DOYLE & WINTERS

FAMILY COURT OF AUSTRALIA

DOYLE & WINTERS

[2013] FamCA 911

FAMILY LAW – CHILDREN – Where the mother is the primary carer – Where the father seeks orders that the children live primarily with him – Where the mother seeks a shared care arrangement – Where the children have a close and loving attachment to both parents – Whether the mother will facilitate and encourage a relationship between the children and father in future – Parenting capacity – Concerns about the ability of each parent to make sound decisions in relation to the children’s health – Parental Responsibility – Where the parents have had difficulty communicating effectively in the past – Where the interim parenting arrangement has worked well for the children.

FAMILY LAW – PROPERTY - Assets and Liabilities - Contributions – Where the wife made the greater contributions - Adjustments – Where an adjustment is warranted in favour of the wife - Just and equitable.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 65DAA, 65DAC, 75 & 79

In the Marriage of Ferraro (1992) 16 Fam LR 1; In the Marriage of Omacini (2005) 33 Fam LR 134; In the Marriage of Pierce (1998) 24 Fam LR 377; Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Shewring (1987) l2 Fam LR 139; In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797; In the Marriage of Coghlan (2005) 33 Fam LR 414; McCall and Clark (2009) 41 Fam LR 483; Mazorski & Albright (2007) 37 Fam LR 518; G & C [2006] FamCA 994; Champness & Hanson (2009) FLC 93-407; Sigley & Evor (2011) 44 Fam LR 439; Savery & Savery (1990) 13 Fam LR 812; (1990) FLC 92-131

APPLICANT:

Ms Doyle

RESPONDENT:

Mr Winters

FILE NUMBER:

PAC

1161

2011

DATE DELIVERED:

11 January 2013

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Loughnan, J

PLACE HEARD: Sydney

HEARING DATES:

6 – 10 February 2012; 26 and 27 July 2012; and 5 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE

Mr R. Lethbridge SC

Ms D. Hausman

SOLICITOR FOR THE APPLICANT:

KDB Holmes Solicitors

COUNSEL FOR THE RESPONDENT HUSBAND:	Mr J. Lloyd SC
SOLICITOR FOR THE RESPONDENT:	Paltos Briggs Solicitors
COUNSEL FOR THE ICL:	Ms M. Devere
SOLICITOR FOR THE CHILDREN:	Ms C. Hafey NSW Legal Aid

Orders

Subject to Order 2, the husband and wife shall have equal shared parental responsibility for the children, B born … 2004 and C born … 2006.
The wife shall have sole parental responsibility in relation to medical treatment to be administered to the children including but not limited to vaccinations, operations, dental and orthodontic treatment, speech therapy, physiotherapy and alternative medical treatment of the children but will consult with the husband prior to any decision in relation to these matters;
That the children live with the husband as follows:
3.1.Each alternate week from the conclusion of school Thursday until the commencement of school on the following Monday, with the husband to collect the children from their school at the commencement of the period and deliver the children to their school at the conclusion of the period;
3.2.Every other week from the conclusion of school Thursday to the commencement of school Friday;
3.3.For half of each of the school holiday periods as agreed and if agreed not for the second half in respect of holidays commencing in years ending in an even number and the first half in respect of holidays commencing in years ending in an odd number;
3.4.If the Easter weekend does not fall in the school holidays:
3.4.1.from 8:30am on Good Friday to 8:30am on Easter Sunday in years ending in an even number.
3.4.2.from 8:30am on Easter Sunday to 8:30am on the Tuesday following the Easter long weekend or school, if it is a school day, in years ending in an odd number.
3.5.in years ending in an even number from 8:30am Boxing Day to 8:30am on 28 December;
3.6.such further or alternate times as the parties may agree.
Unless the parties otherwise agree, at all other times the children shall live with the wife.
Notwithstanding any other Order the children spend from 8:30am to 6:30pm on Mother's Day with the wife and from 8:30am to 6:30pm on Father's Day with the husband.
Notwithstanding any other Order in years ending in an odd number the children return to live with the wife from 8:30am Boxing Day to 8:30am on 28 December.
For the purposes of changeover, when not at the children's school, the wife will deliver the children to the husband's residence at the commencement of the period of time spent with him and the husband will return the children to the wife at the conclusion of each such period.
The parties shall each authorise any medical practitioners, preschools and schools that the children may attend to release all the information regarding the children to the other parent.
The parties shall each notify the other as soon as possible if either child suffers any serious injury or illness while in their care and otherwise notify the other where reasonably practicable of any medical appointment made for the children.

10.Within 42 days of the date of these Orders, or such other time as the parties agree in writing, the husband transfer to the wife the whole of his right, title and interest, if any, in the property situated at and known as D Street, Suburb E in the state of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier ...
11.Contemporaneously with compliance with Order 10 above, the wife shall do all acts and things necessary to discharge the Commonwealth Bank of Australia loan account numbered … secured by way of mortgage registered over the Suburb E property.
12.In the event that the wife does not discharge that Commonwealth Bank of Australia loan within that time, Order 10 is vacated and the parties shall do all things and sign all documents necessary to cause the Suburb E property be sold by private treaty (unless the parties otherwise agree) and for that purpose the following shall occur:
12.1the parties shall within seven (7) days of the wife’s default:
12.1.1appoint F Real Estate Agents of G Street, Suburb H in the State of New South for the sale of the Suburb E property, the costs of and incidental to such appointment to be borne by the parties as and when they fall due;
12.1.2instruct I Lawyers of J Street, Suburb E in the State of New South Wales to prepare a contract for the sale of the land for the Suburb E property, the costs of and incidental to such appointment to be borne equally by the parties on completion of the sale;

12.2the parties shall cooperate in every way with the agent as and when required and refrain from doing or saying anything to hinder or prevent a sale being effected.
12.3on settlement of the sale of the Suburb E property, the proceeds of sale shall be paid in the following manner and priority:
12.3.1all costs and expenses incurred on the sale including legal costs and disbursements, agents commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
12.3.2the amounts required to pay all municipal and water rates outstanding with respect to the Suburb E property;
12.3.3the amount required to discharge the Suburb E mortgage;
12.3.4the balance to be paid to the parties in the following way:
12.3.4.1the net proceeds, up to $743,559 are to be paid to the wife;
12.3.4.2
if the net proceeds of sale are greater than $743,559, the amount by which they exceed $743,559 should be paid out in the proportions

71 per cent to the wife and 29 per cent to the husband;
12.3.4.3if the net proceeds of sale are less than $743,559, the husband shall pay to the wife, within 28 days, an amount representing 29 per cent of the shortfall between the net sale proceeds and $743,559.

13.Within 28 days of the date of these Orders, or such other time as the parties agree in writing, the husband transfer to the wife the whole of his right, title and interest in:
13.1 the joint CBA savings account number …; and
13.2the account containing the net proceeds of sale of the property at K Street, Suburb L.

14.Unless the parties otherwise agree in writing, the furniture and contents contained in the Suburb E property and the furniture and contents removed by the wife from the Suburb E property be divided equally between the parties and for that purpose the wife is to prepare two lists of furniture and contents of similar value and the husband is to elect to retain the items set out on one of those lists.
15.Subject to the foregoing, the parties are otherwise solely, legally and beneficially entitled to all other property of whatsoever nature and kind in their respective possession or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, jewellery, motor vehicles, furniture, furnishings and effects and superannuation.

16.Except as specifically provided for by these Orders to the contrary:
16.1The husband shall indemnify the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband.
16.2The wife shall indemnify the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.

17.The husband and wife shall do all acts and things necessary to give effect to these Orders in the time periods prescribed.
18.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
19.Leave is granted to the parties to restore the proceedings within 28 days of the date of these Orders in respect of the wording of the orders, by giving at least seven (7) days written notice to the Associate to Justice Loughnan and to each other.
20.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1161 of 2011

Ms Doyle

Applicant

And

Mr Winters

Respondent

REASONS FOR JUDGMENT

Ms Doyle and Mr Winters lived together for nearly eight years, separating in late 2010. They cannot agree on the parenting arrangements for their two children, nor as to a settlement of their property. The parties are divorced but for convenience I will refer to them as the wife and husband.

