DARRETT & DARRETT

[2013] FamCA 1135

FAMILY COURT OF AUSTRALIA

DARRETT & DARRETT [2013] FamCA 1135

FAMILY LAW – PROPERTY – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Whether just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of financial and non-financial contributions as at the date of the trial are assessed at 55 per cent to the husband and 45 per cent to the wife – Where an adjustment, pursuant to s 75(2), of 10 per cent in the wife’s favour is appropriate.

FAMILY LAW – CHILDREN – Best Interests – Where the mother sought an order for sole parental responsibility in relation to the children’s education and for the children to live primarily with her – Where the children are currently spending equal time with the parents – Whether it is in the best interests of the children to the continue the equal time arrangements – Where it is the view of the single expert that an equal time arrangement is contrary to the children’s best interests – Where the presumption for equal shared parental responsibility is not rebutted – Where the mother has not established that she should have sole responsibility for making decision concerning the children’s education – Where an order is made that the children live with the mother and spend substantial and significant time with the father – Where an order is made that the children spend time with the father in a regime increasing as the children grow.

Family Law Act 1975 (Cth)

MRR v GR (2010) 263 ALR 368
Stanford v Stanford [2012] HCA 52

APPLICANT: Ms Darrett

RESPONDENT: Mr Darrett

INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce

FILE NUMBER: SYC 3229 of 2012

DATE DELIVERED: 23 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 9, 10, 11 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Kydon Segal Lawyers

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Moylan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Morley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners Lawyers

Orders

PARENTING ORDERS

1. That all existing parenting orders in relation to the children

   K Darrett, born on … 2009 and

   Z Darrett born on … 2010

   (“the children”) are discharged.

2. That the parties have equal shared parental responsibility for the children.

3. That the children live with the mother.

4. That until Z commences school attendance the children spend time with the father:

   4.1      in Week One from 4:00 pm on Friday until 5:00 pm on Sunday, commencing on 10 January 2014, and

   4.2      In Week Two from 8:00 am until 5:00 pm on Wednesday commencing on 1 January 2014.

5. That once Z commences school attendance the children spend time with the father:

   5.1      each alternate week from the conclusion of school on Friday until the commencement of school on Monday, and

   5.2      each week from the conclusion of school on Wednesday until the conclusion of school on Thursday.

6. That once Z commences school attendance the children spend time with the father:

   6.1      for one week in each of the Terms 1, 2 and 3 school holidays at times agreed between the parents and failing agreement for the first half of such school holidays

   6.2      for two periods each of one week’s duration during January in each year, at times nominated by the father to the mother no later than 31 October in the preceding year, provided that such periods are at least seven days apart.

7. That once Z commences Year 3 at school the children spend time with the father for half of all school holidays, at times agreed between the parties and failing agreement for the first half of all school holidays in an even numbered year and for the second half of school holidays in an odd numbered year.

8. That the children spend time with the father on special occasions as follows:

   8.1      from 12:00 noon on 25 December until 4:00 pm on 27 December in 2013 and each alternate year thereafter

   8.2      from 9:00 am on 23 December until 12:00 noon on 25 December in 2014 and each alternate year thereafter

   8.3      on Fathers Day from 9:00 am until 5:00 pm if the children are not otherwise in the care of the father pursuant to these orders

   8.4      on each child’s birthday from the conclusion of school until 7:00 pm on a school day or from 2:00 pm until 7:00 pm on a non-school day if the children are not otherwise in the care of the father pursuant to these orders

   8.5      from the conclusion of school or 6:00 pm on Easter Thursday until 12:00 noon on Easter Saturday in 2014 and each alternate year thereafter and from 12:00 noon on Easter Saturday until the commencement of school on the following Tuesday in 2015 and each alternate year thereafter.

9. That the children spend time with the mother on special occasions as follows:

   9.1      from 9:00 am on 23 December until 12:00 noon on 25 December in 2013 and each alternate year thereafter

   9.2      from 12:00 noon on 25 December until 4:00pm on 27 December in 2014 and each alternate year thereafter

   9.3      on Mothers Day from 9:00 am until 5:00 pm if the children are not otherwise in the care of the mother pursuant to these orders

   9.4      on each child’s birthday from the conclusion of school until 7:00 pm on a school day or from 2:00 pm until 7:00 pm on a non-school day if the children are not otherwise in the care of the mother pursuant to these orders

   9.5      from 12:00 noon on Easter Saturday until the commencement of school on the following Tuesday in 2014 and each alternate year thereafter and from the conclusion of school or 6:00 pm on Easter Thursday until 12:00 noon on Easter Saturday in 2015 and each alternate year thereafter.

10. That the parties are at liberty to vary these orders at any time by agreement between them in writing.

11. That the mother facilitate daily communication for the children with the father by Skype and/or telephone at a time in the morning to be agreed or, in the absence of agreement, as nominated by the mother.

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

PROPERTY ORDERS

1. That the parties do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situation at and known as C Street, Suburb R, in the State of New South Wales and to distribute the net proceeds of sale as follows:

   1.1in payments of agent’s commission and expenses

   1.2in payment of legal costs and expenses incidental to such sale

   1.3in payment of all funds required to discharge the mortgage to the Commonwealth Bank

   1.4in payment of an amount equal to 53.7% of the balance to the wife

   1.5in payment of the balance to the husband.

2. That the parties do all things and execute all documents required to transfer to the wife the whole of the funds lodged in the Commonwealth Bank Offset Account.

3. That, otherwise, each of the parties is declared to be solely entitled to all items of property and superannuation benefits which are presently in his and her possession or control.

4. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3229 of 2012

Ms Darrett

Applicant

And

Mr Darrett

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr Darrett and Ms Darrett are in dispute as to parenting orders and settlement of property.  They have two children:

   K Darrett, born in 2009 (four)  and

   Z Darrett, born in 2010 (three).

   The child K was conceived using donor eggs, after the parties had attempted IVF unsuccessfully for several years.  The child Z was conceived naturally.  K was informed of her biological origins by the parents on 1 September 2013.

2. Pursuant to interim orders made by consent on 15 August 2012, the children currently spend equal time with each parent.  They live with the husband from 8:00 am on Monday until 8:00 am on Wednesday and from 8:00 am on Friday until 8:00 am on Monday in Week 1 and from 8:00 am on Wednesday until 8:00 am on Friday in Week 2.  They live with the wife at all other times.

3. The wife now seeks orders that she have sole parental responsibility only in relation to the children’s education and that they live with her.  She proposed that the children spend time with the husband from 8:00 am until 4:00 pm each Wednesday and every alternate weekend from 4:00 pm on Friday until 4:00 pm on Sunday until the end of 2017.  From the beginning of 2018 until 2020 they would spend time with the husband from 4:00 pm on Thursday until 9:00 am on Monday in each alternate week.  From the commencement of 2021 until the end of 2028 the children spend time with the husband each alternate week from 4:00 pm on Wednesday until 9:00 am on Monday.  The wife’s proposal made provision for the children to spend time with each parent on special occasions.  I observe that the orders sought by the wife would purportedly operate until K is 19 and Z 18 years of age.  

4. The husband sought orders which would continue the current arrangements for the care of the children.  They would thus spend seven nights per fortnight with each parent.

5. The Independent Children’s Lawyer (“the ICL”) proposed that the parties have equal shared parental responsibility and that the children live with the wife.  Until Z commences school, they would spend time with the husband from 4:00 pm on Friday until 5:00 pm on Sunday in Week 1 and from 8:00 am until 5:00 pm on Wednesday in Week 2.  Thereafter they would spend time with the husband each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and from the conclusion of school on Wednesday until the commencement of school on Thursday in every other week.  They would also spend time with the husband for one week in the Terms 1, 2 and 3 school holidays and two blocks each of one week during the Christmas vacation.  They would begin to spend time with the husband for half of all school holidays when the child Z commences Year 3.

6. As to property settlement, on the wife’s case, the net pool of assets and superannuation has a value of $1,249,877.  She sought a distribution of the net pool in her favour of 57.5 per cent.  On the husband’s case the net pool of assets and superannuation has a value of $1,203,270, of which he sought a distribution in his favour of 62.5 per cent.

Background

1. The husband was born in 1967 and is 46 years old.  The wife was born in 1976 and is thus aged 37 years.  The parties commenced a relationship in February 2000 and began to live together in January 2001 or March 2002, according to the wife and the husband respectively.  They married in 2002 and separated under one roof on 7 January 2012. 

2. In July 2000 the husband purchased a residential property at H Street, Suburb R, which he sold for a net profit of approximately $107,000 in July 2001.  Otherwise, his assets at the commencement of cohabitation consisted of about $770 in savings, a Hyundai motor vehicle and various shares to which he attributed a value of $17,077.  His only liability was a credit card debt of $207.  At the commencement of cohabitation the wife possessed no significant assets.

