived from the business other than his salary. The Husband’s evidence was that he was paid a salary of $90,000.00 per year. He also referred to an additional amount of $30,000.00 or $35,000.00 paid as director’s fees. The Husband also gave evidence of receiving a ‘return of equity’ from the company since July 2011. He agreed that the equity invested in the company came from joint funds of the parties prior to separation.

9. The Wife submits that after July 2011, further amounts of $15,000.00, $20,000.00, $30,000.00 and $12,500.00 were drawn from the company by the Husband, as director’s drawings.

10. I am satisfied that the Husband did produce to the Wife the relevant documents in his possession at the time. The fact that he had not ensured that recent tax returns for the business had been completed makes it difficult to ascribe a particular value to the business. The relevance for the purposes of these proceedings however, in my view, is essentially that the business is the vehicle by which the Husband derives his income. Further, any return of equity derived from monies invested in the business prior to separation should be dealt with as an amount to which the Wife has an equal entitlement.

11. The other issue of non-disclosure raised by the Wife concerns the number and value of certain Wesfarmers shares. The Husband says he does not know the number and value of the shares because they derived from a trading-in of Coles-Myer shares. Information about that would have been sent to the former marital home. I accept that in the circumstances, an order that the shares be sold is appropriate.

12. With the exception of moneys claimed by the Husband as a ‘return of equity’ I am not satisfied that any other adjustment in favour of the Wife should be made as a result of failure to disclose on the Husband’s part.

The asset pool

1. A revised schedule of assets was produced during the course of the proceedings which for the most part was agreed. I will therefore deal with the areas of disagreement. The Husband stated that two items in the schedule for ‘ITO Shares’ relate to the same shares, which were sold for $4,500.00 and formed part of the $22,500.00 obtained from the sale of shares and used since separation to pay the mortgage on the marital home. The Husband further states that the ‘MQA shares’ are owned jointly and that the ‘GNS shares’ are owned by [T] and not the Husband. The ‘Coles Myer shares’ referred to were traded-in to get the Wesfarmers shares which have previously been discussed. The ‘IIF shares’ were shares in a company now delisted and they formed part of the ‘ITO shares’ already referred to. The Husband says that he has no ‘Telstra shares’; the only ‘Telstra shares’ are those owned by the Wife.

2. In relation to the items claimed as add backs by the Wife, the Husband states that [T] is a financial resource of the Husband and should not be dealt with as property of the marriage. The business [P] was sold to the Wife’s sister for $100.00 after the Wife rejected an offer that she buy it for $1.00. The Husband submits there is no evidence of the value of that company at the date it was transferred or that it had any intrinsic value above what it was sold for. The Wife also seeks to add back $4,000.00 being a fine paid by her to the Australian Taxation Office (“the ATO”) for filing late tax returns. The Husband submits that it was her responsibility to ensure that her personal income tax returns were lodged. The final add back proposed is an amount of $80,000.00 being monies withdrawn from [T] as dividends or returns to equity. The Husband submits that this is his income and should be treated as such.

3. I intend to accept the Husband’s evidence with respect to the shareholdings. In relation to the add backs I am satisfied that [T] should be treated as a financial resource of the Husband’s which enables him to generate quite a reasonable income. There is no valuation of the business and I am not persuaded that a value based on its 30 June 2011 balance sheet is appropriate. In relation to [P], I accept that it was purchased for $70,000.00. At one stage both the Wife and her sister did some work in the business which essentially provided [omitted] services under contract. I am further satisfied that given its dependence on the people performing the work, there would have been little ‘good will’ had it been sold to a third party. I therefore make no allowance for the business [P].

4. With respect to the fine paid by the Wife for lodgement of late tax returns I see no reason why that should be regarded as a joint liability. Finally, dealing with the $80,000.00 withdrawn from [T], I consider that a distinction should be drawn between director’s fees and return to equity. As the evidence shows that the former was $30,000.00, an amount of $50,000.00 will be added back into the pool as a joint asset given on the Husband’s own evidence the equity in the business came from joint funds.