Applications

In accordance with a Minute of Orders submitted on 26 July 2012 the wife sought orders in the following terms:
Parenting
1.That, subject to Order 2, the Husband and Wife have equal shared parental responsibility for the children, [B] born … 2004 ("[B]") and [C] born … 2006 ("[C]").
2.That the Wife have sole parental responsibility in relation to medical treatment to be administered to the children including but not limited to vaccinations, operations, medical treatment, dental and orthodontic treatment, speech therapists, physiotherapists and alternative medical treatment of the children but will consult with the Husband prior to any decision in relation to these matters;
3.That the children live with the Wife.
4.That the children spend time with the Husband as follows:
4.1Each alternate week from the conclusion of school Thursday until the commencement of school on the following Monday, with the Husband to collect the children from their school at the commencement of the period and deliver the children to their school at the conclusion of the period;
4.2Every other week from the conclusion of school Thursday to the commencement of school Friday;
4.3For half of each of the school holiday periods as agreed and if agreed not for the second half in years ending in an even number and the first half in years ending in an odd number;
4.4 If the Easter weekend does not fall in the school holidays:
4.4.1 from 8:30am on Good Friday to 8:30am on Easter Sunday in years ending in an even number;
4.4.2 from 8:30am on Easter Sunday to 8:30am on the Tuesday following the Easter long weekend or school, if it is a school day, in years ending in an odd number.
4.5In years ending in an even number from 8:30am Boxing Day to 8:30am on 28 December;
4.6 Such further or alternate times as the parties may mutually agree.
5.That notwithstanding any other Order the children spend from 8:30am to 6:30pm on Mother's Day with the Mother and from 8:30am to 6:30pm on Father's Day with the Father.
6.That notwithstanding any other order in years ending in an odd number the children return to live with the Mother from 8:30am Boxing Day to 8:30am on 28 December.
7.That for the purposes of changeover, when not at the children's school, the Mother will deliver the children to the Father's residence at the commencement of the period of time spent with him and the Father will return the children to the Mother at the conclusion of said period.
8.That the Mother and Father each authorise any medical practitioners, preschools and schools that the children may attend to release all the information regarding the children to the other parent.
9.The Mother and Father shall each notify the other as soon as possible if the children suffers [sic] any serious injury or illness whilst in their care and otherwise notify the other where reasonably practicable of any medical appointment made for the children
Property
10.That within 28 days of the date of these Orders the Husband transfer to the Wife the whole of his right, title and interest, if any, in:
10.1 The property situated at and known as [D Street, Suburb E] in the state of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier ….
10.2 The Wife's IAG Shares.
10.3The funds held in the Wife's solicitors' trust account.
10.4 [Motor vehicle 1] registration number … registered in the Wife's name.
10.5 The contents of the [Suburb E] property.
10.6The net proceeds of sale of the [Suburb L] property held by [I Lawyers].
10.7 The Wife's bank accounts.
11.That the Wife transfer to the Husband the whole of her right, title and interest, if any, in:
11.1 All shares for the time being or otherwise in the Husband's name.
11.2 The Husband's bank accounts.
11.3 The funds held in the Husband's solicitors' trust account.
11.4 [Motor vehicle 2] registration number … registered in the Husband's name.
12Contemporaneously with Order 10 above, the Wife shall do all acts and things necessary to discharge the Commonwealth Bank of Australia loan account numbered … secured by way of mortgage registered over the [Suburb E] property.
13.That the parties do all acts and things necessary to close bank accounts held jointly by them and divide the balance of those accounts equally between them.
14. That subject to the foregoing, the parties are otherwise solely, legally and beneficially entitled to all other property of whatsoever nature and kind in their respective possession or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, jewellery, motor vehicles, furniture, furnishings and effects and superannuation.
15. Except as specifically provided for by these Orders to the contrary:
15.1The Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.
15.2 The Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
16.That the Husband and Wife shall do all acts and things necessary to give effect to these Orders in the time periods prescribed.
17.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and thing necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

The husband sought the following orders:
Definitions
In these Orders, the following definitions shall apply:
a)“Father” or “Husband” means the Respondent, [Mr Winters].
b)“Mother or “Wife” means the Applicant, [Ms Doyle].
c)“[Suburb E] home” means the property situate and known as [D Street, Suburb E] in the state of New South Wales being the whole of the land contained in folio identifier … registered in the names of the Husband and the Wife as tenants in common as 8/10 share to the Wife and 2/10 share to the Husband.
d)“Suburb E Mortgage” means the registered mortgage number AC949231 to Commonwealth Bank Australia and which is registered on the title to the Suburb E home.
e)“[Suburb L] property” means the property situate and known as K Street, Suburb L in the state of New South Wales being the whole of the land contained in folio identifier … registered in the joint names of the Husband and the Wife.
f)   “[Suburb L] Mortgage” means the two registered mortgage numbers … and … to Commonwealth Bank Australia and which are registered on the title to the [Suburb L] property.
Parenting Orders
1.That all previous Orders be discharged other than Orders 6 to 11 inclusive and 20 (a) of the orders made on 21 October 2011.
2.That the Father have the sole parental responsibility with respect to the major long term issues about the care, welfare and development of the children:
2.1.[B Winters] (“[B]”) born … 2004; and
2.2.[C Winters] (“[C]”) born … 2006.
3.That in the exercise of that responsibility pursuant to order 2, the Father shall:
3.1.        notify the Mother in writing prior to making decisions about major long term issues in relation to the child including but not limited to the child’s education and health;
3.2.invite the Mother to indicate her views in writing;
3.3.take the Mother’s views into account in making such decisions; and
3.4.inform the Mother in writing of his decisions.
4.That the children live with the Father.
5.That the children shall spend time with the Mother as follows:
During school term
5.1.From after school on the first Friday immediately following the date of these orders until before school on the following Monday and for the same period each alternate week thereafter.
During school holiday periods
5.2.During the Autumn, Winter and Spring school holiday periods, for a period of 5 nights on dates and times as agreed between the parties and failing agreement time in accordance with order 5.1 hereof save that the period of time will commence at 6pm on the Friday if Friday is not a school day and concluding at 6pm on the following Wednesday.
5.3.During the Summer school holiday period, 2 periods of 7 nights each on dates and times as agreed between the parties and failing agreement:
First period of time
5.3.1.       From after school on 17 December of each year or 6pm if it is not a school day until 6pm 7 nights thereafter.
Second period of time
5.3.2.From 8.30am on 17 January of each year until 8.30am 7 nights thereafter.
5.4.Note that the time pursuant to order 5.1 hereof is to resume following the commencement of the school term at the conclusion of school on the first Friday of the school term and for that same period each alternate week thereafter.
5.5.At all other times as agreed between the parties in writing.
6.For the purposes of implementing Order 5.1 hereof, the Mother or her nominee is to collect the children from school at the commencement of the period of time and the Mother or her nominee is to deliver the children to school at the conclusion of the period of time.
7.For the purposes of implementing Order 5.2, 5.3, 5.5, 8 and 9 hereof, the father is to deliver the children to the mother at her residence at the commencement of the period and the mother is to deliver the children to the father at his residence at the conclusion of the period or any other location as agreed between the parties in writing.
8.Notwithstanding any other order that the children will spend time with the Father as follows:
8.1.On Father's Day in each year at times to be agreed in writing and failing agreement from 5pm on the day immediately before Father's Day until 5pm on Father's Day.
8.2.From 5pm on Christmas Eve until 5pm on Christmas Day in the 2012 year and each alternate year thereafter.
8.3.From 5pm on Christmas Day until 5pm on Boxing Day in the 2013 year and each alternate year thereafter.
8.4.On the children’s birthdays at times to be agreed in writing and failing agreement, when their birthdays fall on a day when they are living with the Mother from the conclusion of school until 7.30pm if their birthdays fall on a school day, and from 12noon until 7.30pm if their birthdays fall on a weekend.
9.Notwithstanding any other order that the children will spend time with the Mother as follows:
9.1.On Mother's Day in each year at times to be agreed in writing and failing agreement from 5pm on the day immediately before Mother's Day until 5pm on Mother's Day.
9.2.From 5pm on Christmas Eve until 5pm on Christmas Day in the year 2013 and each alternate year thereafter.
9.3.From 5pm on Christmas Day until 5pm on Boxing Day in the year 2012 and each alternate year thereafter.
9.4.On the children’s birthdays at times to be agreed in writing and failing agreement, when their birthdays fall on a day when they are living with the Father from the conclusion of school until 7.30pm if their birthdays fall on a school day, and from 12noon until 7.30pm if their birthdays fall on a weekend.
9.5.On the Mother’s birthday in each year at dates and times as agreed and failing agreement:
9.5.1.If her birthday is on a week day when the children are at school, from the conclusion of school until before school the following day or 8.30am if the following day is not a school day; and,
9.5.2.If her birthday falls on a weekend, from 8.30am on her birthday until 8.30am the following day or before school if the following day is a school day.
10.That the Mother use her best endeavours to prevent her parents, [Mr and Ms Doyle Snr] from being present or attending any changeover pursuant to Orders 5.2, 5.3, 5.5, 7, 8 and 9 hereof.
11.That the parties be restrained and use their best endeavours so as to prevent any other person from:
11.1.Making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of any of the children; and,
11.2.Discussing these proceedings with or in the presence or hearing of any of the children.
12.Each of the Mother and Father shall:
12.1.As soon as practicable keep the other party informed in relation to any significant health problems experienced by any of the children when they are in their care including any medical emergencies and hospital treatment required by any of the children.
12.2.Provide all authorisations and directions as may be necessary for all health care professionals consulted by any of the children so as to provide to the other party all of the information and material held by them in relation to each child.
13.That both parents shall keep the other parent informed at all times of their current residential address, residential telephone number, mobile telephone number, facsimile number and email address as may be applicable.
14.That the parent with whom the children live with or spend time with is to make available to them a telephone to communicate with the other parent and do all acts and things to facilitate the telephone call and for the purpose of this Order, the Mother shall:
14.1.provide the children with privacy to communicate with the Father and shall not remain in the same room as the children during their telephone communication with the Father;
14.2.request that the other members of her household provide the children with privacy to communicate with the Father;
14.3.ensure that the telephone is not on speakerphone during the time that the children communicate with the Father.
Property orders
15.That the Husband receive, taking into account the assets and liabilities in each of the parties’ respective possession, custody or control pursuant to these orders, a sum equivalent to 50 [per cent] of the net assets as determined by the Court and that the Wife receive the balance.
16.That within 42 days of the making of these Orders the Husband shall do all acts and things, sign all documents necessary to transfer to the Wife his right, title and interest in the [Suburb E] home.
17.Simultaneously with order 16 hereof, the Wife shall do all acts and things, and sign all documents and pay all sums of money necessary to:
17.1.Discharge the [Suburb E] Mortgage; and
17.2.Pay to the husband, an amount equal to 50 [per cent] of the net pool of assets as determined by the Court taking into account the assets that he is to retain pursuant to these orders.
18.That the net proceeds of sale of the [Suburb L] property be paid to the husband and the wife in equal proportions.
19.That the furniture and contents contained in the [Suburb E] property and the furniture and contents removed by the wife from the [Suburb E] property be divided equally between the parties and for that purpose the Wife is to prepare two lists of furniture and contents of similar value and the Husband is to select one of those lists.
20.Declaration that other than is provided by these Orders, each party retain all other assets in their possession, custody and control as at the date of these Orders.
21.That pursuant to s 106A of the Family Law Act 1975 the Registrar or Deputy Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all deeds and documents in the name of the person to whom the direction is given and to do all acts and things necessary to give validity and operation to all such deeds and documents so as to give effect to these orders.
22.That in the event that the Wife does not comply with Order 17 hereof:
23.That the [Suburb E] property be sold by private treaty and for that purpose the following shall occur:
23.1.The parties shall within 7 days of these Orders sign all documents and do all acts and things so as to:
23.1.1.Appoint [F Real Estate Agents] of [G Street, Suburb H] in the State of New South for the sale of the [Suburb E] property, the costs of and incidental to such appointment to be borne by the parties as and when they fall due;
23.1.2.Instruct [I Lawyers] of [J Street, Suburb E] in the State of New South Wales to prepare a contract for the sale of the land for the [Suburb E] property, the costs of and incidental to such appointment to be borne equally by the parties on completion of the sale;

