CUNNINGHAM & CUNNINGHAM

FAMILY COURT OF AUSTRALIA

CUNNINGHAM & CUNNINGHAM

[2018] FamCA 415

FAMILY LAW – CHILDREN – Best Interests – Where there are allegations that the father sexually abused the parties’ daughter and also possibly sexually abused their son – Where the daughter has made disclosures about the father – Where the father denies that he has sexually abused either child and asserts that the mother does not genuinely believe the allegations she has made – Where the father believes the mother has made up and maintained the allegations against him with malicious and wilful intent – Whether the father presents an unacceptable risk – Where the parents are to have equal shared parental responsibility in respect of certain long-term decisions and the mother is to have sole parental responsibility in respect of other long-term decisions –Where an order is made for the children to live with the mother and spend no time with the father – Where the father may communicate with the children in writing or by telephone should they express such a wish.

FAMILY LAW – PROPERTY – Final – Where the parties had little property and liabilities of significance at the commencement of their relationship – Where the parties have several liabilities of which substantial amounts were incurred by each party in the years between their separation and the finalisation of the trial – Where the parties’ contributions over all spheres should be treated as equal – Where justice and equity requires the parties’ interests to be adjusted by 17.5 per cent in favour of the wife – Where a superannuation splitting order is made.

FAMILY LAW – SPOUSAL MAINTENCE – Factors considered – Where the Court is not persuaded that the wife is unable to support herself adequately or will not be able to support herself adequately over the next five years, without further support from the husband in the form of periodic spousal maintenance payments – Where the wife’s application for spousal maintenance is dismissed and the current interim spousal maintenance order will be discharged as at the date of the settlement of the sale of the former family home.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357
Clauson and Clauson (1995) FLC 92-595
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Cunningham

RESPONDENT:

Ms Cunningham

INDEPENDENT CHILDREN’S LAWYER:

Mary-Ann Huth

FILE NUMBER:

BRC

10161

2015

DATE DELIVERED:

8 June 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

9, 10, 11, 12 & 13 January
2017; and 17, 18, 19, 20, 21 & 26 July 2017; and 29, 30, 31 January, 1, 2, 5 & 6 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McMillan QC
(9-13 January 2017)

SOLICITOR FOR THE APPLICANT:

HopgoodGanim Lawyers

(9-13 January 2017)

THE APPLICANT:

Self-represented

(17-26 July 2017; 29 January-6 February 2018)

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Stewart Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Huth
Legal Aid Queensland

Orders

Parenting

That all previous parenting orders be discharged.
That the children, D born … 2008 and B born … 2010, (“the children”) shall live with the mother.
That the mother and the father shall have equal shared parental responsibility for the children in respect of any decisions to change the children’s names and to change their place of residence to a place outside Brisbane or E Town, but otherwise the mother shall have sole parental responsibility for the children in respect of all other decisions of a long-term nature about their care, welfare and development.
That the children shall not spend time with the father and the father shall not communicate with the children other than by way of writing letters and/or cards to them at a postal address to be provided to him in writing by the mother within seventy-two (72) hours of any change to what is their otherwise current postal address.
That should either of the children express to the mother a wish to communicate with the father by telephone or in writing, the mother shall use her best endeavours to facilitate such communication.
That the mother shall provide the father with copies of the children’s school reports and annual school photographs within seven (7) days of receiving them herself from the children’s school or schools, by sending them to a postal address provided to her in writing by the father within seventy-two hours of any change to what is his otherwise current postal address.
That the Independent Children's Lawyer be discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