5. The non-superannuation assets therefore consist of the following:

Assets
Property N, [N], ACT	$775,000.00
Property D, [D], QLD	$480,000.00
VBA shares	$210,000.00
GMG shares	$51,225.00
NFK shares	$25,000.00
TLS shares (Wife)	$2,127.00
QAN shares	$2,347.00
MAH shares	$91,500.00
MQA shares	$4,400.00
1998 Grand Voyager (Husband)	$10,000.00
2006 Falcon (Husband)	$14,000.00
Go Kart trailer	$4,500.00
Household contents	$10,000.00
Savings (Husband)	$3,000.00
ANZ Account (Husband)	$500.00
[T] return to equity	$50,000.00
Total	$1,733,599.00
Liabilities
Mortgage on Property N, [N], ACT	$310,740.00
First mortgage on Property D, [D], QLD	$174,187.00
Second mortgage on Property D, [D], QLD	$59,938.00
Viridian line of credit	$147,110.00
Total	$691,975.00
Total net assets	$1,041,624.00
Superannuation assets
[D] Pension (Husband)	$20,000.00 p.a.
[A] Super (Husband)	$106,952.00

[M] Pension (Wife)	$271,163.00
[A] Super (Wife)	$76,534.00
Total (excluding [D])	$454,649.00

Contributions

1. The Husband submits that neither party had any significant assets at the beginning of the marriage. The Wife did contribute two small lump sums of $30,000.00 in 1992 from a worker’s compensation settlement and $5,000.00 in 1993 being a gift from her parents.

2. The marriage was of some 23 years and both contributed from their earnings to the acquisition and maintenance of properties and in taking care of the home and the children. The contributions should therefore be assessed as equal.

3. The Wife submits that both parties were in paid employment during the marriage and contributed their income to the benefit of the family. The Wife says that she sacrificed her career in order to support the Husband’s [omitted] career by following him to [omitted transfers] and later left a secure job with promotional prospects to work in the Husband’s business. The Wife further submits that she was the primary caregiver throughout the relationship.

4. Considering the length of the marriage and the contributions, both financial and non-financial, made by both parties, I accept that the contributions during the marriage should be considered as equal.

5. The Wife further submits that her post-separation contributions in supporting and caring for the children far outweigh the Husband’s who has retained the whole of his income for his own benefit, including rental from the investment property and has made minimal contribution to reducing the debts of the parties.

6. I accept that in the 21 months since the separation the Husband’s contribution to the support of the family, and in particular the reduction of joint debts, has not been commensurate with the financial resources at his disposal.

Section 75(2) factors

1. The Husband has an income, on his own admission of about $160,000.00 per annum and on the Wife’s submission of about $200,000.00 per annum. The Wife in September 2011 deposed to being in receipt of social security benefits and a “small [omitted] pension of approximately $82.00 per week”.[75] In her most recent financial statement[76] she claimed an income of $150.00 per week from her work with [omitted], dividends from shares of $50.00 per week, the Veteran’s Affairs pension of $82.00 per week and parenting payments/child support amounting to $743.00 per week.

   [75] Affidavit of Ms Cloake dated 1 September 2011 at paragraph 12.

   [76] Financial Statement of Ms Cloake dated 24 May 2012.

2. The Husband contends that the Wife is capable of earning an income similar to his own. The Wife refused to co-operate in attending upon an employment consultant.

3. Based on the Wife’s CV and her own experience in the [omitted] industry of some 20 years an employment consultant, Ms B (“Ms B”), considered that the Wife was capable of earning at least $80,000.00 per annum in a full-time position or $60.00 per hour as a contractor.[77]

   [77] Affidavit of Ms B dated 29 May 2012 at Attachment ‘B’.

4. The Wife submitted that she had been out of the workforce for some time and since 2008 had only worked for her Husband.

5. The Husband submits that if the Court does not determine that the children should spend equal time with each parent, the adjustment in favour of the parent with primary care should be 5%. The Wife submits that should the current parenting arrangement remain she should receive 70% of the assets including the Husband’s superannuation and retain her own superannuation.

6. With respect to superannuation, the Husband proposes a 50/50 split with the exception of his [D] pension which should be split 40/60 in his favour given that part of it was accrued prior to the marriage.

7. The Wife also seeks ongoing spousal maintenance in the sum of $500.00 per week until the youngest child [Z] commences high school.

Conclusions

Parenting

1. The Court was hampered in determining this matter by the lack of any probative medical evidence about the Wife’s mental health. A psychiatric report would have been of assistance. The only evidence as such was a one-page letter from a psychologist produced on the day she first saw the Wife and apparently created for the purpose of a stay order application.