23.1.3.Execute all documents requested by the selling agent and the solicitor for the sale of the [Suburb E] property;
23.1.4.Execute all other documents necessary to complete the sale of the [Suburb E] property;

23.2.The parties shall cooperate in every way with the agent as and when required and refrain from doing or saying anything to hinder or prevent a sale being effected.
23.3.On settlement of the sale of the [Suburb E] property, the proceeds of sale shall be paid in the following manner and priority:
23.3.1.all costs and expenses incurred on the sale including legal costs and disbursements, agents commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
23.3.2.the amounts required to pay all municipal and water rates outstanding with respect to the [Suburb E] property;
23.3.3.the amount required to discharge the [Suburb E] mortgage;

23.3.4.the balance to be paid to the parties in equal proportions.

24.That the wife pay the husband’s costs of and incidental to these proceedings on an indemnity basis.

The Independent Children’s Lawyer seeks parenting orders in terms of a Minute of Orders handed up on 5 September 2012 as follows:

1.That all prior parenting Orders be discharged.
2.That the mother, [Ms Doyle] born on … 1971 and the father, Mr Winters born on … 1973 have equal shared parental responsibility for the children [B] born on … 2004 and [C] born on … 2006.
3. That the children live with the father:-
a. During school terms commencing the first Friday after the making of Orders, in alternate weeks from the conclusion of school on Friday until the commencement of school on the following Friday, noting that the father's responsibility for the children shall extend until the conclusion of that school day
i.For the purpose of this Order, the father shall be responsible for ensuring that the children are collected from and delivered to school during the time that they are living with him

ii. Following the resumption of each school term, the children shall re-commence living with their father on the first Friday of the new school term if the children have lived with the father for the first half of the school holidays and on the second Friday of the new school term if the children have lived with the father for the second half of the school holidays

b. During school holidays at the end of Terms 1, 2 and 3 in accordance with the pattern established in Order 3)a) with changeovers which can not take place at school taking place at the home of the parent whose live with period has concluded unless otherwise agreed between the parties
c. For half of the school holidays at the end of Term 4 by agreement between the parties and failing agreement for the first half in 2012 and alternate years thereafter and for the second half in 2013 and alternate years thereafter, subject to the provisions of Orders 4 and 5
i. For the purpose of this Order, school holidays shall be deemed to commence at the conclusion of the last day that children are required to be at school in Term 4 and shall be deemed to conclude at the commencement of the first day that children are required to be at school in the following Term 1

ii.For the purpose of this Order, changeover during the school holiday period shall take place at the home of the parent whose live with period has concluded unless otherwise agreed between the parties

d.Each Fathers' Day from 9am until 6pm if the children are not otherwise living with the father

i. In the event that the children are not otherwise living with the father, the mother shall deliver the children to and collect the children from the father's home (or other location agreed between the parties) on Fathers' Day

e. At other times and under such conditions as agreed between the parties.
4. Notwithstanding any other Orders, the children shall live with the father:-
a.From 6pm Christmas Day until 6pm Boxing Day in 2012 and alternate years thereafter unless otherwise agreed between the parties

i. For the purpose of this Order, the mother shall deliver the children to the father's home on Christmas Day unless otherwise agreed between the parties

b.From 6pm Christmas Eve until 6pm Christmas Day in 2013 and alternate years thereafter unless otherwise agreed between the parties

i. For the purpose of this Order, the mother shall deliver the children to the father's home on Christmas Eve and the father shall return the children to the mother's home on Christmas Day unless otherwise agreed between the parties

5. Notwithstanding any other Orders, the children shall live with the mother:-
a.From 6pm Christmas Eve until 6pm Christmas Day in 2012 and alternate years thereafter unless otherwise agreed between the parties

i. For the purpose of this Order, the father shall deliver the children to the mother's home on Christmas Eve and the mother shall deliver the children to the father's home on Christmas Day unless otherwise agreed between the parties

b.From 6pm Christmas Day until 6pm Boxing Day in 2013 and alternate years thereafter unless otherwise agreed between the parties

i.For the purpose of this Order, the mother shall deliver the children to the father's home on Christmas Day and the father shall return the children to the mother's home on Boxing Day unless otherwise agreed between the parties

6.The children shall live with the mother at all times other than when they are living with the father in accordance with Orders 3) and 4).
7.The children shall live with the mother on Mothers' Day from 9am until 6pm if the children are not otherwise living with the mother.
a. In the event that the children are not otherwise living with the mother, the father shall deliver the children to and collect the children from the mother's home (or other location agreed between the parties) on Mothers' Day

8.The mother and father shall each take all steps necessary to ensure that they are each able to receive copies of information from the children's school(s), including school reports, newsletters, notices and school photograph order forms.
9.The mother and father are each entitled to attend any and all school functions to which parents are invited, including parent/teacher interviews, subject to the convenience of the children's teachers.
10.The mother and father shall each make the children available for telephone communication with the other parent each Tuesday no earlier than 5.30 pm and no later than 7pm with the parent who does not have the children in their care to initiate the call to the other parent.
11.The mother and father shall each facilitate any reasonable request by the children, or either of them to have additional telephone communication with the other parent.
12.The mother and father shall each create and use a dedicated e-mail address to discuss issues concerning the children and shall take all reasonable steps to ensure that the children do not have access to any e-mail discussion
a.The mother and father shall use e-mail to notify the other of invitations received by the children to attend birthday parties and other social events and the mother and father shall not accept invitations without first seeking the other parent's consent which shall not be unreasonably withheld

b.The mother and father shall use e-mail to propose extra-curricular activities for the children and shall not enrol the children in any new extra-curricular activities without the other parent's prior consent

c. The mother and father shall use e-mail to discuss issues of concern in relation to the children's general health, academic progress and well-being.

13. The mother and father shall use their best endeavours to ensure that the children attend upon one general medical practice for routine medical matters and shall each provide any necessary authority for the other parent to liaise with the children's treating medical practitioner(s) about diagnosis, prognosis and treatment.
14.The mother and father shall each comply with all recommendations of medical practitioners and allied health professionals.
15.The mother and father are each restrained from discussing these proceedings or the issues in these proceedings in the presence or hearing of the children.
16.The mother and father are each restrained from denigrating the other or members of the other's extended family in the presence or hearing of the children and shall take all reasonable steps to ensure that no other person denigrates the other parent or members of the other parent's extended family in the presence or hearing of the children.
17.The mother and father are each restrained from changing the children's school enrolment without the prior written consent of the other.
18.The mother and father shall each keep the other informed of their current residential addresses and telephone numbers.
a.The mother and father shall each provide the other with no less than 28 days' written notice of any intention to change their residential address.

b.The mother and father shall each notify the other within 3 days of any change in their contact telephone numbers.