That the wife retain as her sole property and the husband relinquish and transfer to the wife all right, title and interest, if any, to and in the following:
(i)The wife’s bank accounts;
(ii)The furniture, chattels and personal effects in her possession save as otherwise provided in these orders;
(iii)The German motor vehicle 1 registration number … subject to the chattel mortgage owing to F Finance Ltd;
(iv)The wife’s superannuation entitlement with G Super;
(v)Any life insurance or assurance held in the wife’s name.
That the husband retain as his sole property and the wife relinquish and transfer to the husband all right, title and interest, if any, to and in the following:
(i)The husband’s bank accounts;
(ii)The furniture, chattels and personal effects in his possession and those items referred to in paragraph (11) hereof;
(iii)The German motor vehicle 2 registration number …;
(iv)The husband’s superannuation entitlement with H Super subject to paragraph (14) hereof;
(v)Any life insurance or assurance held in the husband’s name.
That, within 7 days of the date of this Order, the wife return to the husband by causing them to be delivered to an address of the husband’s nomination, the following items:
(i)The bottle of vintage wine;
(ii)The knife set and knife block and sharpener;
(iii)The signed LP;
(iv)The dinner set given by the husband’s parents and grandparents.
That the husband be responsible for and meet payment when due the husband’s credit card debts and any other liability (including taxation liability, personal loan liability or liability to his parents, friends or other members of his family) in his name not otherwise dealt with in these orders and indemnify and keep indemnified the wife from all liability howsoever arising in relation to same.
That the wife be responsible for and meet payment when due the wife’s credit card debts and any other liability (including taxation liability, personal loan liability or liability to her parents, friends or other members of her family) in her name not otherwise dealt with in these orders and indemnify and keep indemnified the husband from all liability howsoever arising in relation to same.
That, pursuant to section 90MT(1)(a) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in H Super, the wife shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount of $713,000 and there will be a corresponding reduction in relation to the husband’s interest in H Super.
That this order have effect from the operative time and the operative time is four (4) days after a sealed copy of these Orders are served on the Trustee of the H Super fund.
That having agreed that they have been given procedural fairness, these Orders bind the Trustee of the H Super Superannuation Fund.
That the property situated at J Street, Suburb K, in the State of Queensland, more specifically described as Lot … on Registered Plan …, Parish of …, County of …, Title Reference … (“the real property”) is vested in the wife as trustee for sale and, as trustee for sale, the wife is hereby appointed to execute all deeds, documents and instruments in the names of the wife and the husband, and to do all acts necessary to give full force and effect to the terms of these Orders should the husband fail to comply with the terms of these Order and in her role as trustee for sale the wife may retain a real estate agency (or more than one real estate agency) to assist with the sale of the real property, incur reasonable advertising expenses in respect of any sale or auction the real property and appoint solicitors to act as solicitors for the vendors for any sale of the property.
That a copy of these Orders may be provided to the mortgagee of the real property and any other persons noted on the Register who may have an interest therein and any person involved in the sale with whom the wife is dealing who may need to see proof that the wife has been appointed trustee for sale of the property.
That the wife may sell the property by private treaty entered into within three calendar months of the date of these orders at a price that she accepts, save that she shall give the husband no less than 72 hours’ written notice of her intention to sign a contract in that period as well as the details of the sale price and any special terms or conditions of the proposed contract.
That in the event that the wife gives the husband notice of her intention to sign a contract pursuant to paragraph (18) of these Orders, the husband may within 48 hours of receiving that notice exercise the right to purchase the real property at a better price than the wife has given him notice that she will accept, by presenting the wife with an offer to purchase on no less favourable terms and conditions as the offer the wife has given him notice she intends to accept, save that the price he offers must be greater than the price offered that the wife has given notice she intends to accept and, if he does, the real property shall be sold to the husband on those terms.
That if no contract is in place at the end of three calendar months from the date of these Orders, the sale of the real property shall go to public auction within four calendar months of the date of these Orders, with the wife, as trustee for the sale of the real property, having the sole right to set the reserve price, but with each of the parties having the right to bid at the auction and to buy the real property for the highest bid, on the usual auction terms (10 per cent deposit and 30 day settlement period), if they wish.
That from the date of these Orders until the date of settlement of a contract for the sale of the real property, the wife shall:
(i)Have sole use and exclusive occupation of the real property, surrendering up vacant possession on the date of settlement of a contract for sale;
(ii)Continue to make payments in respect of the mortgage debt owing to the Commonwealth Bank of Australia secured by mortgage over the real property to the same extent that she has been in the six months preceding these Orders, indemnifying the husband in relation to such liability;
(iii)Pay Council rates owing in respect to the real property as and when they fall due, indemnifying the husband in relation to such liability; and
(iv)Pay water and utility charges owing in respect to the real property as and when they fall due, indemnifying the husband in relation to such liability.
That upon settlement of the sale of the real property the net proceeds of sale, after discharge of the Commonwealth Bank of Australia’s mortgage number …55 and the payment of the costs of sale, shall be distributed to the wife and to the husband in accordance with the following formula:
To the Wife - $X where X = ((the net proceeds of sale of the real property + $1,317,539.55) x 67.5 per cent) - $836.069.55; and
To the Husband – the balance.
That each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to these orders and, in the event of a default continuing for in excess of 7 days, a Registrar of this Court is appointed to sign such documents and do such acts as are necessary in lieu of the defaulting party.
That the transferee spouse or the spouse receiving the benefit of a transaction pursuant to these orders prepare the documentation necessary to give effect to the provisions of these orders at their cost and further be responsible for the payment of any registration fees in relation to the transfer of the property to their name provided however that, where a party is required to release a mortgage or other liability pursuant to the terms of these orders, that party shall be responsible for the preparation of any documentation necessary to secure the release, refinance or repayment of that liability, as the case may be.
That any duty levied pursuant to the Duties Act 2001 (Qld) (or equivalent legislation of other States and Territories of the Commonwealth of Australia), payable on any transaction arising from these Orders or any document executed pursuant to these Orders be paid by the transferee spouse or the spouse receiving the benefit of same.
That the parties promptly comply with the requirements of the Duties Act 2001 (or equivalent legislation of other States and territories of the Commonwealth of Australia) and associated legislation and all requisitions issued by the Office of State Revenue, Department of Natural Resources and Mining, Queensland Transport and any other government department in relation to any document executed or transaction pursuant to or putting into effect the terms and conditions of this Order. In default of either of the parties hereto complying with any requisition so issued within fourteen (14) days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the said outstanding requisitions and recover from the other party in default the costs and outlays incurred in complying with any of the said requisitions such costs to be calculated in accordance with the Family Law Rules.

Spousal Maintenance

That the wife’s application for periodic spousal maintenance is dismissed.
That the interim spousal maintenance order of Senior Registrar Spink of 1 July 2016 is discharged from the date of settlement of the sale of the real property.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cunningham & Cunningham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10161 of 2015

Mr Cunningham

Applicant

And

Ms Cunningham

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

The child D is nine years of age. His little sister, B, is seven years of age. They are at the centre of a serious dispute between their parents about the parenting arrangements that should apply to them. This dispute has existed since soon after the parents separated in late May 2015 and it has been before this Court since around that time as well.
Central to this parenting dispute is the mother’s expressed belief that the father sexually abused B, and possibly also D, over time in the years leading up to the parental separation. The mother asks the Court to make parenting orders that the children live with her, that confer sole parental responsibility for them upon her, and that they not spend any time with the father from now on.
For his part, the father denies that he has sexually abused either child and asserts that the mother does not genuinely believe the allegations she has made. He expresses the belief that the mother has made up and maintained the allegations against him with malicious and wilful intent to secure sole care of the children and to maximise her share of the property division that is now also to be determined in these same proceedings. Initially, he had also proffered the view that the mother’s allegations against him could be attributable to poor mental health of the mother, but he told the Court after the trial had commenced that he no longer held to that position, having considered the independent expert psychiatric opinion adduced into evidence for the trial.
In absolute contrast to the position of the mother, based on his expressed belief that the mother’s position was maliciously false and amounted to emotional abuse of the children, the father asks the Court to make parenting orders that place both children in his sole care, confer sole parental responsibility for them on him, and place significant restrictions on the time that they spend with the mother. Clearly, the incredibly polarised nature of the dispute could not be any starker.
With each party presenting to the Court with these contrasting positions, the matter entered the Court’s Magellan process. Interim parenting orders were made with the children’s time with their father being restricted and conditioned upon the presence of independent supervisors. An Independent Children’s Lawyer (“the ICL”) was appointed and she commissioned an independent family report from a consultant social worker who had significant experience in family disputes, including as a family consultant in the employ of this Court. The ICL also commissioned a report from a consultant psychiatrist. He saw and interviewed both parents and read much material that he had been provided with by the ICL before providing his report as to his assessment of the parents.
The matter was originally listed to be heard by me over ten days commencing on 9 January 2017. The father, who is the applicant, was represented by solicitors and Queen’s Counsel. The mother, the respondent, was represented by solicitors and experienced junior counsel. The ICL was also represented by experienced junior counsel.
On the morning of the fifth day of the trial, after the cross-examination of the applicant father had concluded, Queen’s Counsel appearing for the father suddenly withdrew from the proceedings. The Court was not informed of the reason for the withdrawal. The solicitors for the father then sought and obtained an adjournment of the part-heard trial to enable them to obtain transcript and confer with alternate counsel. The further hearing of the trial was adjourned to the first available dates of 17 - 21 and 26 July 2017 with the expectation of it concluding over those six days.
Prior to that scheduled re-commencement of the part-heard trial, the solicitors for the applicant father filed a Notice of Ceasing to Act for the father. He did not retain other legal representation and appeared unrepresented at the re-commencement of the trial. As such, the father had to cross-examine the mother himself. Though he is a capable, intelligent man, his inexperience with legal trial advocacy naturally made this a difficult task for him. The cross-examination of the mother went for several days and took far longer than it had originally been expected to take when the father was represented by Queen’s Counsel. Consequently, the trial was not completed in those additional six days. Unfortunately, it was again adjourned part-heard to the first available dates. Those were 29 - 31 January and 1 - 6 February 2018. All other dates in between were already allocated to hearings.