3. After the husband sold the H Street property the parties lived with the wife’s parents at their home in Suburb A on a rent-free basis for six or nine months.  In April 2002 they purchased the former matrimonial home at C Street, Suburb R.  The husband contributed the net proceeds of sale of the H Street property and the parties also utilised savings of approximately $23,000, which they had accrued while living rent-free with the wife’s parents.

4. At the commencement of cohabitation the husband was employed as an operations manager by a financial services provider and the wife worked as a management consultant.  In June 2002 the wife received a $13,000 redundancy payment which she deposited into the C Street property mortgage account.  In July 2004 the wife commenced work at the Commonwealth Bank.  Apart from two periods of maternity leave, she has remained continuously in the employment of that Bank. 

5. Between November 2005 and 2010 the husband’s employment consisted of a series of short-term contracts.  In 2007 he had a one-year contract for full-time employment with S Company.  Otherwise, he last held a full-time job in November 2005.  On 2 May 2009 the husband began to study for qualifications as a professional.  In cross-examination he agreed that there may well be serious obstacles to his completing that course, as he has failed to meet the requirements of the relevant statutory authority.

6. In approximately 2008 the parties purchased jointly a home unit at Suburb Y, as an investment.  The purchase price was $450,000, the whole of which came from a $470,000 advance from the Commonwealth Bank.

7. The parties carried out renovations to the investment property, at a total cost of approximately $30,000.  These funds came from joint savings or the mortgage offset account.

8. The husband managed the letting of the investment property.  He carried out tasks such as negotiations with prospective tenants, advertising of the property and conduct of proceedings in the Consumer Trader and Tenancy Tribunal when the parties decided to sell the property in 2009.

9. The parties sold the investment property in late 2009 for $570,000.  They deposited all net sale proceeds into the C Street property mortgage offset account.

10. The wife commenced maternity leave in March 2009, shortly before the birth of K, and returned to work on three days per week in December 2009.  She again commenced maternity leave in December 2010 and returned to part-time employment in October 2011. 

11. During the marriage the parties carried out renovations to the former matrimonial home.  In July 2009 the wife’s mother, Mrs B, made a gift of $5,000 to assist with the cost of these renovations. 

12. In May 2011 the child K commenced attending X Nursery for two days per week.  The child Z began to attend the same nursery on one day per week in November 2011.  The husband removed the children from their nursery without the wife’s consent in December 2011.

13. In November 2011 the wife informed the husband that she wished to end the marriage.  The parties separated under one roof on 7 January 2012 and the wife moved to the home of her mother on 8 June 2012.  In September 2012 she moved into a rented apartment in Suburb N.

14. After the separation, there was a series of unfortunate incidents when each of the parties acted unilaterally in relation to the children and involved police officers.  On 9 May 2012 the husband attempted to remove the children from the X Nursery, which resulted in the attendance of police officers. 

15. On 8 June 2012 the husband was served with the wife’s Initiating Application.  Thereafter she allowed him to see the children only under the supervision of a mutual friend until 30 June 2012.

16. On 1 July 2012 the husband spent unsupervised time with the children and failed to return them to the wife.  He refused to allow her to speak to the children by Skype that evening and instructed her to direct all future requests to spend time or communicate with the children to his legal representative.

17. On 2 July 2012 the wife attended the former matrimonial home to see the children.  The husband called police and alleged that the wife assaulted him.  The police declined to take any action against her.

18. On 6 July 2012 the husband returned the children to the wife, after she signed a written undertaking that she would deliver them to him on 8 July 2012.  She retained the children on 8 July 2012.

19. On 1 August 2012 the children were in the care of the maternal grandmother at her home in Suburb W.  The husband attended the maternal grandmother’s home with another man, one Mr L, and removed the children from her care.  In the husband’s own words “I grabbed [the children] and ran”.  He placed the children in Mr L’s car and drove off without placing them in proper restraints.  He took the children first to the North Coast of New South Wales and later the Sunshine Coast.  They next spent time with their mother after the consent interim orders of 15 August 2012, having had no face-to-face contact with her for fifteen days.

20. In August 2012 each of the parties received $30,000 from the mortgage offset account by way of interim property settlement.  They also authorised payment of $10,000 from that account to sustain mortgage repayments.

21. In September 2012 the child K commenced counselling with Dr M.  The wife consulted with Dr M, who invited the husband also to participate in these sessions.  Dr M wrote to the husband on 31 October 2012 and invited him to consult with her (exhibit 5).  She noted that she had previously contacted the husband on 31 July 2012 and 6 August 2012.  The husband elected to have no consultation with Dr M until February 2013.

22. The wife pays child support of $127 per week to the husband.  The husband made application for an assessment in March 2012, and thereafter each of the parties made various submissions to the Child Support Agency.

Approach To These Proceedings

Parenting

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and fourteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…

Property

1. In Stanford v Stanford [2012] HCA 52 the majority of the High Court of Australia held as follows:

   35. It will be recalled that s 79(2) provides that “[t]he 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”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

The Evidence and Witnesses

1. The applicant wife relied on the following affidavits:

   1.Ms Darrett (the mother) sworn on 30 May 2013

   2.Mrs B (the maternal grandmother) sworn on 2 August 2012

   3.Financial Statement of Ms Darrett sworn on 31 May 2013.

   Mrs B was not required for cross-examination.

   The respondent husband relied on the following affidavits:

   1.Mr Darrett (the father) sworn on 4 June 2013 and 5 September 2013

   2.Mr U (the father’s friend) sworn on 13 August 2012

   3.Financial Statement of Mr Darrett sworn on 18 June 2013.

   Mr U was unavailable for cross-examination.

2. I had the benefit of a report dated 20 June 2013 and oral evidence from the single expert, Ms D.  I would respectfully observe that Ms D’s evidence was cogent, clearly expressed and of very considerable assistance.

3. I also had the benefit of a report dated 15 March 2013 by Mr E, which was annexed to his affidavit sworn on 5 September 2013.  Mr E, a management consultant and organisational psychologist, address the capacity for employment of the husband.  He was not required for cross-examination.

Parenting Orders

Primary Considerations

1. The proposals of each parent and the ICL inherently imply a recognition that the children will benefit from a meaningful relationship with both their mother and father.  Historically, the children have spent substantial time in the care of each of their parents.  The single expert, Ms D, opined that “both [children] appear to have warm and positive relationships with each of their parents”.  Ms D held concerns, however, that the child K seemed to have a “somewhat anxious attachment style to both her mother and father”.  I refer below to the expert evidence as to the nature of the children’s relationship with each of their parents.

2. In my view there is no doubt that both parents love the children dearly and sincerely wish to provide the best in life for them.  I agree, however, with the submission on behalf of the mother to the effect that “she offers no criticism of the father’s love for the children or his desire to do his best for them, he just can’t implement it”. 

3. To her credit, in oral evidence the mother readily said that the father has much to offer the children.  She stated: 

   He has a whole lifetime of experiences to share with them.  He loves them and they love him.  He is a boy and I am a girl.  He plays very well with them.  He has a lot to contribute.

4. The father similarly offered in his oral evidence a positive view of the mother’s role in the lives of the children.  He said: 

   I have no concerns about [the mother’s] care of the children, her love for them and her ability to care for them. 

   That concession, however, was somewhat inconsistent with a concern he expressed to Ms D about the mother’s mental health.  She reported: 

   60.      He told me that he based this on the fact that he is concerned about [the mother’s] mental health diagnoses.  For example, he told me that when he was preparing legal papers he realised that [the mother] had attended Tresillian and that he was not aware that she was struggling with the care of [K].  He also told me that he was concerned about the prescription that [the mother] was given because he did some research and became aware that Seroquel is a medication that is used for individuals who suffer psychosis or thought disturbance.

   Ms D opined: 

   However in general terms it was impossible to determine whether he actually thought [the mother] had any mental health concerns that would impact on her parenting capacity.

   It might be noted that the father conceded in cross-examination that the mother never attended Tresillian.

5. The mother gave evidence of controlling, verbally abusive behaviour on the part of the father.  For example she deposed:

   18.      I was given a detailed scheduled of [K’s] feeding times and sleeping times by [the father] three days after [K’s] birth.  If I deviated from the schedule that he set it would result in [the father] becoming angry and yelling angrily at me.  When I was in hospital after [K’s] birth [the father] would arrive every afternoon and be prescriptive about what I was to do and how I was to do it using words to the following effect:

   How has she gone today?  How many wet nappies did she have – were they full?  Has she done a poo today?  How much milk has she had?  Do you think you have given her enough milk?  How do you know this.