The Hearing

The hearing was fixed for five days commencing on 6 February 2012. The parties settled a trial plan but were not able to adhere to it. A witness on subpoena was declared unfavourable and her cross-examination was unexpectedly extended. The husband’s cross-examination on behalf of the wife was also extended, largely for reasons outside the control of the wife’s counsel. The parties agreed that two further days would be needed. Subject to any up-dating evidence, the lay witnesses were concluded on 10 February 2012. The matter was adjourned to 26 and 27 July 2012 for the evidence of the single expert and submissions.
On the morning of 26 July 2012 the lay evidence was updated by the filing of further affidavits of the parties and they were again cross-examined. The single expert was not available until the afternoon of 27 July 2012 and therefore there was no time for final submissions on that day. By arrangement with the parties the matter was adjourned to 5 September 2012 for submissions. On 5 September 2012 oral submissions were made and judgment was reserved.

Documents read

The wife relied on the following documents:
1.Affidavit of Ms Doyle sworn 22 December 2011 filed 9 January 2012;
2.Affidavit of Ms Doyle sworn and filed 20 July 2012;
3.Affidavit of Ms M filed 20 October 2011;
4.Affidavit of Ms Doyle Snr filed 18 January 2012;
5.Affidavit of Mr Doyle Snr filed 18 January 2012;
6.Affidavit of Ms N filed 23 January 2012;
7.Affidavit of Ms O filed 23 January 2012;
8.Notice of Child Abuse or Family Violence filed 16 March 2011; and,
9.Financial Statement filed 20 October 2011.
The husband relied on the following documents:
1.Affidavit of Mr P Winters sworn 20 December 2011 and filed 21 December 2011;
2.Exhibit “BW-1” referred to in the Affidavit of Mr P Winters;
3.Affidavit of Mr P Winters sworn and filed 20 July 2012;
4.Financial Statement of Mr P Winters sworn on 20 December 2011 and filed 21 December 2011;
5.Financial Statement of Mr P Winters sworn and filed 20 July 2012;
6.Affidavit of Ms Q Winters sworn on 19 April 2011 and filed on 29 April 2011;
7.Affidavit of Ms R Winters sworn on 21 April 2011 and filed on 29 April 2011;
8.Affidavit of Mr S sworn on 6 May 2011 and filed 9 May 2011;
9.Affidavit of Mr T Winters sworn and e-filed on 18 October 2011;
10.Affidavit of Ms U sworn on 18 October 2011 and e-filed on 19 October 2011; and,
11.Affidavit of Ms V Winters sworn and e-filed on 19 October 2011.
The following single expert evidence was read:
1.Magellan Report dated 14 April 2011; and,
2.Single Expert Family Report by Dr W dated 20 July 2011.

Short history

The wife was born in 1971 and, at the commencement of hearing, she was 40 years of age. The husband was born in 1973 and, at the commencement of hearing, he was 39 years of age. The parties married and commenced cohabitating in 2003. The parties separated under one roof in about December 2010 and on 5 February 2011 the wife (and children) left the former matrimonial home. The parties’ divorce became final on 6 May 2012.

Children

There are two children of the marriage:
B Winters (“B”) who was born in 2004 and as at the date of the hearing he was seven years of age; and
C Winters (“C”) who was born in 2006 and as at the date of hearing she was five years of age.

The main focus of the proceedings, the written and oral evidence and submissions was the parenting dispute. It is convenient for me to deal with that issue first.

Background facts

A chronology in respect of the parenting issues was settled by learned counsel for the ICL. There is some ambiguity in the history, presumably reflecting factual disputes on the written evidence. I have made minor non-controversial corrections but otherwise the chronology is as follows:

1971

Mother born.

1973

Father born.

1988

Mother attempted suicide by taking an overdose of Phenergan pills and was referred to and attended upon Dr X.

1988

Mother asserts that she attempted suicide a second time by sniffing liquid paper.

1988 – 1993

Mother asserts that during counselling she remembered being abused as a child by a Mr UU who was an older church member.

1991-2001

Mother suffered Chronic Fatigue Syndrome.

1991-2004

Mother attended Y University and obtained BA Dip Ed & PhD.

End 1993

Mother asserts that after dealing with the abuse by Mr UU and whilst praying to God to show her any unresolved issues, she had a vision of herself as a baby being molested and following discussions with her mother it would appear that the mother asserts that when she was a baby spending time in Z Family Care Centre that she was abused by a male nurse. She says that she continued to see visions of herself being abused. She says around this time she attended a conference in Sydney run by AA Ministries based in America.

1994

Mother spent nine months with the a Christian Fellowship in America and received assistance through prayer.

1995

Mother saw psychologist in relation to childhood sexual abuse.

1997

Mother made a report to the Police about the abuse that she suffered as a child.

2002

Father asserts that prior to marriage the mother advised him that she had been sexually abused for a period of three years from the age of eight years.

Father asserts that prior to marriage the mother advised him that she was diagnosed as having a personality disorder, had tried to kill herself when she was in Year 10 by cutting her wrists and sniffing liquid paper.

11 January 2003

Parties marry and commence cohabitation.

2003

Mother asserts father discloses he touched his three month old baby sister’s vagina when he was 16.

Father asserts he told the mother that he looked at his sister’s vagina when she had no pants on and touched her on the leg so that he could see.

April/May 2004

Mother asserts that she was raped by the father on three occasions – denied by the father.

Ms N asserts that the mother disclosed rapes in late 2004.

Maternal grandmother asserts that the mother disclosed rapes to her in 2007 and expressed concerns about whether father had sexual problems.

2004

B born to the parties.

September 2005

Mother graduates with PhD.

July 2006

Parties and B move to live in Suburb E.

2006

C born to the parties.

30 March 2007 –   2 April 2007

Mother hospitalised for gall bladder surgery.

Father cared for B whilst mother was hospitalised.

3 October 2007

Mother alleges that father was critical of her wanting to “rush the children off to the doctor” and told the mother that she could not take B. She did so and asserts that the grandparents found B had “a nasty ear infection which required antibiotics”. At around this time the mother also asserts that B had been born with a hole in his heart and was due for review. She says that the father said B would be fine, that it was a waste of time and money and that he did not need to go for his check-up. The mother took him regardless of the father’s refusal.

December 2007

Mother suffered second miscarriage (first one prior to birth of B). Mother asserts that the father cared for B “for a few hours” whilst she went to hospital for a curette.

December 2007 – March 2008

Mother asserts she and father attended counselling in relation to sexual bullying (timeframe different) but father asserts mother brought up issues of sexual bullying and rape and he said he was sorry if his behaviour had been inappropriate.

December 2007 – July 2010

Mother asserts that she suffered six miscarriages.

2007-2008

Father asserts that the mother threatened to kill herself.

2007 – 2010

Father asserts that the mother was violent towards him during arguments.

2008

Father asserts that during an argument the mother struck him on the chest with a closed fist resulting in his rib cage being sore for five days.

19 April 2008

Maternal Grandparents purchase house and move to reside next door to the parties and children.

December 2008 – April 2009

Father asserts that he and the mother attended counselling.

January 2009

B commenced attending pre-school at
BB preschool 2 days a week.

2009

Mother asserts that C became upset about the father being nude in bed and on occasion attending to her during the night without clothes on.

Mother asserts that she saw a photo taken of the father’s naked bottom. She says she deleted the photo. She says that she subsequently found photos of the husband’s penis and of him urinating and then when confronted the husband said that B had taken the photos.

2009

Father asserts that during an argument the mother took a serrated knife from the kitchen drawer, held it in her right fist at shoulder height and pointed it towards him. Mother and father argued and mother stabbed the lounge chair with the knife causing the fabric to tear.

24 September 2009

Mother had ultrasound which indicated non-viable pregnancy.

September 2009

Father asserts Mother told him that she had been diagnosed with borderline personality disorder – explained by the mother.

October 2009

Mother asserts that the father cared for the children “for a few hours” whilst she attended hospital.

November 2009

Father asserts that the mother advised him that she had been diagnosed with borderline personality disorder.

Early 2010

Mother asserts that the father took the children away for the weekend with a church home group.

January 2010

C commenced attending pre-school at BB preschool 2 days a week.

B commenced kindergarten at CC School. Mother asserts that B was ill with nine viruses in an
8 ½ week term.

February 2010

Father commences employment with DD Pty Ltd (his current employer) working 30.5 hours per week.

April 2010

Father asserts mother threw his work bag at him which hit him on the head and that she also threw his bike onto concrete. Mother concedes items thrown but denies father hit on head.

Mid 2010

Father asserts that the mother became unhappy with members of their congregation and the church itself and changed to attend a different church at Suburb CC.

Mid 2010

Mother asserts that following x-ray B’s tonsils and adenoids were found to be enlarged blocking up to 80 per cent of his airway.

July 2010

Mother concedes she stabbed lounge during course of argument but denies the father’s assertion that she also pointed the knife towards him.

15 July 2010

Mother had surgery in relation to ectopic pregnancy. Mother asserts that the father cared for the children overnight.

20 July 2010

Mother asserts father masturbating first of all in their bed and then when she told him to get out of the bedroom that he went into the spare bed in the children’s bedroom and that she followed him and found him “about to masturbate” – denied by father.