The part-heard trial re-commenced and concluded on those dates, just over a year after it had started. The Court saw both the father and the mother extensively cross-examined and also saw the father conduct thirteen days of the trial on his own behalf. A serving member of the Queensland Police Service’s Child Protection and Investigation Unit, as well as a former member (no longer with the QPS) gave evidence and they were both cross-examined. A Child Protection Officer of the Department responsible for child protection also gave evidence and was cross-examined. The family report writer gave evidence, as did the consultant psychiatrist. They were both extensively cross-examined. A consultant paediatrician from the C Hospital, who had conducted a colposcopic examination of B shortly after the allegations arose also gave evidence and was cross-examined. A psychologist who had seen the child and the parents in the second half of 2016 gave evidence and the manager of the commercial organisation responsible for providing the supervision of the children’s time spent with the father since that commenced in 2015 also gave evidence. They, too, were both cross-examined extensively. The maternal grandmother also gave evidence and was cross-examined. The father’s sister gave evidence and was cross-examined and some other witnesses gave affidavit evidence that was adduced in the matter but were not cross-examined. Some 87 exhibits were adduced into evidence, including a large bundle of documents copied by the ICL from documents produced to the Court under subpoena from a variety of sources, including the QPS and the Department responsible for child protection.
At the conclusion of the trial, the Court heard oral submissions from the parties over a full day.

The Principles by which a Parenting Case such as this is to be determined

In the seven years I have been a Judge of this Court, I have had to decide many parenting cases in which the central issue has been the determination of a highly disputed allegation of sexual abuse of a young female child made by the mother against the father. These are always difficult cases. I have said the following things in judgments delivered in many of those cases. Of course, they bear repeating in these reasons.
The High Court has determined that parenting orders proceedings under the Family Law Act 1975 (Cth) (“the Act”) are not about parents enforcing a parental right to have a child live with or spend time with them. In parenting orders cases, the High Court has said, this Court has a duty to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. The High Court observed that in doing that this Court will:
…give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used in the legislation at the time of the High Court’s judgment in this case], but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.[1]
[1] M v M (1988) 166 CLR 69, 76.
In that same case, the High Court also relevantly observed that:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2] (my emphasis)
[2] Ibid.
The Judges of the High Court also said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3] (my emphasis)
[3] Ibid.
The High Court Judges’ reference in that case to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task, in determining the proper parenting orders to make in respect of any child, is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making the parenting orders the Court thinks “proper” (s 65D(1)).
As is well known, and as I have already alluded to, this Court hears a large number of parenting cases involving allegations of sexual abuse each year. Nevertheless, in deciding each individual such case, it remains important to reflect upon the seriousness of the central factual issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was over twelve years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129. Nevertheless, I hasten to observe that the Judges of the High Court went on in their judgment in M v M to expressly say (at pp 76-77) the following:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[4]
[4] What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:
s 140(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)    Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)                the nature of the cause of action or defence; and
(b)                the nature of the subject matter of the proceeding; and
(c)                the gravity of the matters alleged.
Relevantly, their Honours continued (at page 77-78) and said:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
…
the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(my emphasis)
This process of determining and weighing risk has become known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 who said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S … do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
At paragraph 105 of that judgment, the Judges of the Full Court, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
Murphy J also discussed this question of risk assessment in his judgment in Harridge & Harridge [2010] FamCA 445. Having referred to N and S and The Separate Representative, his Honour adopted the following list of questions in relation to risk assessment:[5]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[5] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Respectfully, I also consider these useful questions to consider in the determination of this matter.
Ultimately though, I am satisfied the proper parenting orders to be made in this case are to be determined by a process of considering all of the evidence against the “primary” and “additional” considerations mandated by s 60CC of the Act, with the most attention being paid to the determination of whether the children, B and her brother, D, will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in their father’s care and whether, if there would be such an unacceptable risk, it could be ameliorated by conditions such as supervision being imposed on any time they spend with their father.
Of course, I acknowledge that the statutory pathway set out in Part VII of the Act for determining the proper parenting orders to make must also be followed

The Background

The mother is 46 years of age. She works part-time on a contractual basis for about thirty hours a week. She and the children have been living in the former family home since the parties separated in late May 2015. Her place of employment is not far from that home. The children go to school at their local Primary School.
The father is 46 years of age. He has worked for approximately 22 years.
This former couple commenced their relationship in May 1994 when they met during their university studies. They were married in 1996 and after twenty-one years of being together as a couple their relationship as a couple truly ended in late May 2015, when the father, at the mother’s request, moved out of their shared family home and took up residence elsewhere. Their marriage has since been legally dissolved.
In or around 2003 whilst the mother was working she suffered a seriously debilitating injury to her lower back. Consequently, her career ambitions were limited and she has suffered years of health difficulties, endured spinal surgery and also experienced severe depression. She received treatment over the years, including psychiatric treatment. She made a worker’s compensation claim which was ultimately successful and she received substantial monetary compensation. Nevertheless, these circumstances took a significant emotional and professional toll on her.