2. I therefore need to consider all of the evidence before me including my own observations of the Wife in the Court.

3. The cogent and detailed description given to the police by the Wife concerning the events of 7 December 2010 does not create the image of a woman who fled in terror from a husband she believed was trying to kill her. It is a picture far more consistent with the impression of an assertive and angry woman seen by Ms M in March 2010. It is not the grief stricken and incoherent woman described by Ms C.

4. At some point in time the Wife became a victim. Whether or not she chose to adopt this role is difficult to ascertain. Her behaviour in the witness box was at least exaggerated, at worse, melodramatic.

5. Her behaviour on 16 June 2011 was also exaggerated and showed no concern for the child [X]. I can only imagine how distressed and embarrassed a 13-year old boy who had just suffered an injury in a public place would be to see his mother screaming at his father, who, I am satisfied, had only come over to see that his son was all right.

6. The picture created of the Wife as a woman who always wanted to be a stay at home mum is also inconsistent with the submissions that the Husband’s [omitted transfers] ‘destroyed her career’ and that he later pressured her until she left a job she ‘loved’.

7. Despite Ms C’s view that the Wife was able to shield the children from her distress, the totality of the evidence suggests that the older children are clearly aware of how she feels and [W], in particular, has responded as a caring child who feels she needs to protect her mother.

8. It is tragic that the inability of the parents to resolve their conflict and the Wife’s refusal to even engage with the Husband has been responsible for a clear deterioration in the confidence and the self-esteem of the children as seen from the changes between Ms M’s observation of them and Ms C’s.

9. The Wife has attempted to portray the Husband as violent and controlling. I am sure that despite his unassuming demeanour he has a strong personality and a conviction in the correctness of his own views. These may have been reassuring qualities to the wife when she married him at the age of 20 but less attractive to a woman in her forties. Faced with his wife’s withdrawal and her formation of on-line relationships, the Husband approach to confronting her only served to shatter the relationship irreparably.

10. I do not accept that the Husband has a propensity for violence. He does have a rigidity in his views which would make compromise difficult. I am satisfied however that he did reflect on the views expressed by
    Ms C – despite not agreeing with them – and backed off from attempting to influence the children. I do not think that the Wife is currently capable of seeing beyond her own needs to see that her behaviour may be harming her children.

11. It is not often that the Court goes against the recommendation of a Family Consultant.

12. The Court however has had the opportunity of considerably more evidence than Ms C had before her in February 2012. These children need stability and security. They need to be relieved of the burden of looking after their parents’ emotional needs. They also need to spend more time with their father.

13. The Wife’s behaviour is clearly intended to marginalise the Husband in the children’s lives. This is not a response to their needs but to hers.

14. The Husband submitted that the inability of the parties currently to communicate would not impact significantly on their capacity to implement a shared care arrangement.

15. The Husband referred to the risk factors identified by Chisholm and Macintosh[78] as being:

    Parent factors

    ·Low level of maturity and insight.

    ·A parent’s poor capacity for emotional availability to the child.

    ·Ongoing high level conflict.

    ·Ongoing significant psychological acrimony between parents.

    ·Child is seen to be at risk in care of one parent.

    [78] Jennifer MacIntosh and Richard Chisholm, Shared Care and Child’s Best Interests: a conflicted separation, (2008) 20 Australian Family Lawyer, 3-16.

    Child factors

    ·Under 10 years of age.

    ·Child is not happy with shared arrangement.

    ·Child experiences a parent to be poorly available to them.

16. The Husband submits that the majority of these risk factors do not apply in this case.

17. As might be expected, the Wife placed great emphasis on the high level of conflict and ongoing significant psychological acrimony between the parents.

18. The question for the Court is whether, despite the conflict and acrimony, the benefits to the children of spending equal time with their father outweigh those considerations and whether such an arrangement is manageable.

19. An equal time arrangement where the children are older does not require the same level of co-operative parenting as is necessary when the children are young. While [Z] is only seven, there is clearly a close relationship between the children and their support for each other is important.

20. It is clear that currently neither parent is able to engage in collaborative parenting. They are however both capable of being effective parents provided they are able to disengage from their feelings about each other and concentrate their energies on providing the best care to the children when they are in their respective care.

21. In my view, these children are quite able to cope with parallel parenting. The benefits to the children of having a greater involvement by their father in their lives outweigh the undoubted negative feelings of their mother about such a recognition of his role. The Wife needs to move past her own emotional responses and not burden the children with them.