Term 4 2010

Mother asserts that B was not well enough to attend school for more than half days.

October 2010

Father asserts that the mother threw his work bag at him and hit him on the head and threw his bike onto concrete – mother concedes items thrown but denies father hit on head.

10 December 2010

Parties separate under the one roof.

21 December 2010

Father asserts that the mother was violent towards him including pinned him to the lounge, struck his face and arms with an open hand, scratched his face, tried to punch him in the face with a closed fist, grabbed him on the arms and head with her hands.

Mother concedes she sat on father’s chest and banged on it with an open fist, scratched his face with her fingernails but denies striking father with open hand or punching him with closed fist – asserts some fighting was mutual.

25-29 December 2010

Father and children travel to Canberra and spend time with the paternal grandparents.

January 2011

C commenced attending pre school three days a week.

10-21 January 2011

Mother attended a two week course during which time the children were cared for by the father from 8.45 am to 4 pm each day. Mother asserts that she proposed her mother care for the children but that the father said he would take time off work to care for them.

13 January 2010

Mother asserts she received call from Dr’s secretary offering an earlier date for B to undergo surgery due to a cancellation.

15-16 January 2011

Father and children visit a friend in DD Town

17-19 January 2011

Father and children travel to Canberra and spend time with the paternal grandparents.

20 January 2011

Father took B to hospital to undergo a tonsillectomy however mother asserts that the operation did not take place because the father advised the surgeon that he did not consent as B’s symptoms had largely disappeared.

21 January 2011

Mother telephoned surgeon and advised that B’s symptoms had not disappeared and he still required surgery. Mother rebooked original proposed date but did not advise the father.   Mother acknowledges that she did not tell the father.

5 February 2011

Parties physically separate when the mother moves out of the home with the children and commences to live (next door) with her parents.

February 2011

Mother commences family dispute resolution process.

11 February 2011

B underwent tonsillectomy. Mother telephoned the father after the surgery to advise that same had been done.

12 February 2011

Mother asserts that the surgeon gave instructions about B’s recovery and need to protect from haemorrhage and infection – asserts that the father said doctors were conservative and have to cover themselves. Mother says B needs a full two weeks recovery.

14 February 2011

Father asserts that the time the children spent with him was substantially reduced with the mother stating that the children did not want to see or sleep with the father.

Father spent time with the children for about 90 minutes in the presence of the mother.

17 February 2011

Father attended maternal grandparent’s home and spoke with the children and the mother during which the mother said to the father she had been “Screwed over by you.” He asserts also that the mother advised him she did not qualify for parenting payments because of their property holdings.   Father says that B refused to go with him and that the father said “It’s time” and carried B to the former matrimonial home whilst holding C’s hand. He says that the mother followed and yelled “Help I need a witness, a witness for the Court. Dad run.”

Father assets that the maternal grandmother said “You take your hand off him you bastard.” The maternal grandmother called the police at the request of the mother. The father says that the mother struck him on the face with an open hand while he was still holding B. The maternal grandmother was at this time holding the father around the neck in a strangle hold.

19 February 2011

Father asked the mother to borrow the family car so that he could take the children to the zoo. Mother refused and asserts that she reminded the father that B needed to rest “for two full weeks to recover from surgery”.

As the mother was returning from the shop she noticed the father, and his parents walking down the street with the two children in the double pram. She pulled up, stopped on the wrong side of the road, stuck her finger up at the paternal grandmother. She acknowledges that the father told her he was “going for a little walk” but because she observed that the husband and his parents were carrying backpacks she did not accept what she was told. She said to the father “You are a fuck”. She then drove around the corner, parked the car and returned to the father and the children and attempted to take the pram from the father. She then refused to allow the children to remain with the father and his parents, phoned her parents who also attended. The mother did take the children home.

24 February 2011

Mother, father and the children attended B’s post-operative appointment with Dr EE. Report confirming surgery was necessary.

Mother asserts she had a conversation with her mother’s cousin who alleged that in 2003 she saw the father in the pool with his sister and that she saw him touch his sister’s breasts and push himself up against her”. Mother said to the father “I no longer trust you with the children without a supervisor. You can spend time with the children as long as it’s with someone I can trust.” When father enquired why the mother responded “I don’t want to talk about it over the phone. You can see them with someone I can trust”.

25 February 2011

Father spent one hour with the children in the presence of a friend. Father says that when they were to return to the mother, B became upset and started crying saying he didn’t want to “go back”. Father asked the mother if the children could sleep the night, mother refused.

26 February 2011

Father says he arranged for a friend Ms FF to be present and telephoned the mother and requested he spend time with the children. Father says that the mother didn’t accept his proposed “supervisor” saying I don’t trust Ms FF. I won’t send the kids around. You’re a child molester, you paedophile.

27 February 2011

Father says he arranged for a friend (Mr GG) to be present and telephoned the mother and requested he spend time with the children. Father says that the mother spoke with Mr GG at the end of which the mother refused to allow the father to spend time with the children.

Later that same day the father arranged for his friend Mr HH to be present and telephoned the mother and asked to see the children. Mother arrived at the former matrimonial home with the children and spoke with Mr HH. The maternal grandmother also arrived at the home and spoke with the father. Maternal grandmother called the police.

27 February 2011

Mother asserts that she made a report to Community Services in relation to her concerns regarding the children spending time with the father.

28 February 2011

Mother asserts she receives call from Community Services – father’s towel drying of C may be evidence of “grooming” … pieces “paint an alarming picture” … “views children as his possessions”   Mother also asserts that Community Services worker says “behaviours you are describing ring alarm bells” and “you need to actively pursue the matter to ensure your children are sage…”.

March 2010

Father says that during a telephone discussion with B he asked the father if he would like him to come over and asked his mother. Father asserts that he heard the mother tell B “Not unless it’s supervised” which B repeated to the father.

1 March 2011

Father participated in family dispute resolution process and attended intake interview.

3 March 2011

Father attended “Kids in focus” seminar.

11 March 2011

During telephone discussion with the father B said “I’m sitting on mum’s lap. You’re on speaker phone so it’s easier to hear.”

13 March 2011

Father asserts that the parties agreed that the children would spend time with the father while his sister Ms R was visiting. At 2.30 the mother told the father that the children did not want to spend time with him. Later that day the mother telephoned and asked if the father was home and said that the children now wanted to come. During the time C was with the father he asserts she said “I can’t come here unless it’s supervised.”

16 March 2011

Mother commences the proceedings.

20 March 2011

Father spent time with the children supervised by Mr S. At 4 pm the mother attended the father’s home. Father says that he asked the mother not to come in but the mother ignored him and collected items from the home. He asserts that the mother pushed him whilst in the home. He says that during the time the children were with him B said “Dad I don’t believe everything that mum says”.

2 April 2011

Father asserts that the mother attended the former matrimonial home initially with her father. He says that he asked the mother to leave and she refused. He says that when the mother pushed past him she said “Don’t assault me”. Father says that the maternal grandfather restrained him. He phoned the police. The maternal grandmother also attended at the home. Father called the police.

4 April 2011

Father asserts in telephone conversation with B he said “You’re always on speakerphone, that’s how we talk to you.”

13 April 2011

Mother took the children to see Ms II of JJ Counselling Services.

14 April 2011

Magellan Report released.

29 April 2011

Father filed Response.

3 May 2011

Father asserts that the mother proposed his time with the children be spent at the CWCS.

9 May 2011

Interim Orders made at hearing including the appointment of a Part 15 Expert (Dr W) and orders providing for the father to spend time with the children in the presence of his parents.

13-15 May 2011

Paternal grandfather ‘supervised’ the father’s time with the children.

20 May 2011

Maternal great grandmother died.

6 June 2011

Parties attended upon Dr W.

11 June 2011

Father asserts that B said to him “Dad, I don’t believe anything Mum says. You don’t always walk around the house nude” and “Dad, where are you going to live when we move back into the green house?”

21 June 2011

Father attended parent teacher interview with B’s teacher.

9 July 2011

Father asserts B says “Mum doesn’t live here but she owns the house though.”

13 July 2011

Mother asserts that C was observed by her and the mgm “poking her genitals with her right forefinger while naked and spread eagled on the floor in front of her mirrored wardrobe.”

14 July 2011

Mother asserts that C was observed by her again “poking her genitals with her right forefinger while naked and spread eagled on the floor in front of her mirrored wardrobe.”

26 July 2011

Mother asserts that C was observed by her and the mgm “poking her genital area with her right forefinger while dressed and spread eagled on the floor in front of her mirrored wardrobe.”

27 July 2011

Dr W’s Report released.

1 August 2011

Dr W’s report released. Mother alleges that after the father spoke with the children on 2 August 2011 and thereafter the children were reluctant to leave her and became clingy and issues arose with their separation from her to go to school, pre-school and spend time with their father.

2 August 2011

Father proposed extension of his time and removal of supervision.

8 August 2011

Mother asserts B very sad each day saying “I can’t leave you”.

9 August 2011

Mother asserts that C was observed by her “poking herself up and down between the urethral opening and the vagina with her right forefinger while naked and spread eagled on the floor in front of her mirrored wardrobe.”