The lack of intimacy in their relationship

The father and the mother agreed that they had not engaged in sexual intimacy with each other for about five years preceding the end of their relationship. Indeed, the evidence supports a finding that they slept in separate bedrooms in their family home for about six years, only actually sharing a bed when they travelled away from home.
It was during her pregnancy with their eldest child, D, that the mother asked the father if he would start sleeping separately from her. She asserted that her pregnancy related nausea was exacerbated by her sleep being interrupted by his snoring and also by him going to bed smelling excessively of alcohol. He began to sleep in a spare room on the ground floor of their home. I did not understand him to dispute the mother’s assertions about this, save, by inference, the assertion that he would go to bed smelling excessively of alcohol. Their respective alcohol use or abuse is a matter of significant contention in the case and I shall return to that subject later in these reasons.
At some point after B was born, she and her brother, D, began sleeping together in the same bedroom in the upstairs part of the home, near the bedroom occupied by the mother. However, when they were a little older the parents agreed that they should each have their own room and they were moved into separate bedrooms in the downstairs part of the house near the room occupied by the father as his bedroom. This sleeping configuration endured for a couple of years until the father left the home on Wednesday, 27 May 2015.
Their life in Brisbane had been interrupted soon after B was born by a sojourn of approximately six or seven months in Europe. The couple moved there for that time and they took the children with them.
There is no dispute between the parents that their marital relationship was experiencing some difficulties in the few years preceding their separation in May 2015, though there is disagreement as to the extent of the difficulties, particularly in the period just leading up to the separation. There is evidence that the mother reported to a doctor she was seeing in September 2013 that, at that time, her marriage to the father was troubled. That doctor noted in her own records that the marriage was “on the brink of divorce”, apparently having been told something like that by the mother.
There is no dispute that in the years before their separation, the mother had proposed the father join her in receiving marriage counselling but that he had refused and that she had received it for herself in any event.
The father asserted in evidence that they were effectively living separate and apart under the same roof for years before the separation. Notwithstanding that assertion by him, the absence of sexual intimacy between them for several years and the fact that they did not sleep in the same bedroom in their home for even more years, other evidence persuades me that, despite clearly experiencing troubles in their relationship, they still considered themselves a couple, carried on life as such and presented to their families and the world as a couple. I am satisfied that they both did not truly regard their relationship of marriage as over until after the events of May 2015.

A Proposed Move to Europe

Whatever the exact state of their marital relationship was at the time, in the early months of 2015, the father was actively working towards securing a position in Europe as the contractual term of his current position was drawing to a close. The evidence satisfies me that the father actually very much wanted to secure the position and move the family of four to Europe. It also satisfies me that the mother was supportive of that idea, provided her own career expectations could be met. She was hoping to be able to continue working over there as she was happy with the part-time work she was doing in Brisbane. These are, in my judgment, hardly the actions of a couple who considered their relationship as a couple to be over.
Evidence that was adduced satisfies me that the mother was making active and positive efforts to find out what it would take for her to be able work in Europe so as to be able to support the whole family’s move. The father was also making efforts to help the mother in that respect. The mother also made enquiries of the local Brisbane school that D attended to determine if the children’s enrolments at that school could be maintained during the period the family might be away, however long that might end up being.
The evidence shows that the father advised those he was negotiating with in Europe by email sent to them on 5 May 2015, that he was “unable to accept this very generous offer”, an outcome he principally attributed to the difficulties the mother faced in being able work in Europe and the “relatively low earnings …” there. I accept the mother and the father had reached that decision together.
However, within a few days of having sent that email, the father received further emails acknowledging his decision but inviting him and the mother to consider other employment options for the mother in Europe so that he might be able to reconsider his decision not to accept the position. The father responded positively to that approach and told the Europeans he welcomed “re-opening the discussions”.
On either Friday or Saturday night, 8 or 9 May, the mother and the father went out to dinner together to a restaurant for which the mother had a voucher that had been gifted to her by the father’s sister. After dinner, they went to see an opera performance. They did not watch the entire performance, agreeing to leave after the first act. The father said in oral evidence that was because they were not enjoying it.
On Mother’s Day, Sunday, 10 May, the father and the children gave the mother a card in which the father thanked the mother for being “such a great mum to our kids, The Best in the world. We love you with all our hearts and appreciate what you do for us every day All my love [Mr Cunningham] xxx”.

The Europeans then put a couple of possible ideas about alternative employment for the mother to the father. By email on Friday, 15 May 2015, the father informed the Europeans that he and the mother would discuss the new circumstances “over the weekend” and let the Europeans know of their position as soon as they could.
By email, sent on Tuesday, 19 May, the father invited his European contact to talk with him by phone later in the week or early the next week. The father asserts a decision had been made on that date (19 May) to again inform the Europeans that he could not accept the position. The mother does not agree. She maintains the issue of acceptance or rejection still remained open at that point. That e-mail of 19 May does not confirm the situation one way or the other.
On Wednesday night, 20 May 2015, the father was having a telephone conversation with his sister who lives in Brisbane in which the subject of the family’s proposed move to Europe was discussed. The mother, who had gone to bed already, said she was woken by the noise of a glass breaking in the kitchen and overheard some of the father’s end of the conversation through an open window in the en-suite bathroom. I am satisfied that the father was unhappy that he had not yet been able to finalise satisfactory arrangements and firmly accept the appointment and that he was discussing this fact with his sister and telling her what he might be able to do in order to secure the mother’s agreement for the family to still be able to go. It follows that I am not satisfied that a firm decision to again inform the Europeans of his non-acceptance of the position had been made on the 19 May.
I am satisfied that when the father finished the long conversation with his sister the mother came out and spoke to him about what she had heard. I am satisfied that she let him know that she was not happy having heard things she had heard him say and that she considered she was doing all she could to make the move to Europe come off.
The two of them disagree about the level of argument that arose. The father asserts that the mother was very angry and that an intense argument followed. He asserts that the intense argument was re-ignited by the mother the next morning, Thursday, 21 May 2015. The mother does not agree with his assertions and denies that they argued intensely, though admitting she told him of her unhappiness at hearing his comments and remarks to his sister on the night after hearing the call. She particularly denies arguing the next morning though.
Whilst I am satisfied that the mother had some unhappy words with the father after hearing his end of the conversation with his sister, I do not accept the father’s assertions that they argued intensely that night and again the next morning. I am satisfied that the father had not yet given up hope of being able to accept the appointment in Europe at that time. I do not accept that the final decision had already been taken not to go at the time the father was speaking with his sister. The father’s sister certainly did not depose to having been told that by her brother in that phone conversation with him. I consider she would have, had that been the case. I do not accept that the father would have argued as intensely with the mother that night and the next morning as he now asserts he did, if he was still seriously hoping to be able to secure her agreement to the family’s move to Europe, as I consider he was at that time.
The father had the mother read out during her oral evidence another email that he sent to his European contact on the morning of Thursday, 21 May. It was apparently written in response to one from that contact seeking a phone conference later that same day. The father informed his contact that he was unable to make himself available that night but would be available the next day, Friday, 22 May, and would keep his telephone by his side to be able to take the call. He still had not communicated a firm inability to accept the offer of the position in this second, extended set of negotiations, before that phone call took place.