6. The mother set out in her affidavit another example of the father’s controlling behaviour, which she claimed to have occurred when she and K were in hospital following the child’s birth.  She deposed that he insisted on removing K from the ward, contrary to her wishes and hospital policy.  The mother stated: 

   23.      I sent [the father] a text message and when he came back he relayed to me a conversation with the nurse to the following effect:

   The nurse said that it is against hospital policy to remove an admitted baby from the ward.  I told the nurse that [K] is my child.  I will do what I like.  I am entitled to take her outside if I want to.  I told her to call the police if she thinks she can stop me.  I want to talk to the obstetrician so she can tell me why a healthy baby should not be removed from the hospital much less the ward.  Then she said to me there is no medical reason, it is hospital policy as we cannot be liable for any injury that could occur.  You cannot take [K] out of the ward.  We will have to call the police.  Then I said to her “I will call the police and tell them that I am taking my child for a walk.”

7. The mother gave evidence of two incidents during which she alleged that the father subjected her to physical violence.  She claimed that in October 2010 the parties argued about a pot plant, resulting in the father locking her out of the house while she was holding K.  She claimed that the second incident resulted in her being locked with the children in their bedroom for approximately one hour.

8. In her affidavit the mother gave this account of the first incident:

   32.      I then saw [the father] throw the ceramic pot on the ground breaking it.  I told him to come and clean it up as he’d made the mess.  We exchanged heated words which I cannot recall.  In anger he threw a bucket of cold water over me while I was holding [K], which also wet her.  [K] appeared upset over this and started to scream and cry.  I attempted to go inside but [the father] stopped me from going into the house and locked the door so that I was outside the house with [K].  [K] and I were both very upset and crying and [K] was screaming.  I implored [the father] with words to the effect: “open the door so that I can bring [K] inside so that I can get her dry and calm.”  I was refused entry into the house.

   33.      After much yelling and many attempts by me to get inside, [the father] eventually opened the door with words to the effect, “I’ll let you in but only if you tell me why you can’t put the orchid back exactly as it is.”  I went inside with [K] and settled her and we continued our argument about the orchid with [K] watching from the next room.  As the argument heated up I said words to the effect “I can’t put it back exactly as it was.  I can put it back as close as I can get it but some moss fell out, so it won’t be exact.  I’ll fix it up.  Just let it go.  Stop being so petty.”  He then grabbed me around the neck with both hands and tried to strangle me.  I was very frightened and feared for the safety of myself, [K] and my unborn child.

9. In cross-examination by counsel for the ICL the father said of this incident:

   My hand did come into contact with her chest/throat.  I put my hand up to keep her away and she kept walking.  It was not strangulation.

   He did not seem to dispute the mother’s allegation that he threw water over her while she was holding K.  In my view, this incident reflects poorly on the father’s insight into the effects of his behaviour upon K.

10. The mother also gave evidence of an alleged incident in March/April 2012, when she and the children remained in their bedroom for approximately one hour with the father on the other side of the door.  Initially the mother suggested that she and the children were locked in the bedroom.  In cross-examination by counsel for the ICL, however, the mother said that the lock was on the inside of the door and she could have left the room at any time.

11. In cross-examination by counsel for the ICL the father described this incident in the following terms:

    I was probably sitting on the top step.  The children were distressed and would not go to sleep.  [The mother] was in there trying to soothe them and I wanted to help.

12. In my view, this incident reflects poorly on the mother’s insight into the effects of her behaviour on the children.  It appears that she allowed the conflict between the parties to escalate, in circumstances where she could have taken the children out of the bedroom at any time.

13. In her oral evidence the mother said that there were “no incidents of physical violence other than these two”.  After cross-examination of the mother by counsel for the ICL, I would be most reluctant to classify the incident where she and the children remained inside their bedroom as an occasion of physical violence.

14. As noted, the mother conceded that the incidents involving the pot plant and the children’s bedroom were the only occasions of violence between the parties.  I am inclined to accept her evidence that the father subjected her to controlling behaviour and instances of verbal abuse.  As appears below, however, both parties gave evidence to the effect that of recent times the conflict between them has abated and that they are able to engage in limited activities as a family with the children.  In these circumstances, I find that there is no need to protect the children from physical or psychological harm resulting from abuse, neglect or family violence.

Additional Considerations

1. The children K and Z are aged only four and three years respectively.  There was no suggestion that their views should play any role in the determination of the outcome of these proceedings. 

2. As noted the single expert, Ms D, was of the view that K may have an anxious attachment to each of her parents.  She considered that the circumstances which gave rise to this situation could well be as follows:

   85.      In my view [K] has had a fragile start to life for a number of reasons.  [The mother] reported that following her birth she had post-natal depression and although she tried to care for [K] physically that she was perhaps not emotionally available.  [K] also had an infancy and early childhood that was characterised by family conflict and emotional splitting of her parents.  In this way, she has perhaps not relied exclusively on either one of her parents in order to regulate her emotions.  As a consequence, and as corroborated by the reports of her wife and treating clinical psychologist, [K] has difficulty in regulating intense emotions, transitioning between households and coping with the change.

3. Ms D expressed the view that Z has “a more secure attachment to both of her parents”.  She reported:

   88.      With respect to [Z], she appeared to have a more secure attachment to both of her parents.  [Z] was seeking and proximal to her mother for physical reassurance during the play sessions.  She tended to look to her mother in order to regulate her emotions and to interact with a stranger (myself).  These behaviours indicate that a young toddler is using the attachment relationship as a source of comfort, and a safe haven by which to explore a new situation and to interact with an unfamiliar adult.  Similarly, when [Z] was observed with her father she tended to seek his physical proximity and physical comfort which she received…In any case, [Z] has the good fortune of having both parents who have been actively, consistently and reliably involved in her life.  However, like her sister, the early experiences of being removed from each of her parent’s care is likely to have had an adverse impact on her attachment relationship with each of them.  She does not have the requisite language or cognitive skills to understand time in any way so her absence from each of her parents is likely to be a significant area of concern and stress for her.

4. The father appears to have been reluctant to engage with the mother about selection of a school for K to attend when she commences her formal education in 2015.  On 7 December 2012 the Family Consultant Ms T, noted in her memorandum: 

   This CDC was listed because the parents agreed to research schools in the North Shore and [the father] was to research the real estate market and come prepared with options so that an interim agreement could be reached.  [The father] did not do this.

5. In her affidavit the mother deposed that she carried out research and submitted the names of three schools on the North Shore to the father.  On 5 December 2012 the father emailed a reply but he has since taken the school issue no further.  That matter remained unresolved as at the date of the trial.

6. The father alleged that the mother has attempted to marginalise him from the children’s lives by making unilateral decisions.  He maintained that she unilaterally arranged for K to attend pre-school on Monday instead of Thursday, as had been agreed in consent orders made on 1 March 2013.  He complained that the mother excludes him from decisions regarding medical treatment for the children.  He expressed concern that the mother gave K vitamin tablets without his consent.  He complained further that the children travelled to Melbourne with the mother without his prior agreement.

7. I am not satisfied that there is substance to any of these complaints of the father.  I did not understand why he should feel aggrieved by a change in pre-school days, which resulted in no reduction in his time with the children.  In my view, it is relevant that the mother has employment commitments and the father could easily have accommodated this change without complaint.

8. Ms D expressed concern about the father’s initial refusal to enrol the children in pre-school (paragraph 102).  He denied that he told her that his refusal stemmed from a desire “to spend as much time as possible with them”.  He conceded that he did say that he thought that “[The mother] was using pre-school as a pretext to cut me out”.  Ms D opined:  “I found that the father’s attitude was driven by his own needs rather than appropriately guided and developmentally considered views of the children’s needs.” I would respectfully agree with this observation.

9. I was taken to no evidence which would provide a reasonable basis for the father’s issue about medical treatment procured by the mother for the children.  I can see no genuine basis for concern that she gave them vitamin tablets or took them to routine medical consultation without first obtaining the father’s permission.  As to the trip to Melbourne, the children were in the care of the mother pursuant to the interim orders at the relevant time.  These complaints by the father seem to me to suggest a desire for control of the children on his part, rather than any attempt by the mother to marginalise him from their lives.

10. I have referred above to the mother’s retention of the children on 8 July 2012, despite having signed an undertaking that she would return them to the father.  She did so after he unilaterally retained the children on 1 July 2012 and instructed her to address any request that she see the children to his lawyer.  In cross-examination the mother said “I did it because he allowed them no contact at all with me.”  She said also “I regret breaking the undertaking” and agreed that her actions “destroyed whatever trust was left”. 

11. When asked about his retention of the children on 1 July 2012 the father offered the lame excuse “I kept them because I wanted them, I missed them”.  He conceded that he had no concerns for their safety on this occasion.  The father told Ms D that he was extremely upset about the mother’s Notice of Child Abuse when he retained the children on 1 July 2012.  As he conceded in cross-examination, however, that Notice was filed on 4 July 2012 which was three days after he kept the children.