11 August 2011

Mother asserts C saying to Father “No. I want to be with Mum more” and “Because I love Mum more”.

19-21 August 2011

Father asserts issues arose at changeover. Father alleges mother says “Just you wait until we get to court where it will all come out. We’re getting new evidence against you and the truth will come out and that is why I am not worried.”

22 August 2011

Mother asserts C woke coughing – mother notes she had “spent the weekend with the husband”.

Mother asserts she spoke to preschool director about father’s attendance at preschool and commented that living arrangements might change.

26 August 2011

Collier J made orders setting the matter down for trial.

2-4 September 2011

Father asserts issues arose at changeover and that the mother did not encourage the children to go with their father.

Mother asserts C insisted on being carried to father’s place and also that the children were very clingy after return from father.

8 September 2011

Mother asserts that she walked in on C naked in her bedroom touching her genitals. Mother notes C spent the previous weekend with the father.

15 September 2011

Mother asserts that B reports father made a rule that once they were inside the front step they were not allowed to return to mother for cuddle.

16 September 2011

Further issues at changeover.

Father asserts that since release of Expert Report mother carries C for changeover whereas previously she walked. Mother agrees issues with changeover and says she does encourage children to attend.

21 September 2011

Father asserts that the mother allowed him to take B to the school musical without the requirement for supervision.

24 September 2011

Father says that he requested variation to court orders to enable him to take the children to his parent’s residence in Canberra to attend a family gathering on the 14-16 October 2011. Mother refused to allow the father to drive the children to Canberra.

30 September 2011

Father asserts that he requested the children’s time on the October long weekend be extended to the Monday evening. Mother agreed that they could spend the additional day on Monday but not stay overnight on the Sunday.

22 September 2011

Father filed Application in a Case.

3 October 2011

Father sends email to mother about sending children to public school.

5 October 2011

Mother sends father email rejecting proposal to change school.

6 October 2011

Father sends mother email saying he does not agree to children going to CC School.

12 October 2011

Father sends mother email saying he needs to cancel enrolment by 14 October 2011.

14 – 16 October 2011

Mother and maternal grandmother drove the children to Canberra to spend time with the father and extended paternal family.

21 October 2011

Interim and interlocutory orders made.

6 – 10 February 2012

Proceedings listed for final hearing before Loughnan J.

On 2 March 2012 orders were made by consent by Johnston J as follows:
1.That orders and notations be made in accordance with the document titled Consent Parenting Orders marked Exhibit 1 as set out hereunder:
“BY CONSENT and pending the conclusion of the hearing on 26 and 27 July 2012:
1.Orders 1 and 2 of the Orders made on 9 May 2011 be and are hereby discharged.
2.That the children, [B] and [C], spend time with the Father as follows:
2.1.For a period of one month from the date hereof the children shall spend time with the Father each alternate weekend from the conclusion of school on Friday and until the commencement of school on the following Monday, with the Father to collect the children from school on the Friday and deliver the children to their school on Monday.
2.2. Commencing from one month from the date of these Orders the children shall spend time with the Father each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday, with the husband to collect the children from their school on the Thursday and to deliver the children to their school on the Monday.
2.3. Commencing two months from the date of these Orders, the children shall spend time with the husband, in addition to the time set out in paragraph 2.2, in the alternate week from the conclusion of school on Thursday until the commencement of school on the following morning.
2.4. That during the school holiday periods, the children shall spend the second half of the children's school holidays with the Father, from 9am on the Saturday through until the commencement of school on the Monday or whichever day in the following week school recommences, with the Father to collect the children from the Mother but to deliver the children to their school on the first day of the resumption of the next school term.
3.It is noted that the time the children spend with the Father is unsupervised.”
2.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.

Credit and Submissions

The evidence of the witnesses

There are issues that fall to be determined largely by reference to the testimony of the parties. Therefore credit is an issue. The following witnesses were called for cross-examination:
The wife gave her evidence clearly and apparently, thoughtfully. She did not resile from any significant aspect of her written testimony. Some of her evidence seemed bizarre and stretched credulity. For example, she gave evidence about receiving a vision from which she divined that she had been sexually assaulted as a baby of a few weeks of age, when her mother took her to a Family Care facility. Subsequently, her mother gave evidence to the effect that she too held concerns based on what she had observed at the Family Care facility and that the vision may have been accurate.
The wife was able to make some concessions in favour of the husband. For example she conceded that he played with the children.
It is the wife’s evidence that she changed her opinion about there being a risk to the children of sexual abuse by the husband after hearing the cross-examination of Ms KK and Ms LL. That resulted in her proposing a resumption of unsupervised time between the husband and the children soon after that evidence was given. This aspect of the wife’s evidence is hard to understand. The fact that it was necessary to issue a subpoena to her mother’s cousin so she would give evidence must have given the wife some concerns about what that evidence would be. This was perhaps more an issue of the wife’s judgment rather than her credit.
Sadly, these proceedings have resulted in a serious rift within the extended maternal family. The maternal grandmother, Ms Doyle Snr and her cousin, Ms KK have fallen out and in some aspects they gave entirely contradictory evidence in these proceedings.
Ms KK is a cousin of the wife’s mother. She was an extremely reluctant witness. Having declined to prepare an affidavit for the wife’s case, she was called in the wife’s case on subpoena and was declared an unfavourable witness. Ms KK was not a good witness. Her recollection of events was patchy and it was not easy to understand the gist of her evidence. With some input from her, an account of her observations and those of her daughter, Ms LL, of the husband at a pool party at the home of the maternal grandparents in 2003 was provided in writing to the wife, through the maternal grandmother. Although Ms KK said that the contents of that document are true, she objected to that document being relied on. She then said that the document drawn by the wife, based on that account and said to be corrected by reference to disclosures she made to the wife and her mother on 24 February 2011, includes details that are now not accepted by Ms KK, such as:
·    that the husband fondled his sister’s breasts rather than touched her chest;
·    the date of the pool party; and
·    the names of the husband’s sisters, which Ms KK says were not known to her.
It was Ms KK’s evidence that she was pressured to sign the document and that the wife and her mother reneged on a promise that they would not use the document in Court proceedings. Ms KK was not able to specify how she was pressured. Ms KK either signed a letter on 6 March 2011, containing a report that she knew was not true in material aspects or under focussed cross-examination by the wife’s senior counsel, senior counsel for the husband and counsel for the ICL, she gave false evidence in relation to several facts, before me. The maternal grandmother has terminated friendly relations with Ms KK and with her daughter, Ms LL. It seems odd that Ms KK would buckle under pressure from her cousin and yet when on oath before me, was able to resist the attentions of counsel. It also seems odd that at a family lunch on 24 February 2011, Ms KK first raised her concerns about the father’s conduct in 2003 and yet intended to convey only that his behaviour was outside the accepted standards of her family but was otherwise, not sexually inappropriate. If the conduct was not of significance, why bring it up all those years later?
Taken together, this means that Ms KK was not a reliable witness.
Ms Doyle Snr
is the wife’s mother. In taking the oath, Ms Doyle Snr made the responses emphatically and appeared to take her role as a witness very seriously. However, she is very much an advocate for her daughter and as she is entitled to do, apparently accepts without question what her daughter says. The result is that she is not an independent observer of events. Further, I do not accept her evidence to the effect that she does not dislike the husband. It beggars belief that she holds that view, given that she accepts for example, that he raped her daughter on several occasions. It transpired from her

cross-examination that her description[1] of the events of 17 February 2011 was incorrect as she did not actually observe part of the event she described.
[1] Paragraph 28 of the affidavit of Ms Doyle Snr.
Ms Doyle Snr set about gathering evidence to the disadvantage of the husband. Ms Doyle Snr said words to the effect that Ms KK’s disclosures about events at a pool party in 2003 were “just another piece of the jigsaw”. She sent an email[2] in late September 2011 to Ms LL in the following terms:
Oh [Ms LL], that’s wonderful news!!!!!!!!!!!!!!! Her main lawyer is Mr NN – (phone number)
At present, she stands to lost the children because she’s made an accusation which hasn’t been followed up. The judge therefore seems to assume she has just made it al up and he views that as being much worse than all of [Mr Winter’s] lies etc. The problem with sexual problems is always that no one usually sees them. He’s stupid enough to have acted inappropriately in front of both you and me when he towel dried [C] last year. When [Ms Doyle] says he raped her he just denies it and the dreadful psychiatrist declared [Ms Doyle] just doesn’t understand the sexual needs of a man. The judge has suggested to [Mr Winter] on Friday that he now needs to consider running a no contact case which would mean poor [Ms Doyle] would never see the children again, or at least until they’re old enough to make their own decisions. As poor [C] cries/screams having to go to her fortnightly access, often from the day (Thurs) before, there’s no way she would ever cope. [B] cries sometimes too but both absolutely run down our drive to return here. Both keep saying, and to [Mr Winters] sometimes as well, that they only want to live with Mummy.
[Mr Winter] was supposed to have the children next weekend but his parents can’t supervise for one of his weekends so a swap has been made, which now enables [Ms Doyle] and me to take the children to [the] wedding, on the [PP Region]. We fly our [sic] after school Friday and return Sunday night, far too short but the children are very excited to go in a plane and to see a wedding, all be it a different type, being on the sands of [OO Town]. Court orders only allow [B] to be taken out of school if he’s sick. [Mr Winters] even objected to them attending Mum’s funeral even though [Ms Doyle] did organise permission with the children’s lawyer through her lawyer. The sooner we can get [Mr Winters] out of our lives the better. Having him next door is the pits. Poor [Mr Doyle Snr] has lost 10 kg and is not coping. He wrecked his back and is in agony but I feel sure it’s not helped by the strain we’re all under. He’s not well enough to travel so will stay here with [Ms RR].
Love to all,
[Ms Doyle Snr]
[2] Exhibit 11.
Ms Doyle Snr was not credible when she asserted during cross-examination that by “the sooner we can get [Mr Winters] out of our lives the better” in the above email, she only meant she did not want him to live next door anymore. It is more likely than not that she intended the natural meaning of the quoted words.
Ms Doyle Snr made the following concession about the email in