The Emergence of the Allegations of Sexual Abuse

Against the factual backdrop just outlined, on the evening of Thursday, 21 May 2015, the father attended the primary school the boy, D, was attending at the time, for a parental Information Technology evening. The mother stayed at home, caring for the two young children. According to her evidence, she gave the children pizza for dinner. It is agreed that the children usually sat at a small table in the lounge room to eat their dinner. The mother’s evidence is that this evening, in the absence of the father, B’s behaviour was different to what it would normally be.
The mother’s evidence is that B was “very quiet and not eating her dinner” and that B asked her if she could sit beside her on the lounge. After B sat next to her, B said words that the mother describes as “to the effect of” the following:
Mum, I need to tell you something. My dad keeps coming into my bedroom every each night. He lies in my bed.
The mother said that she asked B the question “every night, or just sometimes?” and the child responded:
Every each night. He stays for a long time. He gives me cuddles when I’m asleep.
The mother said that she asked B “how do you know he’s giving you cuddles if you’re asleep?” to which the child responded:
Because I can feel him, holding me here.
The mother said the child then used her own hands to indicate around her chest and upper arms. The mother said that having regard to the lay out of the house and the proximity of the father’s bedroom to the child’s bedroom, she was not particularly surprised by what the child said up to that point in time.
The mother said the child continued to talk, though. She said that B said:
I feel my pants and pull ups come off. They go down like this.
The mother said that B again used her hands to gesture her pull-up pants going down her thighs and legs, down on to her feet. The mother said, thinking that was “odd”, she asked B a question like “why do they do that?” to which she said that B responded:
I don’t know. Sometimes I wake up and go down under the sheets and put them back on. Sometimes Dad wakes me up to put them on.
The mother said that she recalled B also saying:
He sometimes wakes me up in the morning to put them back on. He goes in the shower. He tells me to stay downstairs. Then we come upstairs.
The mother said these statements concerned her. She said that she started to worry about some earlier events that had occurred (which events I shall return to later in these reasons) and the fact that “at the time [the father] was drinking heavily”. She said that she did not know what to do as she did not really understand what was going on. She said that she considered raising it with the father but thought “he would get upset” and that it would put B “in a difficult position”.
Although the mother does not refer to it in her trial affidavit at this point in the chronology, under cross-examination by the father, she gave evidence that her suspicion of what might have happened between B and the father, generated by the things B said to her that Thursday night, 21 May, contributed to her concluding that she and the children would not travel to Europe.
Under cross-examination at the trial, the mother said that B had come upstairs on the morning of Friday, 22 May and in reply to her question as to whether B had had a good sleep had said she had not as her father had come into her room. Nothing more was said in evidence about that.
Under cross-examination, the mother asserted that the final decision not to go to Europe was settled on the evening of Friday, 22 May. She said that the father came to her before the phone call with his contact and asked “what are you doing? I need to give him an answer” to which she said she responded “I can’t go”.
I am satisfied that the father had a conversation with a counterpart in Europe on Friday, 22 May during which he informed the contact of the final decision not to take up the position. That conversation took place on the Friday evening Brisbane time, such that it was Friday morning in Europe.
There is evidence that was adduced of the father’s telephone records showing a call to Europe of six minutes duration on 22 May 2015 (and it is the last call to Europe appearing on those records that show other international calls over the following several months). There is another e-mail on Tuesday, 26 May 2015, in which the father tells another counterpart there that he is “sorry that [he] was unable to get this “across the line” and take up the very attractive offer of employment.”
On the balance of probabilities, I consider the six minute call on Friday, 22 May to be the communication in which the father informed the Europeans that he would not be taking up the position. I accept that this followed the mother telling the father on Friday, 22 May that she no longer was prepared to make the move to Europe.
The mother’s evidence is that at the end of her shift at work that same day, Friday, 22 May, she spoke with one of her colleagues seeking her advice on what to do about the things that B had said to her the night before. The mother said that her colleague agreed it was a difficult situation and that she (the mother) needed to know more about what was going on.
The colleague of the mother swore an affidavit filed by the mother in the proceedings. The father elected not to cross-examine her. Of the conversation with the mother on Friday, 22 May 2015, she said that whilst she could not recall the exact comments from the mother, the mother had expressed concerns about the father sleeping part of the night in B’s bed downstairs in their house and that B’s comments had led the mother to be concerned that there could have been some “inappropriate sexual contact between [the father] and B”. The colleague said in her evidence:
As there was no real evidence, [the mother] elected to monitor the situation over the following weekend.
The evidence supports, in my judgment, a finding that things were tense between the father and the mother over the weekend of 23 and 24 May. The mother took the two children to a show of the children’s art at B’s child care centre on one of the days of the weekend. She was accompanied by her mother, the maternal grandmother. The father elected to stay at home. The family was going through the process of having a swimming pool built into the ground at their Brisbane home at this time also. The father decided to do some painting that had to be done around this work.
The mother said in her affidavit evidence that she also recalled B having said in the conversation on Thursday evening, 21 May, in answer to a question from her “does dad have pyjamas on?” that he does. The mother said this gave her some hope that there was nothing going on. Nevertheless, the mother said she was determined she needed to find out more about what might be going on. She said in her affidavit that in the nights following the conversation with the child – Thursday 21, Friday 22, Saturday 23 and Sunday 24 May – that she left her bedroom door open during the night and got up several times during the night and went downstairs to check on B. She gave no evidence about the number of times she went downstairs and checked on B on those nights or of observing or hearing anything that concerned her on any of those nights. I note again here, her evidence of B telling her on Friday morning that her father came into her room during the night before. In addition, her oral evidence under cross-examination was that B told her again on the morning of Monday, 25 May that she did not sleep well as her father had again come into her room during the night. If the child is reported accurately and was telling the truth, the mother apparently missed finding the father in B’s room when she went down and checked on those two nights and also failed to hear him go into her room during the night when she was listening out for such things.