12. It seems clear that the father was driven by his own emotional needs on 1 July 2012.  He gave the same explanation for his removal of the children from the care of the maternal grandmother on 1 August 2012.

13. The next unilateral act in relation to the children was the father’s removal of them from the care of the maternal grandmother on 1 August 2012.  He made no mention whatsoever of this incident in his primary trial affidavit of 4 June 2013.  In cross-examination by counsel for the ICL the father said “I would concede that I did not want to put in my trial affidavit material that would not reflect well on me”.  He also said, unconvincingly in my view, that he omitted this evidence from his affidavit in any attempt to “move on from the past”.  The father also conceded in cross-examination that he “tried to play it down with Ms [D]”. 

14. The maternal grandmother, Mrs B, gave this account of the incident in her affidavit:

    4.        On 1 August 2012 I was caring for the children while [the mother] was at work and we spent the day in Bowral visiting the farm of one of my friends.

    5.        At approximately 5:10pm I pulled into the driveway of my apartment block and parked my vehicle in the basement garage.

    6.        I took the children out of the car and [Z] began crying for her milk bottle which had fallen under the car seat.

    7.        I proceeded to kneel down and lean back into the car to retrieve the bottle from under the car seat.  As I lifted my head from the car I noticed that I could not hear any noise or chatter from the children and as I looked beside the car where I had left them I noticed that they were no longer there.  I walked around to the other side of the car and started calling out:  “Girls, girls, where are you?” and I did not hear a response from them.

    8.        I started running up and down the basement garage feeling frantic that I had lost them whilst yelling out their names: “[Z], [K], [Z], [K].  Where are you?”

    9.        I did not have any idea where they might have gone and did not have any idea at this point that the children had been taken.

    10.      As I ran out of the driveway I was yelling to whoever might hear me, words to the effect:  “Can anybody help me.  I’ve lost my grandchildren?”

    11.      I saw a man who is currently staying in the apartment block standing at the front entrance of the unit block.  I approached him as he called out to me and we had a conversation to the following effect:

    He said:“I think I can help you.  I saw a man run up the driveway with two girls under his arms.

    I said:            “Yes, that’s correct.”

    He said:         “He took them in a car.”

    I said:            “What colour car did he get into?”

    He said:“I think it was a White Holden.  I couldn’t get the number plate.  It was all happening too fast.  He was wearing black and he was a tall guy.

    I said:“Thank you very much.  That sounds like their father.  He’s abducted them.”

    He said:“If you need anything please give me a call.  My name is [Mr F] and my number is … 421.  I am happy to be a witness if you need me to.

1. The maternal grandmother deposed that she then contacted the mother and police, who attended the father’s residence and assured them that the children were safe.  The maternal grandmother then spoke to a member of the executive committee of her body corporate, who arranged for her to view CCTV footage of this incident.  An SD card of this footage was exhibited to the wife’s affidavit.

2. In her affidavit the maternal grandmother gave this account of what she saw on the CCTV film: 

   16.      When I looked at the CCTV footage I saw that camera footage was fixed on the street in front of the apartment, the driveway and the front entrance of the building.  I saw what appeared to be a White Holden slowing down across the road and then a man that appeared to be the Respondent running across the road and down the driveway and at the same time the white holden did a u-turn and pulled up outside the building and parked along the curb next to the driveway.  I then saw a man who appeared to look like the Respondent running up the driveway holding [K] upright in one arm, whilst she was sucking on a lollipop, and holding [Z] horizontally under the other arm.  I then saw a person opening the passenger side door from inside the vehicle and the man jumping into the passenger seat.  I then saw the car being driven away down the street.

3. Having omitted such a serious incident completely from his primary affidavit, the father gave this account in a subsequent document sworn on 5 September 2013.  He deposed: 

   8.        I have a friend named [Mr J] hereinafter referred to as “J”, who has a friend named [Mr S], hereinafter referred to as “S”.  In or about late July 2012 [S] was coming to Sydney to stay with [J] and his family and [J] invited me to meet [S].  I went to airport with [J] to collect [S].  This was the first time I had met [S].  At the airport I went with [S] to rent a a hire car for [S], as [S] lives in the Sunshine Coast.  I spoke to [S] about my concerns over the separation from my former wife and my specific concerns as I had not seen the children for some time.  I also had told [S] about the incident with [the maternal grandmother] [Mrs B], hereinafter referred to as “Mrs B”, when she had assaulted me on 8 May 2012 at [the] Childcare Centre, [Suburb R].

   9.        On 1 August 2012 [J] said to me words to the effect of:

   “I know you are struggling and going through a tough time at the moment, how about you come to … with [S] and I. I’ll get [S] to pick you up.”

   I agreed.

   10.At about 4pm on 1 August 2012 [S] picked me up from the former matrimonial home.  I asked [S] if we could make a detour by [Suburb W], as I wanted to drop off a parcel to [the children], which I intended to leave near the mailboxes of [Mrs B’s] unit, where [the children] were staying.  I previously sent parcels to the children, which I intended that they would open during my Skype call with them to get them engaged with me.  There had previously been some delay in the parcels getting to the children.

   11.When [S] and I left the former matrimonial home we drove down Philip Street towards South Dowling Street.  When we were waiting at the intersection to get onto South Dowling Street, I observed [Mrs B] driving north along South Dowling Street and I thought I saw [the children] in the back of her car.  I then said to [S] words to the effect of:

   “[S] they’re my daughters, my daughters are in that car.  Can we just follow that car?”

   12.There was so much traffic travelling north that I only saw [Mrs B’s] car once, prior to [S] and I arriving in [Suburb N].  When [S] and I arrived at [Suburb W], I saw that the garage door into the building car park was open.  I did not know what to do, as I did not know where [Mrs B’s] car was located.  I then saw [Mrs B’s] car pull into the drive way to the garage.  I said to [S] words to the effect of:

   “I’m going in.  I just want to see my kids”

   [S] replied words to the effect of:

   “Here, put this on.”

   [S] handed me a jacket and a beanie.  I did not take the parcel with me into the garage.  When I got into the garage, I could hear [Mrs B], [K] and [Z] talking.  Within the car park each unit has their own lock up garage.  At the time I did not feel comfortable asking [Mrs B], whether I could cuddle [the children] because I did not know how [Mrs B] would react when she saw me and I did not want to expose the children to an altercation between [Mrs B] and I.  I waited for a while then [the children] came out of the garage and they were just wandering around the car park.  I did not see [Mrs B], as she was in her individual garage.  I walked over to [the children] and said “hello”.  At that moment I decided to take [the children].  I grabbed [the children] and ran.

   I put [the children] in the front of the car with me.  We drove approximately 100-200 metres from [the Suburb W address] and at the next intersection we turned left and stopped the car and I secured [the children] into the child restraints.  I realised that I should not have driven off without the children being    properly restrained.  There were two or three child restraints in the car, as [J’s] children had previously been in in [S’s] hire car.

4. After removing the children from the maternal grandmother’s care, the father took them to the North Coast and then to the Gold Coast without the knowledge or consent of the mother.  I digress to observe that these actions make extraordinary the father’s complaint that the mother took the children to Melbourne without his consent, during a period when the interim orders provided for them to be in her care. 

5. Ms D asked the father about this incident and reported as follows: 

   59.      I asked [the father] in detail about his alleged removal of the children from the grandmother’s care.  [The father] was extremely difficult to question on this topic. He became extremely physically nervous and agitated, showed signs of sweating and physical nervousness.  I asked him if he wished to take a break or have a drink of water but he declined.  In general terms he refused to answer some of my questions and deferred answering questions directly, instead traversing to other topics.  I asked [the father] if he had read the mother’s account and the grandmother’s account of this incident.  He told me that he had read them but that he had “forgotten a lot of it”.  He told me that he had also re-read his own account of it and that this was an accurate record from his perspective of what happened.  I asked [the father] why there was another person accompanying him, and he told me that his friend “[S]” was driving him to the grandmother’s house because he was visiting from out of town and they planned to go out later socially for drinks and that he did not wish to drive.  I asked [the father] and he replied “he knew I was frazzled and he understood my situation”.  I asked [the father] if it was his car he was driving and he told me that it was a hire car.  I then asked him if the car had children’s car restraints/seats in it and he told me that it did not.  I then asked him if he then drove the children back to [Suburb R] with no car seats and he told me “I can’t remember”.  He later changed his mind and said “yes there were car seats, because I strapped them in the seats when we went around the corner”.  He then stopped answering questions and repeatedly said “this doesn’t look good for me”.  He told me “my lawyer says this doesn’t look good for me and I need to find the post receipt”.  He later told me that it was his friend [S’s] car.  I requestioned him about whether the car had car seats and specifically why the car had two children’s car seats if he had not planned to take the children.  He told me “I don’t remember”.  I asked him if perhaps had he planned to take the children and he told me “I can’t remember” and elaborated about his fractured state of mind at the time.  For example, when I asked him again if he had planned to take the children he told me that “I called the grandmother fifteen minutes after I had left”.  I asked [the father] what he thought the children might have been experiencing at that time and what he told them.  He told me that he told the children that they were going away and he could not recall whether they were upset but thought that “nothing stood out”.  He told me that the police arrived thirty minutes after he arrived back at the former matrimonial home and I asked [the father] if the children had been frightened about this experience to which he replied “I made it fun”.  [The father] told me “I try not to think about these things” and told me that at the time things had been very difficult for him and it was around this time that he lost five kilograms and had continued to have a very poor appetite.  He told me “I would do this differently” and “I’ve made some irrational choices”.  He told me that at the time that he wrote his original Affidavit “I was confused”.  He told me that he now thinks he is a lot calmer.