cross-examination as follows:
Senior counsel for wife: Now, were you attempting in your email to [Ms LL] to paint a picture that was firstly exaggerated so as to win her approval and support to execute an affidavit in your daughter’s case?
Maternal Grandmother: Yes.
I am left with the strong impression that during 2011, Ms Doyle Snr was actively seeking to complete “the jigsaw” to the husband’s disadvantage in these proceedings.
The effect is that Ms Doyle Snr was not a reliable witness.
Mr Doyle Snr was a good witness. For example, unlike his wife he readily conceded that he did not like the husband. His evidence was not successfully challenged and I accept him as a witness of truth.
The husband was a very careful witness, to the point of being pedantic. He readily made concessions about some issues when asked. For example that it was inappropriate to argue loudly with the wife in the presence or hearing of the children. He conceded that it was inappropriate to physically seek to remove B from number 2 D Street, Suburb E on 17 February 2011, on an occasion when he went next door to collect him. He conceded that his behaviour was inappropriate in opposing the wife’s wish to follow through with a recommended three year check-up of B in respect of a hole in the heart.
On the other hand he would not concede that his involvement in the cancellation of B’s tonsillectomy planned for 20 January 2011, was inappropriate, when it plainly was. That is perhaps more an issue of judgment than credit.
The husband made concessions in favour of the wife but as with her evidence in relation to him, he quickly exhausted his description of her parenting strengths. By inference he conceded that the wife was capable of providing for the physical needs of the children. In my view, the husband generally sought to give accurate answers in cross-examination.
One issue in respect of which I thought the husband was unreliable was in relation to his disclosure of secrets to the wife before they married, including one to the effect that years before, when he was about 18 years of age, he had spread his naked baby sister’s legs and looked at her genitals. He would not concede that that conduct was inappropriate. There would be no reason for him to have retained that incident as a ‘secret’ if he was not ashamed or embarrassed about it, at least at some level. His conduct when he was 18 years of age is not relevant to these proceedings but the issue reflects on his credit.
Ms R Winters is the husband’s sister. She was not a good witness in the sense that, unremarkably, she did not have a complete memory of an event that occurred nine years ago when she was 12 years of age and her memory had been assisted by a recent discussion about that event with the husband. For example she could not recall that members of the wife’s extended family, such as Ms KK and Ms LL were also at that event. She was clearly strongly supportive of her brother. That said, I did not detect any attempt by her to deliberately mislead the Court.
Ms Q Winters is the husband’s sister. As with Ms R, she was not a good witness in the sense that, she did not have an independent memory of the 2003 event that occupied much of her cross-examination. She is several years older than Ms R and unlike her sister was able to remember that other members of the wife’s family were also present at the pool party. Her memory of the pool party in 2003 had been assisted by a relatively recent discussion about the event with the husband. She was clearly strongly supportive of her brother. That said, I did not detect any attempt by her to deliberately mislead the Court.
Ms LL did not resile from her affidavit. Ms LL gave evidence that was broadly consistent with that of her mother, Ms KK. It was her evidence that neither in 2003 nor today did she consider that the husband’s behaviour in the pool with his sisters was sexually inappropriate. It was her evidence that at all times she only thought it was behaviour that was too rough and in any event, outside behaviour acceptable within the rather conservative norms of her family. Ms LL was steadfast in the witness box and in the circumstances I cannot make a finding that she has set out to deceive the Court.
There was effectively no challenge to the evidence of the husband’s parents, Mr T and Ms V Winters Snr, nor to that of Mr S or Ms U. I accept them as witnesses of truth.
It is trite to say that the parents very much see the facts through the prism of their experiences and are not entirely objective. It is not appropriate to prefer the evidence of one of the parties over that of the other, on all issues. Findings, where possible, are made issue by issue.

Parenting Submissions

The submissions on behalf of the wife include:
·    It is important that the children remain in the primary care of their mother because she is and has always been their primary carer, the children have a closer attachment to her than they do to the husband and the children look to their mother for emotional support. It was submitted that the present circumstances are working reasonably well, and there is no basis for moving away from that arrangement.
·    It was submitted that the parents are unable to effectively communicate and any arrangement that would require more communication would not be in the children’s best interests. Senior Counsel for the wife said that, as a recent example of this, the wife emailed the husband about C attending orientation week at CC School and the husband refused to consent to her attendance. It was submitted that it does not make sense to remove the children from the wife in circumstances where she is able to care for the children before and after school and during school holidays, while the husband would be unable to care for the children during those times due to work commitments. It was submitted that it is nonsensical to place the children in after school care if the husband is working and cannot collect them from school, when they could instead be at home with their mother.
·    In response to the ICL’s proposal, it was submitted that the likelihood of the wife making further allegations is not negated to any greater extent under an equal time arrangement than in would under the current arrangement. Further, it was submitted that the husband has been spending significant, unsupervised time with the children for months and the wife has made no further allegations.
·    It was submitted that the application of the husband – that the children live primarily with him and spend alternate weekends with the wife – smacks of a desire to punish the wife and fails to appreciate the significant impact that would have on the children.
·    An arrangement whereby the children spend nine nights with the wife and five nights with the husband each fortnight was said to allow the children to have significant and substantial time with each parent, while leaving the bulk of schooling periods in the hands of one parent. It was submitted that this would maximise meaningful involvement yet minimise the likelihood of conflict to arise.
·    I have referred to other submissions made on behalf of the wife throughout these reasons.
The submissions on behalf of the husband include:
· It was submitted that the orders sought by the ICL cannot work and go against the weight of evidence. Instead, the orders should provide for the children to live primarily with one parent and that parent should be the husband. It was further submitted that the husband should have sole parental responsibility for the children. Under this arrangement, the husband would not become “power hungry”, but would be courteous to the wife and would consult her on issues. In contrast, it was submitted that the Court should be concerned about the wife having the majority of “the power”.
· I have referred to other submissions made on behalf of the husband throughout these reasons.
The submissions on behalf of the children include:
·    The ICL proposed an equal time arrangement between the parties, where the children spend seven nights per fortnight with each parent with changeovers to occur at the end of school on Friday afternoons. The current interim parenting arrangement, where the children spend five nights per fortnight with the husband, was said to be working well and suggests that a future arrangement of a similar kind is also likely to work well. It was submitted that an equal time arrangement would afford the children a meaningful relationship with both parents and would mean that the children experience week days, weekends and school holidays with each parent.
·    It was submitted that, just as one would say that a shared care arrangement requires a good level of communication between the parents, the converse applies. This was said to be because changeovers would be limited and any chance of face to face contact would be removed. It would also mean less communication than the current arrangement because “it puts in place a smooth week about transitional arrangement where each parent would get them up, get them ready, take them to school and deal with those aspects”. It was submitted that there would be less “to-ing and fro-ing” with an equal time arrangement and fewer items would need to be taken back and forth between the households.
·    It was submitted that the orders sought are necessarily detailed, as they remove the need for negotiation.
·    It was submitted that each parent has the capacity to provide for the physical needs of the children, however, there is an emotional risk to the children if they are unable to “experience their parents equally”. It was submitted that there is a real risk if there is an imbalance in time in favour of the wife because that would leave the balance of power with the wife and that would not be in the best interests of the children into the future.
·    I have referred to other submissions made on behalf of the ICL throughout these reasons.

PARENTING PROCEEDINGS

The Expert Evidence - The Single Expert

Dr W is a Child, Adult and Family Psychiatrist. He has considerable experience in the area of family and marital relationships and assessments for Family Law Court proceedings. He has many years experience as an expert witness.

Dr W conducted interviews with the family, including the maternal grandparents on 6 June 2011 and with the paternal grandfather on
10 June 2011. He spoke with the husband’s psychologist, on 8 June 2011.