The mother said that she determined to install some form of monitoring device, such as a camera or a recorder or even a transmitter like a baby monitor, in B’s bedroom to help her try to work out what was going on. She said she searched the internet for something she considered suitable. On Monday, 25 May, she went to a retail store and she purchased a noise activated recording device that she intended to put in the child’s room that night.
During that day, Monday, 25 May, the father caused a bunch of flowers to be delivered to the mother. I consider that was probably a gesture of kindness and reconciliation having regard to the tension being experienced in their relationship over the previous days that he must have felt some responsibility for. The parties each said it was not, but I think it probably was.
The mother’s evidence is that on Monday evening, 25 May, when she and the father were putting the children to bed, B complained to her that she had a sore bottom. The mother said the complaint was made to her alone and not heard by the father. The mother said she had the child show her, whilst the father was not with them, where it was sore and she noticed the child had a red rash around her anal area that continued through the perineum towards the child’s vagina. The mother said:
It did not look like nappy rash or excoriation when a child has diarrhoea or from urine. It did not look like thrush. B’s vulva and an anal skin tag also appeared to be swollen. B had never had anything like this before.
The mother said that she took a photograph of the child’s anal-genital region showing the rash. She said that she felt overwhelmed and unsure of what to do. She said that she could not think straight and did not know what to make of it. She does not assert that she discussed it any further with the child. She said that she set the recording device in the child’s room whilst the child was in the toilet. She said that she then texted her work colleague with whom she had spoken on the Friday before, describing what she had just seen and asking if she could send her a copy of the picture she had just taken for her to look at and consider. She said that the colleague gave her consent for her to send the picture and after she looked at it, advised her to take the child to her paediatrician the next morning.
The affidavit evidence of the mother’s colleague confirms this happened as the mother asserts and that the decision was ultimately taken for the mother to take the child to see her paediatrician the next morning.
The mother said that by this time on the Monday night, the father had fallen asleep. She said that he had been drinking since the afternoon. The mother said she thought about leaving the home with the children but decided to stay awake that night and to seek advice in the morning. She said that she did stay awake that night and that she checked B frequently during the night. She said that she set an alarm on her phone to go off at frequent intervals during the night in case she fell asleep. She did not give evidence about whether she did fall asleep at all or as to how many times she went downstairs during the night. She did not give any evidence of seeing or hearing anything more that disturbed her during that night. She did give evidence that she placed the voice activated recorder on the top of the wardrobe in B’s bedroom whilst B went to the toilet, but she said that she had not had time to read the instructions and had not activated it correctly and, consequently, it did not record anything that night.
The mother said that on the morning of Tuesday, 26 May, she checked B’s bottom again. She said that she noticed she still had the rash but that it seemed a little better. She also said that she noticed a “green discharge around her vulva and in her pull up pants.” The mother said that she was very concerned about this because B had never had any discharge before. She said that she took a photograph of the child’s vaginal area and the green discharge.
The mother said that she called in sick to work and called the paediatrician, Dr L, by phone. She said she told her of B’s statements to her of the week before and of the rash and discharge. She said the doctor told her she must take the child to the C Hospital and also speak to the police. She said Dr L made it clear to her that if she did not take the child to the hospital that Dr L herself would report the matter to the Department responsible for child safety.
Dr L did not give evidence in the trial, but a page of her handwritten notes taken that day she spoke with the mother by telephone was adduced into evidence by the ICL. Dr L’s notes record that she spoke with the mother on Tuesday, 26 May 2015. They record that the mother reported the child told the mother on Thursday, 21 May that the father comes into her room at night and takes off her pull ups and pants and that he wakes her up to put them back on. They record the mother telling her of “current perianal redness” and of “a green discharge”. She recorded that she told the mother to go to C Hospital and that she (Dr L) would check with the hospital that the mother did actually present the child there. The notes record that Dr L satisfied herself later that the mother had actually presented the child at the hospital.
The mother’s evidence is that she presented at C Hospital with the child at around 9:00 am on that same day, accompanied by the maternal grandmother. They waited all morning and B was examined in the Emergency Department at around 2:00 pm. The mother said she was told to take the child to the Suburb M Police Station and to return the child on Thursday for a colposcopic examination. She said that as she was driving the child to the police station she received a phone call to return to C Hospital with the child for the examination that had been rescheduled to take place straight away.
The mother said that she took the child straight back to the hospital and she was given a general examination and a colposcopic examination. She said that she was then again told to take B to the Suburb M Police Station for an interview straight after that.
Adduced into evidence was a medical report signed by Dr N, the paediatrician who conducted the colposcopic examination that afternoon. Dr N was assisted by Dr P, a paediatric registrar. Dr N’s report states that the history was taken from the mother without the child being present and the child was not questioned about “the allegations”.
The history taken by Dr P from the mother is recorded. It refers firstly to the mother reporting the child telling her on Thursday, 21 May, that the father had been coming to sleep in her bed most nights, coming in late at night and waking in the morning and leaving. It refers to the child telling her mother that her father gave her cuddles and that he sometimes asked her to take off her pyjama bottoms and ‘pull ups’ after waking her up. It reports the mother quoting the child saying that her father did not take off his pyjama bottoms and that he never touched her private parts. It further reports the mother saying that she “kept an eye on B for the next few days”. It reports the mother having said that she stayed awake most nights (after that) to ensure that the father did not go into B’s room.
It reports that B complained of a sore bottom on Monday, 25 May and when the mother examined her perianal-genital region she found redness then and again the next morning (that same morning 26 May), along with a green discharge from her vulva. It is recorded that the mother reported there were no symptoms of pain on passing urine, blood in urine or urinary frequency or incontinence.
The history records the mother reporting that B had a urinary tract infection (a UTI) in February 2015 (that same year) and was, at the same time, treated for vaginal erythema with an antifungal cream. It reported that two years previously the child had episodes of erythema in her anal-genital area that eventually settled without treatment. It also reports that the child had been clingy in the last few months and had asked to wear pull ups to bed again even though she “continues to be dry at night”.