6. Ms D expressed the following opinions as to the likely effect on the children of these actions of the father: 

   98.      I am most concerned about the harm that was caused to the children by the father’s removal of them whilst they were in the care of their grandmother.  The father’s account of this event was unconvincing to me.  However, even if his account is accepted by the Court, it still means that the children were removed from their grandmother’s care without any forewarning and without any opportunity to farewell her and were suddenly thrust into the care of their father without any opportunity to manage this transition in a predictable manner.  The father then took the children away from their home and took them on holiday to visit numerous other people.  I have no doubt that these very young children would have been traumatised by these events, yet the father seems to be amnesic for how the children tolerated or coped with this significant change to their routine at an extremely young age and in the context of family turmoil.

7. I am far from convinced that the father made an instant, spontaneous decision to take the children from the care of the maternal grandmother on this occasion.  On the balance of probabilities, I am satisfied and find that he pre-planned the removal of the children with the collusion of Mr S and possibly Mr J.  It seems to me to be no coincidence that he travelled to the home of the maternal grandmother in a rental car, rather than his own vehicle which would have been familiar to her.  I am unpersuaded that restraint car seats were in the vehicle for any purpose other than the removal of the children.  I can conceive of no innocent explanation why Mr S would give to the father a beanie and a jacket, which happened to be in the car, just before he entered the maternal grandmother’s premises.

8. In cross-examination the father conceded that the children were “distressed” when he removed them from the care of the maternal grandmother.  It would appear that he allowed the children to travel some distance in Mr S’s car before he placed them in the restraint seats.  In my view, this incident was attributable solely to the father’s inability or unpreparedness to prioritise the children’s best interests over his own emotional needs.

9. Certainly it is the case that the father has apologised for his sudden, unilateral removal of the children from the care of the maternal grandmother.  The fact remains, however, that he was prepared to remove children of three years and eighteen months from their maternal grandmother and keep them from their mother for fifteen days, for no reason other than to satisfy his own needs.  There was never any suggestion that safety issues warranted or motivated his actions.

10. In conference with the Family Consultant on 7 December 2012, each parent said that the current arrangements are problematic for the children.  They both indicated that the best outcome for the children would be a five/nine night split each fortnight but they could not agree upon which parent should have the majority of their care.

11. Ms D had no doubt that the current arrangements have failed to meet the children’s needs.  She reported: 

    108.    In my view the current arrangements involve too much transition stress for the children and provide a rather fractured and discontinuous week for them.  My questioning of [K] revealed that she was unsure of the days of the week and nor was she sure when she would be seeing her father next.  Perhaps this is an artefact of the rather “choppy” arrangements that she is currently under.  Both parents reported that the children displayed signs of distress when they were adapting to these regimes and that although these signs of distress have relatively abated, that they still may find some aspects of the routine difficult.  The father is of the view that the children have and will continue to adapt to this routine whilst the mother is not as confident.  It is my view that the current parenting arrangements are not helpful for the children due to their fragile attachment relationships with both of their parents.

12. Ms D made the following recommendations: 

    107.    I further recommend that the children’s time with each of their parent be increased in a graduated sequence as they attain school age.  The mother’s proposal suggests that the children live with her and spend time with their father each alternate weekend from 5pm Friday until 5pm Sunday and for eight hours each Wednesday until 6pm.  In this way I think that the children will be able to spend time with their father engaged in recreational, educational, and social activities on both weekend and weekday times.  The children should also be interacting with their father by Skype or telephone during the time that they are not spending with him.”

    …

    109.    With respect to arrangements once the children attain school age, I am of the view that they should be able to spend the Sunday evening in their father’s care such that he return them to school on the Monday morning and that the time with the father should commence at the conclusion of school on Friday afternoon.  That way, the children’s transitions will occur at school.  In addition, I think that the children will be able to tolerate, as outlined in the mother’s proposal, spending Wednesday evenings until commencement of school on Thursday morning in the father’s care.  This means that each alternate week the children would spend from after school Wednesday until commencement of school on Monday morning in the father’s care.  In this way, the children will benefit from and have the opportunity to have the father involved in their school lives and day-to-day routine.  However, by the time that [Z] attains school age, they should be psychologically equipped with the more lengthy separation from their mother.

13. In oral evidence Ms D said that she did not intend to include Thursday night in alternate weeks.  She said also that the children should have short communication with the father by Skype or telephone on a daily basis, preferably in the morning.

14. Ms D expressed real concerns about the effect on the children of a continuation of the current arrangements, in accordance with the father’s proposal.  She opined: 

    95.      If, on the other hand, the Court accepts the father’s proposals, then there is likely to be a negative impact on the children insofar as they are to spend significantly less time with their mother.  As articulated earlier, I found that the children, and most particularly [K], had more dependence on their mother for emotional regulation and emotional security.  Consequently, it is my view that the likely effect of such significant separation from their mother is more significant in terms of their psychological adjustment and overall wellbeing than the separation from their father outlined in the mother’s proposal.  If the children were to be separated from their mother as per the father’s proposal, then it is possible that [K] will experience significant distress, display regressive behaviours and have trouble once more regulating her intense emotional reactions.  It is possible that this will have flow on effects to her capacity to regulate her emotions at preschool, form normal peer relations and settle into school and follow a healthy psychological trajectory.  Similarly, given her young age I think that [Z] is also likely to have an extremely negative response to spending significantly less time with her mother, including increased symptoms of anxiety, separation stress, and difficulty managing and unfamiliar situations.

    96.      The children appear to also have been spending significant periods of time with their maternal grandmother.  It is unclear to me what the nature of this attachment relationship is, however, the children are likely to miss their maternal grandmother should they not have the opportunity to spend extended periods of time with her.  Given the other changes in their lives I think this is likely to have a negative impact on them as it appears that the maternal grandmother has been a figure for which the children turn to for support.

15. The mother gave evidence that she suffers from mild anxiety and depression, a diagnosis made by her treating psychiatrist Dr G in approximately July 2011.  Dr G prescribed Seroquil and Cymbalta, which the mother takes on a daily basis.  The mother sees her psychiatrist once each fortnight and expressed confidence that she has learned to recognise triggers for her stress and anxiety.

16. As noted, the father indicated to Ms D that he considered the mother’s mental health an issue in the proceedings.  Ms D did not share his view and opined that she could see no basis for his allegations that the mother’s mental health impacts negatively on her parenting capacity.  She considered that the mother has appropriately managed her illness and reported:  “Perhaps paradoxically, the mother’s experience of mental health has probably made her more attuned to the emotional needs of the children and more aware of them”. 

17. Ms D reached the conclusion that the mother has a greater capacity to meet the children’s needs than does the father.  She summarised her assessment of the mother’s capacity as follows:

    89.      I found that the mother had a very good capacity to provide for the needs of the children materially, emotionally and intellectually and psychologically.  Rightly, the mother was most concerned about the disruption to the children’s attachment relationships and their ongoing emotional development.  I found the mother had a unique and insightful manner of speaking about the emotional experiences of the children.  She noted that both her and the father’s behaviour had been devastating for the children, particularly with respect to separating them from the other parent’s care.  She was also aware of the impact of family violence, including emotional disputes on children.  The mother appeared to have modified her parenting style, in line with professional advice in order to assist [K] manage her emotional reactions.  The mother was also cognisant of [K’s] developmental needs insofar as she thought it was appropriate for her to be engaging with peers in a preschool environment prior to her starting formal schooling. The mother also appeared to have appropriate and child focused routines in her own household that provided predictability, routine, and structure for the children.  I observed during her play and interaction with the children that she engaged with them in a calm, child focused but adult like manner.  By this I mean that she tended not to engage with them as another child might but engaged with them as an adult structuring and overseeing the play, providing support and guidance when required but largely encouraging independence.  The mother also appears to have modified her professional commitments in order that she be generally available for the children whilst maintaining sufficient income to provide for their material needs.  The mother was also aware of the unique needs regarding [K] and the disclosure to her of her genetic origins and conception.  The mother provided a good account of the need to disclose this to [K] in a timely and developmentally appropriate manner.