22. I am satisfied that an order for equal time is both reasonably practical and in the best interests of these children. The Husband is able to organise his work to be available to the children and such an arrangement would give the Wife the opportunity to engage in further employment herself. The children are all at school and there is no suggestion that their schooling should be changed.

23. The property orders I intend to make would enable the Wife to remain in the marital home where there is a familiar environment for the children. The Husband will need to find more suitable accommodation. He has indicated an intention to do that.

24. A routine involving only one transfer between the parents each week would minimise the need for direct contact between the parents and enable the children to have the benefit of both parents’ involvement in their day to day activities. After the experiences they have been through these children need a life with both parents which is as normal as possible.

25. The Husband has proposed sensible orders for ongoing communication between the parties and it is hoped that once this litigation is no longer dominating their lives, the parties can address their future roles as separated parents as the mature and intelligent adults that they undoubtedly are.

Property

1. There was little information before the Court about the history of the parties with respect to their accumulation of assets and liabilities. On the basis of the material before me I have made an assessment of the property pool and the contributions of the parties to that pool.

2. I am satisfied that some consideration should be given to the post-separation position of the parties where the Wife has had a limited income and the Husband has had the benefit of the income generated by [T] as well as rental income from the [D] property.

3. With respect to the s.75(2) factors, I have taken into account the following matters:

   ·The parties will have joint parental responsibility for the children and equal time with them.

   ·Both of the parties are relatively young and have many years of workforce participation ahead of them.

   ·The Husband is likely to be able to generate income in excess of that generated by the wife for the foreseeable future although I accept that she is able to generate more income than she is currently.

4. I am satisfied that it is appropriate to treat the assets as comprising three separate pools.

   ·The first of these comprises the non-superannuation assets,

   ·The second comprises the superannuation assets; and

   ·The third comprises the Husband's [D] pension.

The first pool

1. With respect to the first pool, I consider taking into account the post-separation contributions and the s.75(2) factors that a split of 57% to the Wife and 43% to the Husband is just and equitable.

2. This can be achieved by transferring to the Wife:

   ·The house at Property N, [N] (subject to the existing mortgage),

   ·The household contents;

   ·The Grand Voyager motor vehicle;

   ·$25,000.00 being 50% of the return to equity; and

   ·The MAH Shares.

   She would also retain her Telstra shares.

3. Upon sale of the Wesfarmers shares, she should also receive 57% of the net proceeds. Excluding the Wesfarmers shares, this represents a total of $600,700.00.

4. The Husband would then keep:

   ·The [D] property;

   ·All other shares;

   ·The 2006 Falcon motor vehicle;

   ·The Go Kart trailer;

   ·His savings and the balance of the return to equity

   and be responsible for the two mortgages on the [D] property and the Viridian line of credit. He would therefore have 43% of the assets.

The second pool

1. With respect to the superannuation pool, I consider that the Wife is less likely to accrue the level of superannuation that the Husband has the capacity to accrue. A 57% split of the superannuation in her favour would give her a total of $259,150.00 in superannuation assets. An amount of $88,547.00 should therefore be allocated to the Husband from her [M] pension fund.

The third pool

1. With respect to the [D] pension, I accept that some of the accrual with respect to that pension occurred prior to the relationship. Given that the substantial accrual was after the marriage, I consider a 55% allocation in favour of the Husband to be appropriate. An amount of $9,000.00 per annum is therefore to be allocated to the Wife from the Husband's [D] pension.

Spousal maintenance

1. I am not satisfied that the amount of spousal maintenance claimed is justified. While the Husband has a more than adequate income, he will also need to find suitable housing which will have an impact on his disposable income in the future. He is currently paying child support and is likely to continue to be liable to make some contribution in this respect to the Wife despite the parenting orders.

2. The Wife has worked though most of the marriage and the youngest child is now seven. I see no reason why she cannot increase her workforce participation and thereby improve her income. I accept Ms B’s evidence in this regard. Further, as a result of these orders she will have an immediate benefit from the receipt of part of the Husband's [D] pension.

3. In order to assist the Wife while she obtains suitable ongoing employment, I order that the Husband pay spousal maintenance in the sum of $300.00 per week for a period of 26 weeks.

4. I am satisfied that in all the circumstances of this case, the property orders represent a just and equitable outcome.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  18 October 2012