Adding the superannuation interests and the net value of the relevant property gives a total of approximately $1,944,000. After consideration and assessment of these various contributions of the parties made over the twenty one years of their cohabitation and the two and a half years since their separation, I would notionally divide that net figure of $1,944,000 on the basis of satisfaction that overall the contributions of the husband and the contributions of the wife across all spheres should be treated as equal. Equal division of that total sum is $972,020.

What of any further adjustment having regard to the remaining s 79(4) matters, including, in so far as they are relevant, the s 75(2) matters?

The husband is 46 years of age. He is still working and asserts that he earns around $300,000 per annum. Although, after opposition from counsel for the wife, leave was not granted to the husband to be able to rely upon the evidence he sought to adduce in the last tranche of the trial as to the additional income he is earning from the overseas appointment, the weekly salary he set out in his December 2017 Financial Statement purportedly included his overseas income in his estimated $300,000 per annum earnings.
In that same Financial Statement, he set his estimated consultancy income as nil. Interestingly, that is against the historical fact that he was earning around $60,000 gross per year from his consulting, over and above his main income. Indeed, in the 2014 financial year, he earned twice that amount from consulting, on top of his salary. The apparent change to nil was attributed by the husband to his entering into a new consulting venture with his new partner. She was employed in the health industry, earning $130,000 per annum and resigned that employment at the start of 2017 to begin consulting alongside the husband.
At the time the husband’s new partner gave oral evidence in this trial in the middle of 2017, she and the husband had already started doing consulting work together. She gave evidence that they had already jointly provided consulting services and that the advices given had been communicated under both her name and the husband’s name but that she had been the only one of the two of them who had billed the client for it, even though the husband’s name was ahead of hers on the work they provided the client.
I am satisfied that the reason the husband said he was no longer earning consulting income is that he is permitting his new partner to charge for the work that he is also involved in, effectively income splitting with her. This probably has a tax benefit for him that flows through to their relationship, as well as, potentially, impacting upon his child support assessment. I am satisfied that the husband is still likely to be earning at least around $60,000 per year from consulting over and above his main income or that he has the capacity to, at least. He gave no evidence to the contrary. However, I am also satisfied that he is likely to be shifting that income to his new partner through whatever entity they are using to operate that consultancy business. The husband even told the Court, quite unsurprisingly, that he hopes that they can increase the consulting income, so as to replace for the couple the $130,000 per annum income that his new partner gave up when she resigned her former employment.
I am also satisfied that the husband will be benefitting from the small economies of scale experienced by a couple who live together, sharing the expenses associated with day to day living.
The husband is in apparent good health, though I am satisfied that the fact that he smokes a packet of cigarettes per day and drinks as much alcohol as he does, will be having an adverse impact upon his health.
The wife is also 46 years of age. She still suffers, to a degree, from the residual effects of her 2003 back injury. Nevertheless, she still works part-time fitting that in around her parenting responsibilities. She earns, I accept, about $94,000 per annum gross. I am satisfied that she does not have the capacity to earn substantially more than that in the foreseeable future, though when the children reach adulthood and independence within the next ten or so years, she should be able to increase the hours that she works and thus increase her income, though limited to a degree by the residual effects of her back injuries as she ages.
There is, therefore, an income earning differential between the husband and the wife of at least around $266,000 per year.
Very significantly, in the context of these considerations, having regard to the parenting orders I intend to make, the wife can be expected to have the sole responsibility of caring for the children for the remainder of their childhoods, probably around another ten years, and that does not include any further years that they may remain in some degree of dependency upon her if they enter into tertiary studies, as so many young adults do. The wife can expect to receive child support from the husband as assessed. Currently, that is around $470 per week. That is unlikely, in my view, to meet half of all the actual costs of supporting these two children full-time on an ongoing basis. I also have regard to the stated intention of the husband and his new partner to have children. The birth of any new child of the husband’s will, having regard to my knowledge of the child support assessment process, more likely than not reduce the amount of child support the husband is obliged to pay to the wife for the two children, D and B.
The wife’s responsibilities to care for the children into the future will affect her income earning capacity and the amount of capital that she would otherwise be able to accumulate in those years. She will also have to find suitable alternative accommodation for herself and the children after the former family home is sold.
An equal division of the relevant net property and superannuation interests (taking the property at $1,075,000) would give each of them $972,000, of which around $633,500 would be superannuation if their superannuation interests were divided equally. That would give each of the parties approximately $339,000 in property in net terms. Whatever superannuation interests they are left with, neither will be able to access, under current superannuation law, until they turn 60 years of age.
10 per cent of $1,944,000 is $194,400. As I have already observed, the differential in the income or income earning capacity of the parties is at least around $266,000 per year. That is the equivalent of just under 14 per cent of the total divisible net property and superannuation interests. In this respect, I am reminded of the words of the Full Court in Clauson and Clauson (1995) FLC 92-595 at p 81,911:
It has long been recognized that in most cases the most valuable “asset” which a party can take out of the marriage is a substantial, reliable, income-earning capacity.
I am, after considering all of these matters as I am required to do, satisfied that justice and equity requires an adjustment to the notional equal division I have already arrived at after considering and assessing contributions. I consider that there should be a 17.5 per cent adjustment in favour of the wife. That would see her receiving 67.5 per cent of the total net property and superannuation interests of the parties. That would see the husband receiving 32.5 per cent of the total. Seen in context, that is a 35 per cent differential which, in dollar terms, is $680,414. At first glance that appears a large differential in dollar terms. However, as I calculate, it is equal to the difference in income the husband will earn in excess of the wife in just over two and a half years. I consider it an appropriate adjustment to make to effect justice and equity in this case.
67.5 per cent of $1,944,000 is $1,312,200.
The wife will retain the furniture and contents of the former family home at $15,620. She will retain cash in the bank at $1,697. She will retain the motor vehicle 1 at $39,000. She will retain her own superannuation at $142,427.07. She will have sole responsibility for the chattel mortgage of $41,799.52 and the credit card debt as it stood at separation at $33,875. That will result in her having net property and superannuation interests of $123,069.55. This figure is $1,189,130.45 short of what I have determined she shall receive – if the property was to sell for $1,075,000.
The husband sought the return of a few personal items, including a bottle of vintage wine. There was no discernible challenge or opposition to that from the wife. I will make orders that the wife deliver those items to the husband.
Given the income differential between the husband and the wife, the wife’s need to find alternative accommodation for herself and the children in the near future, the fact that the husband is already housed living with his new partner in her home, and the fact that the child support the wife receives will likely be reduced if the husband has more children with his new partner, I consider that the wife has a greater immediate need for cash rather than superannuation, than does the husband. However, that said, if I make a “super splitting” order against the husband’s H Super interest that effectively sees the wife receive 67.5 per cent of the total of their superannuation interests of $1,267,357.07, she would get a split of $713,038.95 of the husband’s H Super interest. Rounded down to $713,000, the wife would, if the net proceeds of sale of the former family home are around $600,000, still receive a share of the cash in the amount of $458,269.65, with the husband to receive $141,730.35. Of course, the higher the price that may be obtained for the property, the more cash each of the husband and wife will receive. I consider that comparative outcome appropriate in the circumstances, and, thus, will not change the 67.5-32.5 per cent division of the superannuation interests.
Accordingly, I will make a “super splitting” order against the husband’s interest in the H Super superannuation fund that results in the wife retaining around 67.5 per cent of the parties’ combined superannuation interests of $1,267,357.07. The wife already has superannuation of her own valued at $142,427.07, so that will give her a “split” of close to $713,000 of the husband’s H Super, which amount I will round the split off to.
I will make orders that then provide for the wife’s 67.5 per cent share of the total net property and superannuation interests that will include the net sale proceeds of the former family home to be made up by an appropriate adjustment out of the net sale proceeds when the property sells. In that way, the “super splitting” amount is fixed and certain and only the cash that each party is to receive from the sale proceeds of the former family home will remain a variable factor to be determined pursuant to a formula applied to the net sale proceeds, whatever they may be.
I have regard to the evidence the wife gave that she did not consider that she could easily sell the former family home if she and the husband had to communicate with each other about that and agree on all the usual matters that have to be attended to in selling a property. I accept that the nature of her feelings towards the husband, believing him to have sexually abused their daughter, would clearly detrimentally impact upon any communication, as well as her emotional wellbeing, if they were required to communicate to sell the property.
Given the orders I intend to make, I am satisfied that the wife will have every reason to act in a way that maximises the sale price that can be obtained for the former family home if she is solely responsible for its sale. I do not consider that she would or could act to the detriment or prejudice of the husband if she is made sole trustee for the sale of the property but her ultimate entitlement to receive cash from the proceeds of its sale is determined by the application of a formula to those net proceeds. I will make her sole trustee for its sale allowing her to determine how it is marketed and sold, and for how much, save that I will place a time limit on its sale by private treaty of three months and require her to give the husband 72 hours’ notice of her intention to sign a contract in that period as well as the details of the sale price and any special terms or conditions, thus allowing the husband time to make an application to this Court if he considers it necessary. I will not permit the wife to buy the property by private treaty in that time, but will give the husband the right to buy the property himself for a better price than the price the wife indicates she intends to accept in that time, if he is minded to. If no contract is in place at the end of three months, the sale of the property shall go to auction, with the wife, of course, as trustee for the sale of the property, having the sole right to set the reserve price but with each of the parties having the right to bid at the auction and to buy it for the highest bid, on the usual auction terms, if they wish.
I make the orders set out at the commencement of these written reasons being satisfied that they are, in all the circumstances, just and equitable.