1. Ms D summarised her assessment of the father’s parental capacity as follows: 

   92.      However, on balance, I thought that the father had some relative blind spots in his capacity to provide for the needs of the children emotionally.  His account of [K] appeared to be somewhat inconsistent because on the one hand he said that she was extremely distressed but on the other hand reported that she was very happy.  He also reported that [Z] appears to be wholeheartedly happy and well settled.  He was not able to indicate any areas of concern regarding the children’s emotional experience, beyond those that were attributed to their settling to the new routine.  The father also tended to be preoccupied in a negative manner about the mother’s motives and the possibility that she was seeking to exclude him from the children’s lives.  In general terms, I found that the father interacted with the children more like a peer would rather than being able to set firm limits or deal with them in an authoritative and instructive manner.  In this way, he is perhaps not responding appropriately to their emotional and psychological needs for security, and predictable and structure responses to unusual or new situations.  Undoubtedly, the father loves the children and they love him, and they benefit from spending time with him, however, I think that there are some aspects of their emotional regulation that could be improved if the father were to change some of his responses to these situations.

2. Overall, I respectfully agree with this observation of Ms D as to the parties’ respective capacities:

   102…I found that the father’s narrative was generally preoccupied with his rights in seeing the children and spending time with them, rather than being focussed on the needs of the children and the impact of the parental conflict on them. 

   It seemed to me that the mother has made more progress along the path to greater insight into the children’s needs than has the father.

3. On the other hand, Ms D expressed the view that the father “has come to a new understanding of the importance of promoting the children’s relationship with the wife”.  She expressed some reservations, however, as to whether he will be able to maintain this change in attitude.  Ms D reported that the mother told her that “things have improved since the orders of 15 August”.  The mother said also that “the conflict between herself and [the father] has reduced somewhat”. 

4. Encouragingly, both parties gave evidence to the effect that their conflict has abated and that they are able to accommodate to some extent the children’s wish that they engage in activities as a family unit.  In his affidavit of 5 September 2013 the father deposed that there have been these recent examples of parental cooperation:

   ·the parents offer each other tea and coffee on changeovers

   ·the mother makes available secure parking at her apartment complex when he attends with the children

   ·the parties and children have attended cafes and parks during extended changeovers

   ·the mother facilitated time on Fathers Day 2013, although the orders provided for the children to be in her care that day

   ·on 1 September 2013 the parents informed K together of her biological origins, after developing a joint strategy with Dr M on 27 August 2013.

   In her oral evidence the mother said:  “I would not say that we are singing from the same page but we are definitely in the same hymn book now”.

5. The father has taken various steps with a view to improvement of his parenting skills.  He has now engaged with Dr M and accepted and acted upon her advice.  He has undertaken courses known as “Circle of Security” and “Focus on Kids”.  He attends a counsellor for assistance with mood regulation.  In my view, the father deserves considerable credit for these steps.

The Presumption of Equal Shared Parental Responsibility

1. I find that there are no reasonable grounds to believe that either parent has engaged in abuse of the children or family violence, such as to displace the presumption of equal shared parental responsibility.  I find that the presumption is not rebutted by evidence that it would not be in the children’s best interests for the parties to have equal shared parental responsibility.  On the contrary, I consider that the children would benefit greatly from an awareness that they have two loving parents who are closely involved in all major decisions regarding their education, health, extracurricular activities and general welfare.

2. I am not satisfied that the mother has established that she should have sole responsibility for making decisions concerning the children’s education.  It seems to me that the parties are making substantial progress toward a cooperative approach to the parenting of their children.  I suspect that they will succeed in moving further along that path once they are free of the stress of these proceedings.  In my view, they should be able to consult and agree on major decisions concerning the children’s education.

Equal Time and Substantial and Significant Time

1. As there will be an order that the parties have equal shared parental responsibility I am required to consider whether it would be in the children’s best interests, and reasonably practicable, for them to spend equal time with each parent.  Such an arrangement has been in place since 15 August 2012 and in the view of the single expert, is contrary to the children’s best interests.  I have referred above to Ms D’s comprehensive and detailed evidence on this issue.  There was no successful challenge to any of her opinions or assessments on this matter.

2. Notably, both parents identified difficulties with the equal time arrangement to Family Consultant Ms Q in December 2012.  It is of some concern that the father persisted with his quest for equal time, despite that concession and in the face of strong recommendations against that regime by Ms D.  It is perhaps the case that he has yet some way to go in learning to prioritise the children’s needs over his own emotional requirements.  I am not prepared to continue an arrangement whereby the children spend equal time with each parent. 

3. I am then required to consider whether it is in the best interests of the children, and reasonably practicable, that they spend substantial and significant time with each parent.  It is my view that the concerns expressed by Ms D apply also, to a significant extent, to a regime which could be classified as “substantial and significant time”.

4. Ms D clearly explained the reasons for her recommendation that the children spend the majority of their time with the mother.  She reported:

   106.On balance, however, it is my view that the children should spend the large majority of their time in the care of their mother.  I found that both of their attachment relationships, and most particularly [K’s] were fragile at best.  In the light of this situation, I think that it is imperative that the parenting arrangement where the children spend the majority of their time in the care of one parent to be optimal.  In order for [the children] to develop a more secure attachment relationship, I think they need the stability, and routine and structure that will be provided by one parent.  In assessing the relative merits of each of the parents, I found that the mother had more capacity to respond to the children’s emotional needs and therefore consider that she would be the parent with whom the children should spend the large majority of their time in order to give them the best chance of secure psychological development.

5. There was no successful challenge to these expert opinions and assessments.  I consider that Ms D’s opinions were soundly based and that her evidence should carry substantial weight.  The ICL formulated a proposal which, in my view, accords with Ms D’s recommendations.  Having regard to the whole of the evidence, I am persuaded that this proposal meets the best interests of the children.

6. The father has no firm plans in relation to accommodation or employment, following the sale of the former matrimonial home as sought by both parties.  He indicated that he will probably find housing in close proximity to the children’s school.  If he does so, the proposal of the ICL could be considered to be “reasonably practicable” as required by the legislation. 

7. I will thus make orders substantially in accordance with the proposal of the ICL.  I will add an order for daily communication for the children with the father by Skype or telephone, as recommended by Ms D.

Property

1. I have no hesitation in concluding that it is just and equitable to make an order for alteration of property interests in the circumstances of these proceedings.  There is no doubt that the parties’ marriage has broken down irretrievably and there is no prospect of future common use of their funds.  They each seek orders for the sale of their principal asset, being the former matrimonial home.  Otherwise, their financial intermingling was severed upon their separation.

The Assets, Superannuation, Liabilities and Financial Resources

1. At the end of the trial, counsel for the husband and wife submitted a joint balance sheet in the following terms: 

No.	Ownership		Description		Wife’s Value	Husband’s Value
ASSETS
Personal Assets
1	Joint	C Street, Suburb R			$1,150,000	$1,150,000
2	Joint	CBA Offset Account …604			$6,271	$6,271
3	Wife	CBA Personal Account			Nominal	NK
4	Wife	Woolworths Shares @$35.58			$15,410	$15,410
5	Wife	CBA Shares @$73.28			$7,540	$7,540
6	Wife	OSG CBA Insurance policy			Nil	Nil
7	Wife	Holden motor vehicle			$15,000	$15,000
8	Husband	CBA Personal Account …110			$1,770	$2
9	Husband	ANZ Account No….375			$595	$1
10	Husband	CBA Personal Account			$1,535	$528
11	Husband	ANZ Account No….359			$47	$47
12	Husband	184 NAB Shares@$32.59 per share			Nil	Nil
13	Husband	Funds held in trust by solicitor			$22,209	See item 24
14	Husband	CBA Shares			Nil	Nil
15	Husband	Holden motor vehicle			$2,500	$2,500
16	Wife	Household contents			$5,000	$5,000
17	Wife	Jewellery			$7,000	$7,000
18	Wife	Alleged items taken by wife post separation			Nil	$4,000
19	Husband	Household contents			$5,000	$5,000
20	Husband	Personalty			$10,000	$4,000
TOTAL			$1,249,877	$1,222,299
ADD BACKS
21	Husband	Legal fees paid			$50,000	Nil
22	Husband	Funds held in husband’s solicitors trust account			$16,708	$16,708
23	Wife	Legal fees spent			Nil	NK
24	Husband	Moneys retained by husband following separation			$40,000	Nil
25	Wife	Partial property distribution			$30,000	$30,000
26	Husband	Partial property distribution			$30,000	$30,000
TOTAL			$166,708	$76,708
LIABILITIES
No.	Ownership			Description	Wife’s value	Husband’s value
27	Joint			CBA Home mortgage	$295,924	$295,924
28	Joint			Balance of joint CBA MasterCard account	$1,028	Nil
29	Joint			Children’s expenses incurred on Credit card	$7,956	Nil
30	Joint			Centrelink debt	$5,053	Nil
31	Joint			Selling costs, agents fees & legals	$34,500	$26,450
32	Husband			NAB Credit Card Debt	Nil	$9,651
33	Husband			Electricity on former matrimonial home	Nil	$905
34	Joint			Water rates on former matrimonial home	Nil	$611
35	Joint			Rates owing on former matrimonial home	Nil	$1,442
36	Husband			Tax Invoice to P Automotive	Nil	$3,468
TOTAL	$344,461	$338,451
NET ASSETS	$1,072,124	$960,556
SUPERANNUATION
No.	Ownership			Description	Wife’s value	Husband’s value
37	Husband			CBUS Super	$102,714	$102,714
38	Wife			CBA Super fund at 30.06.13	$140,000	$140,000
TOTAL SUPERANNUATION				$242,714	$242,714
GRAND TOTAL	$1,314,838	$1,203,270

Non-Superannuation Assets

1. The only evidence as to the husband’s bank accounts consisted of admissions against interest in his Financial Statement of 19 June 2013, wherein he deposed to account balances as follows:

1.	Commonwealth Bank	$1,770
2.	ANZ Bank	$595
3.	Commonwealth Bank	$1,535

I will include these bank balances in the list of assets.

1. There was no evidence as to “alleged items taken by the wife post-separation” to the value of $4,000.  I was taken to no evidence to support the wife’s contention that the husband retained $40,000 after the separation and he was asked nothing about any such monies.  I thus exclude these alleged “add-backs” from the list of assets.

2. Counsel for the husband submitted that all funds applied by the parties to meet legal fees should be excluded from the list of assets, other than the partial property settlements of $30,000.  It seems to me that there is merit in this approach, as they have each borrowed money to pay legal fees and otherwise the evidence was unclear as to the source of these funds.  Accordingly, I will exclude the sums of $50,000 and $22,209 from the list of assets.  The Joint Balance Sheet dated 11 September 2013 indicated agreement that a sum of $16,708 held in the trust account of the husband’s solicitors should be included as an asset.

3. There was a dispute as to the value of “personalty” owned by the husband which can be resolved only by reference to an admission against interest contained in his Financial Statement of 19 June 2013.  There he deposed to a value of $4,000 for these chattels.  Accordingly, I will include the husband’s personal property in the list of assets at a value of $4,000. 

Liabilities

1. The husband sought to include as liabilities unpaid water and council rates, together with an electricity bill in relation to the C Street property.  I see no basis whatsoever upon which any part of these liabilities should be sheeted home to the wife.  The husband has had exclusive occupation of the former matrimonial home since the wife vacated the property in June 2012 and she has been obliged since to finance her own accommodation. 

2. There was no evidence in relation to the following alleged liabilities:

1.	Balance of CBA joint MasterCard (W)	$1,028
2.	Children’s expenses incurred on credit card (W)	$7,956
3.	Centrelink debt (W)	$5,053
4.	Costs and expenses on sale of C Street property	$34,500 (W) Or $26,450 (H)
5.	NAB credit card debt (H)	$9,651
6.	Tax invoice to P Automotive (H)	$3,465

These debts were included in the Financial Statements of the parties.  Their affidavits, however, contained no evidence of the time when or purposes for which they incurred the liabilities.

1. In circumstances where I know nothing of the time when these liabilities were incurred, nor for what purpose, I am not prepared to include these amounts in the Balance Sheet.  For example, I find it difficult to envisage any reason why the wife should accept liability for a debt to P Automotive apparently incurred solely by the husband.

2. I will thus include the Commonwealth Bank mortgage as the only liability in the Balance Sheet.  It was always open to the parties to adduce proper evidence if they wished to contend seriously for the inclusion of additional liabilities.

Superannuation

1. The parties were agreed as to the value of their superannuation benefits.

Financial Resources

1. There was no suggestion that either party has a financial resource.

Balance Sheet

1. I thus find that the parties’ assets, superannuation, liabilities and financial resources are as follows:

Non Superannuation Assets
1.	C Street, Suburb R (J)	$1,150,000
2.	CBA offset account (J)	$6271
3.	Commonwealth Bank Account (H)	$1,770
4.	ANZ Bank Account (H)	$595
5.	Commonwealth Bank Account (H)	$1,535
6.	ANZ Bank Account (H)	$47
7.	Woolworths shares (W)	$15,410
8.	Commonwealth Bank shares (W)	$7,540
9.	Holden motor vehicle (W)	$15,000
10.	Holden motor vehicle (H)	$2,500
11.	Funds held in solicitor’s trust account (H)	$16,708
12.	Household contents (W)	$5,000
13.	Household contents (H)	$5,000
14.	Jewellery (W)	$7,000
15.	Personalty (H)	$4,000
16.	Partial property distribution (H)	$30,000
17.	Partial property distribution (W)	$30,000
Superannuation
15.	Cbus Super (H)	$102,714
16.	CBA Super (W)	$140,000
$242,714
Liabilities
17.	CBA Home Mortgage (J)	$295,924

Contributions

1. There was no issue that the husband made a substantial initial financial contribution, being his equity in the H Street property.  On its sale in July 2001 he realised net proceeds of approximately $107,000, most of which he applied to the purchase of the former matrimonial home. 

2. In June 2002 the wife received a redundancy payment of $13,000, which she deposited into the mortgage offset account.  Her mother gifted to the wife the sum of $5,000 which she applied to the cost of renovations to the C Street property during the marriage.

3. In his affidavit the husband deposed that he received redundancy payments from the financial services provider in 2005 and S Company in May 2007, which he deposited into the mortgage offset account.  He did not quantify these payments but the wife agreed in cross-examination that he did deposit redundancy payments into the mortgage account.

4. There can be no doubt that the wife contributed a greater amount by way of income from employment than did the husband.  She has held paid employment throughout the relationship, other than for two periods of maternity leave between March 2009 and November 2009 and December 2010 to September 2011.  Her employment has been part-time between December 2009 and April 2010 and from September 2011 to date.

5. The husband last held permanent full-time employment in May 2005.  He has since held a series of short-term contracts and been out of the paid workforce completely since February 2011.  It was agreed that the husband’s taxable income in the 2010-2011 financial year was $49,000 and that of the wife $105,000.  I regard that agreed fact as illustrative of the disparity in contributions of the parties by way of income from employment.

6. It seems to me that the husband had a more extensive involvement than did the wife with the parties’ investment property.  In cross-examination the wife said:  “I give him credit for what he did with the investment property at [Suburb Y]”.

7. Documents relating to the wife’s superannuation benefit (exhibit 9) showed that she joined the Commonwealth Bank Group Super Fund on 7 March 1995.  On 31 December 2011 the balance of her account was $98,464.  On 30 June 2012, which is around the time when she left the former matrimonial home, her account balance was approximately $111,000.  The agreed balance as at the date of trial was some $140,000.  This post-separation increase in the value of the wife’s superannuation benefit has occurred without any contribution from the husband.

8. I assume that the husband entered the relationship with a superannuation benefit, although there was no evidence of its value as was also the case with the wife.  As noted, the husband conceded that any increase in the value of his benefit after the separation was solely attributable to accrual of interest.

9. The husband gave evidence in his affidavit of renovations to the former matrimonial home, to which he contributed substantial physical labour.  He deposed that the wife assisted him with some physical work and with sourcing of contractors and materials.  He maintained that the parties shared approximately equally in the cost of these renovations.  In cross-examination the wife said that she “broadly agreed” with the husband’s account of this work. 

10. There seems to be no doubt that each of the parties has participated in the care of the children in a very “hands-on” manner since the time of their births to date.  Since February 2011 the husband has been out of the paid workforce and the wife engaged in employment on a part-time basis.  In these circumstances I accept that the husband has devoted more time to the care of the children than has the wife.  I accept, however, that she has taken every opportunity to fulfil the role of homemaker and parent, to the extent permitted by her employment commitments.

1. The husband has made no contribution to the cost of K’s child care fees since the separation.  The wife has paid the full amount of $120 per week.

2. The husband has had the benefit of exclusive occupation of the former matrimonial home since the parties’ physical separation in June 2012.  The wife has been obliged to fund her own accommodation, for which she currently pays a rental of some $650 per week.  Mortgage repayments in respect of the former matrimonial home have come from funds lodged in the parties’ joint offset account.  In September 2012 the wife mistakenly deposited $1,500 from her savings into the mortgage offset account.  The husband has refused to authorise the return of these funds to her.