The Wife’s Spousal Maintenance Application

The wife also applied for periodic spousal maintenance on a final basis. She sought $984 per week for a period of five years.
In her Financial Statement filed on 11 March 2016, the wife deposed to earning a gross salary of $1,812 per week ($94,224 per annum). She also deposes to receiving interim spousal maintenance and child support from the husband and family tax benefit. I do not consider those payments in determining this spousal maintenance application.
In the same Financial Statement, the wife sets out weekly personal expenditure that includes tax of $363, rates of $37, health insurance premiums of $46, medical indemnity insurance premiums of $70, car insurance premiums of $19, house and contents insurance premiums of $21, motor vehicle registration of $13, car finance repayments of $271, credit card repayments of $183 and a miscellany of other personal expenditure requirements totalling $953 per week. Those total $1,976. I will not include the expenditure she sets out in respect of the children. The child support the wife receives is to help her with that.
The wife said that she has not included minimum mortgage repayments of $589 per week or $145 per week that she “should be” contributing to superannuation.
If I do not include the minimum credit card repayment of $183 per week in the expenditure, the expenditure the wife asserted makes up her own personal expenditure requirements is $1,793. The credit card is, no doubt, used to purchase and pay for items already included in the list. It would be doubling up on the expenditure to include the credit card repayment in such circumstances. I also consider that some of the expenses the wife sets out in the list of miscellaneous expenditure totalling $953 could reasonably be reduced, though not by much, I accept.
The expenditure requirement then, is less than the $1,812 per week that she is earning from her personal exertion. The Orders I will make in respect of property adjustment, provide for the sale of the former family home, Once it is sold, the wife will not have the rates and the house insurance premiums, the gardening/lawn mowing, house repairs, the security and pest control expenses, the water/sewerage repairs, and the pool cleaning costs to pay.
If the property sells for the value ascribed to it in 2016, the wife will receive around $480,000 in cash from the sale proceeds. If it sells for more than that, as it could, given that the valuation is well over fifteen months old, she will receive even more than that amount. She could sell her motor vehicle, pay out the chattel mortgage, and purchase a more modest motor car if she chooses to. That would save her $271 per week in ongoing car financing straight away.
Of course, the wife will have to re-accommodate herself and the children. Whether she purchases another property in which to live or whether she decides to rent instead will be a matter for her to decide. I can make no findings on the evidence as to how much her reasonable weekly expenditure requirements in that respect will be. However, if she decides to rent, her personal expenditure will be different than what she set out and she will have access to the capital she gets in the form of the cash that she receives from the sale and any interest that it earns on investment. If she chooses to invest that capital into another property, it will be a matter for her to determine what property meets the needs of her and the children within a reasonable budget having regard to her capital and her income earning capacity.
As for her claim that she would like to be contributing to superannuation, I observe that the property settlement orders I will make will provide her immediately with $855,427 in superannuation. I consider that puts her in a much better position in terms of superannuation than she was in with only $142,427 in her superannuation fund, particularly when she was not asking to be given anything like that much superannuation in the settlement. Having regard to the matters she has raised about her back injury potentially impacting upon her future earning capacity, I consider the provision of that much superannuation for her at this stage of her life is appropriate.
The property settlement Orders I intend to make, divide up nearly $2,000,000 worth of net property and superannuation (and potentially more than that if the property sells for more than $1,075,000) as to 67.5 per cent in the wife’s favour, after I determined that the contributions of the husband and the wife considered pursuant to s 79(4) of the Act were equal. That is a 35 per cent differential in what the two parties receive from their property and superannuation, after a 17.5 per cent adjustment in favour of the wife reached after consideration of all the matters set out in s 75(2) of the Act.
The matters set out in s 75(2) are also the matters the Court is to consider in determining whether a party to a marriage is liable to maintain the other party if that other party is unable to support herself or himself adequately. In all the circumstances, but particularly having regard to the wife’s income and earning capacity, her personal expenditure needs and the property settlement that I am ordering, I am simply not persuaded that the wife is unable to support herself adequately or will not be able to support herself adequately over the next five years, without further support from the husband in the form of periodic spousal maintenance payments.
I will dismiss the wife’s application for spousal maintenance and will discharge the current interim spousal maintenance order as at the date of the settlement of the sale of the former family home. I consider it reasonable and appropriate that the husband continue making those payments until the time that the wife receives the money she will get upon the sale of the former family home. Doing that will ensure that the wife will be able to continue making the mortgage repayments at the same level as she has been in recent months. It is in the husband’s interests that such repayments continue until the house is sold, as it is in the wife’s interests.
I make all of the orders set out at the commencement of these reasons.

I certify that the preceding five hundred and thirty-five (535) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 June 2018.

Associate:

Date: 8 June 2018

[2018] FamCA 415

8 June 2018

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Procedural Fairness