3. It seems to me that the husband’s initial contribution of the proceeds of sale of the H Street property enabled the parties to embark on the accumulation of their present net asset base.  On the other hand, the wife has since made substantial contributions.  In particular, she has been the principal breadwinner since 2005 and was the sole provider of income to the household between February 2011 and the separation.  She has increased the value of her superannuation benefit by some $29,000 since she vacated the former matrimonial home.

4. There is no doubt that the husband was responsible for a substantial proportion of the care of the children prior to the parties’ separation.  The wife disputed his assertion that he was their primary carer but it is beyond contest that he made a significant contribution as homemaker and parent.

5. In all of the circumstances, it seems to me that the husband’s initial contribution of approximately $100,000 has been offset to a substantial extent by subsequent contributions on the part of the wife.  I find that contribution, as at the date of trial, should be assessed at 55 per cent to the husband and 45 per cent to the wife.

Section 75(2) Factors

1. The husband is aged 45 and holds Bachelor and Masters degrees.  He commenced a course of study for qualification as a professional in 2009 but conceded in cross-examination that he may not be able to complete the requirements of the relevant statutory authority.

2. Mr E annexed to his report a letter to the husband dated 23 April 2013 from the Executive Officer of that authority which read, inter alia, as follows:

   Following the Term 1 2013 (March 2013 examinations), the Board’s records indicate that you have breached either Rule 64 or Rule 66 as follows:

   Rule 64 – for failing to sit for examination in at least two subjects in any two successive sessions – from Semester 2 2012 to Semester 1 2013 and, as a result you will be excluded from taking any further examinations.

   If you wish to continue with the ... Course, Rule 67 of the Board’s rules provides that a person excluded by Rule 64 or 66 may apply for relaxation of those Rules.   Applications by students wishing to enrol in Term 2 2013 (commencing May 2013) are required to be lodged with the Board by 3 May 2013…

   The husband conceded in cross-examination that he has made no such application.

3. Between early 2009 and the date of separation, the wife contributed to the financial support of the husband while he studied for qualification as a professional.  Of course, he earned some income from short-term contracts during that period.  The husband has defaulted on the requirements of the relevant statutory authority and placed in jeopardy his prospects of gaining qualification as a professional.

4. The husband has not held paid employment since 2011.  He has applied for numerous jobs but has not yet been granted an interview. He provided to Mr E a list of jobs for which he has applied through the CBA website (pages 32 and 33 of annexures to the report of Mr E).  All of these applications appear to have been for positions in the financial sector.  When asked in cross-examination about whether he has considered expanding the area in which he seeks employment he said:

   After [the wife] left the former matrimonial home I started to apply for lower-paid jobs and part-time work.  Since then I have applied for a job as a sandwich hand and on a blue collar site.  It is not as simple as “any job will do” when I am caring for my children.  Child care is about $120 per day.

5. Section 75(2)(l) makes absolutely clear that there is “a need to protect a party who wishes to continue that party’s role as a parent”.  It seems to me, however, that the wife has balanced that role with her obligation to provide financial support for the children, whereas the husband has yet to do so.

6. In his report Mr E answered the following questions:

   2.        Prospects and availability of employment in his area of expertise having regard to his limited employment since 2009 and an estimate of the remuneration available to him at the time he commences employment…

   For both full time and short term employment opportunities is an oversupply of candidates.  Candidates with long periods of unemployment and lacking referees who can substantiate their claimed achievements as in [the husband’s] case are viewed as risky and passed over in favour of those in current employment who are viewed as less risky, more up to date and more to offer…

   Provided he does gain employment then, solely based on his qualifications and experience potentially he could earn remuneration in the range of $80,000 to $110,000 p.a. as a Business Analyst or Senior Business Analyst in the Banking, Finance or Insurance sector.  It is more likely that he would be hired in the bottom of the range and progress to the top of the range over a period of 2 to 3 years.

   On a short term contract basis potentially he could receive a daily rate in the $600 to $800 range.  In this capacity continuity of employment would be uncertain.

   3.       Prospects and availability of employment in his current area of study and estimate of the level of remuneration available to him? 

   It is noted that there is now some uncertainty whether or not Mr [the husband] will be permitted to continue his studies towards the … Diploma…

   Given his maturity and business experience I consider [the husband] has reasonable prospects of gaining an entry level position in the … profession…

   His preferences in [particular areas of professional practice] by my assessment would attract a starting remuneration in the range of $50,000 to $60,000 pa.  Aboriginal [area] entry jobs would be at the bottom of this range. 

   4.         Prospects and availability in employment in a field combining [the husband’s] previous employment experience and current area of study and an estimate of the current level of remuneration to him? 

   This question assumes that once he gains his [professional qualification] he would seek a position in the finance or related industry sector…

   The current rate for a [professional] with three years’ experience I estimate in the remuneration (salary plus superannuation) range of $75,000 to $85,000 pa. 

   5.         An opinion at his income capacity at 2 years after re-employment? 

   Should [the husband] gain re-employment as a Business Analyst I estimate he would improve his remuneration by 10% over 2 years.  Thus if he is hired at $80,000 per annum at the end of the second year I would expect his remuneration to increase to $88,000 pa based on inflation and performance factors.

   Making a career change to gain any form of employment…

   Whatever that position may be I can see no reason why such an employer at best would offer more than a starting figure comparable to the current Australian Bureau of Statistics figure for Average Weekly Earnings amounting to $1,370 per week or annualised at $71,235 p.a.  This figure would be paid on a pro rata basis if employment was to be on a part -time basis.

7. It seems to me that the husband has made genuine efforts to obtain employment but that he has been selective in terms of jobs which are acceptable to him.  I am sceptical as to whether he has made concerted efforts to seek employment outside of his chosen field.

8. The wife is aged 37 and holds Bachelor and Master degrees.  She has a long term history of stable employment in the finance and banking industry.  Her unchallenged evidence was that she currently earns an income of $1,434 per week, on which she pays tax of $350.  She also pays child support of approximately $127 per week to the husband.

9. The parenting orders which result from these proceedings will place the children in the care of the wife for a greater proportion of time than will be the case with the husband.  I consider it likely that she will continue to incur child care fees of $120 per day for the foreseeable future.

10. Ultimately it seems to me that the section 75(2) considerations devolve to a balancing of the husband’s employment prospects and the wife’s responsibility to provide for the financial support of the children. In my view, she has slim prospects of obtaining from him any meaningful contribution to their financial support.

11. Primarily because of the wife’s care of the children for the majority of time, and the likelihood that she will continue to be solely responsible for their financial support, I find that there should be an adjustment in her favour pursuant to section 75(2). I assess that she should receive an addition 10 per cent of the net pool of assets and superannuation.

Conclusion As To Settlement of Property

1. I thus find that the net pool of assets and superannuation should be divided as to 55 per cent to the wife and 45 per cent to the husband.  The net pool has a value of $1,245,166, of which 55 per cent and 45 per cent equate to $684,841 and $560,325 respectively.

2. The wife currently holds or has had the following assets and superannuation:

1.	Woolworths Shares	$15,410
2.	CBA Shares	$7,540
3.	Holden Motor Vehicle	$15,000
4.	Household Contents	$5,000
5.	Jewellery	$7,000
6.	Interim Property Settlement	$30,000
7.	Superannuation	$140,000
and I will order that she receive the balance of the CBA Offset Account		$6,271
$226,221

The wife thus requires an additional $458,620 to constitute her entitlement of 55 per cent of the net pool.

1. The husband currently holds or has had the following assets and superannuation:

1.	Commonwealth Bank Account	$1,770
2.	ANZ Bank Account	$595
3.	Commonwealth Bank Account	$1,535
4.	ANZ Bank Account	$47
5.	Holden Motor Vehicle	$2,500
6.	Funds in Solicitor’s Trust Account	$16,708
7.	Household Contents	$5,000
8.	Personalty	$4,000
9.	Interim Property Settlement	$30,000
10.	Superannuation	$102,714
$164,869

The husband thus requires an additional $395,456 to constitute his entitlement of 45 per cent of the net pool.

1. The sums of $458,620 and $395,456 will come from the net proceeds of sale of the C Street property.  The net equity in that asset is $854,076, on the basis of a value of $1,150,000 and a mortgage encumbrance of $295,924.  Of course, there can be no certainty as to the actual sale price and the selling costs did not form part of the evidence.  Additionally, there may be a variation in the mortgage payout figure by the time of settlement of the sale.  For those reasons, I will express my orders as to division of the net proceeds of sale as percentages of the additional amounts due to each party in relation to the figure of $854,076.  Those percentages equate to 53.7 per cent  to the wife and 46.3 per cent to the husband.

2. From an overall perspective, I am satisfied that this outcome achieves justice and equity between the parties.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 December 2013.

Associate:     

Date:              23 December 2013