The Approach to Parenting Proceedings

Parenting proceedings are determined on the basis of s 60CA of the
Family Law Act 1975 (Cth) (“the Act”). It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The task of identifying appropriate parenting orders starts with parental responsibility.
Section 61DA creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
It is important to put the process of fact finding into some context. Parenting proceedings often or usually invite greater attention to parenting weaknesses rather than strengths, to failings rather than successes. It needs to be understood in this case that it is an agreed fact that the children will be loved, supported and importantly, safe, with each parent. That conclusion necessarily follows from the range of proposals under consideration, which as a minimum call for the children to live unsupervised with each parent for overnight periods, including block holiday periods. For what it is worth, it is my observation that there is much to be admired about each of the parents. The wife was sexually abused as a child and that had an understandable impact on her and on her relationship with the husband. The wife suffered at least six miscarriages. Those events necessarily impacted on both parties. I had the opportunity to see the parties under cross-examination. Even under the highly professional ministrations of counsel in these proceedings, that was a stressful process. Nevertheless, in my view, each of the parties gave a good account of themselves. In turning to the issues in the case it is necessary to address the complaints made against each parent but in doing so, it should be remembered that the proceedings compare the proposals of two loving and competent parents.
Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3), respectively.
As with some other provisions of Act, s 60CC has been amended. The s 60CC amendments apply on and from 7 June 2012 but only for new proceedings.[3] As the legislation related to these proceedings the section specified the following considerations:

Primary considerations:

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

[3] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

In McCall & Clark (2009) FLC 93-405 the Full Court accepted the interpretation of Brown J in Mazorski & Albright[4] to the effect that a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. The Full Court also accepted the interpretation of Bennett J in G & C[5] that the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[4] (2007) 37 Fam LR 518.
[5] [2006] FamCA 994.
In Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed in that decision at 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Each of the parties proposed that there be substantial periods of time spent between the children and the other parent.
The background facts suggest that the wife has always been the primary care giver of the children. That is not to say that she is better suited to that role or that she must continue in that role, that is simply the way the parties arranged their lives and the division of labour within the marriage.
The background facts and the opinion of Dr W support a finding that there is a meaningful relationship between the children and each parent.
The parties have not always sought to promote those relationships. In these proceedings the wife sought to minimise the nature of the husband’s relationship with the children. According to her, the benefit to the children from that relationship is because the husband plays with them, the children love spending time with the husband and they find him to be a lot of fun and full of life. She said he makes them feel very special and loved. She said she thinks the children would like the husband to have more of an emotional connection with them.
The husband in turn, sought to minimise the benefits to the children from the wife. He allowed that she loves the children, brings a female perspective to her parenting and she offers an option instead of him. The husband can foresee no significant problems for the children on a change to live mainly with him.

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

‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Although originally raised in these proceedings, the wife no longer contends that the husband poses a risk of harm to the children. She has not witnessed the husband abusing either of the children. She said that her initial concerns largely arose out of his treatment of her, including raping her three times and using her as a sexual object, together with things she has been told about him and his sisters.
The wife conceded in cross-examination that she overreacted on occasions since separation including in the presence of the children and that she prevented the husband having the children at times, unnecessarily.
Although he gave evidence about the wife shouting at him in the presence of the children, it is implicit in the husband’s case that he does not contend that the wife poses a risk of harm to them. His concerns appear to relate to whether she can support his relationship with the children.
It was the unchallenged evidence of the husband that the wife was violent to him during the marriage. The husband deposed as follows:
63.On occasions during heated arguments between us between 2007 and 2010, [Ms Doyle] became violent towards me. During the marriage during such arguments she:
63.1    Struck me to my body with a closed fist;
63.2    Struck me to my face with an open hand;
63.3    Scratched my face with her fingernails; and,
63.4    Damaged objects in our home.
64.In approximately 2008 during one argument she struck my chest with a closed fist with such force that my rib cage was sore for 5 days.
65.In approximately 2009 during another argument, [Ms Doyle] took a serrated knife which had a blade that was approximately 12cm in length from the kitchen drawer held it in her right fist at shoulder height, pointed it towards me, and waved it around. I kept my distance from her and tried to diffuse the situation. Toward the end of the discussion she said in an aggressive tone, “this is what you do to me” and then stabbed the lounge chair with the knife causing the fabric to tear. She then said “Grrr” as and she proceeded to cut a slit in the chair approximately 20cm long and approximately 10cm deep. At page 18 of Exhibit “BW-1” is a copy of a photograph of the damaged lounge chair.
And later:
77.On 21 December 2010, [Ms Doyle] and I had a discussion about improving our relationship and marriage. She said to me words to the effect:
“I’ll give you two months to get yourself fixed up and demonstrate to me that you’re a changed man or else we’re getting divorced”.
I said to [Ms Doyle]: “It’s not all my fault, you have to take responsibility for your part.”
78.[Ms Doyle] appeared to me to be offended by my comment and became angry. I was sitting in a lounge chair and [Ms Doyle] was opposite me during the discussion. She then got out of her chair and placed her body on top of my body and pinned me to the lounge chair. She then struck my face and arms with an open hand, scratched my face with her fingernails, tried to punch me in the face with a closed fist and grabbed me on my arms and head with her hands. I did not retaliate however I did defend myself.
79.After a short period I managed to remove Ms Doyle from me and I stood up from the lounge chair. [Ms Doyle] then tried to forcibly push me out of the room and out of the house all the while still slapping and punching me and shouted said words to the effect:
“Get out of my house right now and don’t ever come back”.
She repeatedly said to me in a loud and angry tone:
“Fuckwit”
“Jerk. I hate you.”
“Narcissist”
“You are evil”
80.During this argument [Ms Doyle] said:
“I’ll tell the kids the truth and they are going to hate you”.
I then said to [Ms Doyle]: “What truth? You mean your truth?”
81.[Ms Doyle] was aggressive and abusive towards me and attempted to force me out of the house for approximately 40 minutes.
82.At pages 19 to 20 of Exhibit “BW-1” are photographs of injuries I sustained during the incident. Page 19 contains a photograph of my left bicep where I suffered bruising and page 20 shows the scratching to the left side of my face after [Ms Doyle] had struck me.
Apart from the detail of the lounge cutting incident, the substance of this evidence was not put in issue during the trial.
The husband’s concerns about the wife’s capacity to care for the children were said to relate to psychological and not physical harm. Even then, he said he would turn to the wife to care for the children in an emergency and said that if either child greatly missed the wife he would negotiate with the wife for her to have more time with them.
Dr W formed the view that both parents were capable of caring for the children and found no evidence to suggest that either parent posed an unacceptable risk to the children.

Additional considerations

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

Dr W did not interview C separately. In his interview with the children, B told Dr W “I like mum and dad for different reasons. I like dad for fun and I like mum for cuddles and for food which she says yes about.” Dr W believes the children want a close relationship with both parents and are clearly attached to both parents. Although they do not help to distinguish between the competing proposals, neither are B’s views inconsistent with any proposal.
It should be noted that at the time of the interviews the husband’s time with the children had been severely curtailed for about four months. That of itself could have lead to the characterisation by B of what he liked about his parents.
It is not argued that the views of the children are of importance in these proceedings.

(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

As I understand it, it is agreed that the wife undertook the primary parenting role with the children during the marriage. That is not to say that the husband was not loving and involved. Each of the parties conceded acting inappropriately in respect of the children. The orders sought by both parties suggest that they each consider that the relationship of the children with the other parent is an important one.
Mr S is a member of the church formerly attended by the parties and on many occasions he observed each of them with the children. He gave evidence in the husband’s case. In respect of each of the parties he thought the parties had a normal loving mother/father – child relationship with B and C.
In his observation of the children with their mother, Dr W said the children both appeared very pleased to be with their mother. He formed the view that the children were developing well in their mother’s care. In his opinion, the wife cares a great deal about the children and wants to provide well for them. He said the relationship between the wife and the children was strong and positive.[6]
[6] Expert report, page 21.
In his observation of the children with their father, Dr W said that both children were very happy and relaxed. He came to the conclusion that the husband cared a great deal about the children and was a capable caring parent who could adequately provide for the children.[7]
[7] Expert report, page 22.
As is mentioned above, in his interview with the children, B told

Dr W “I like mum and dad for different reasons. I like dad for fun and I like mum for cuddles and for food which she says yes about”.

Dr W believes the children want a close relationship with both parents and are clearly attached to both parents.

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

This criterion is at the heart of the concerns raised on behalf of the husband and by Dr W.
Dr W felt that the husband would be more capable than the wife of supporting the other parent’s relationship with the children.[8]
[8] Page 24 of the Report of Dr W.
Dr W was concerned that, if the children continue to reside primarily with the wife, there is a high risk that her anxiety and “preoccupation with sexual abuse” will dominate her thinking and that spurious allegations of sexual abuse could arise.[9] He explained that when there is a very anxious primary parent and children stay with the other parent, on their return there is almost always a period of checking, assessing or quizzing the children or at least observing them in a hyper-vigilant way. Children can start to respond to that parent’s anxiety and hyper-vigilance which then increases the parent’s hyper-vigilance, leading to the making of further allegations. In his opinion, if the children were to remain in the primary care of the wife, there is a risk that further allegations could be made against the husband. The recent history of the family supports those concerns.
[9] Page 24 of the Report of Dr W.
However, in cross-examination Dr W said that the change in the wife’s position in allowing the children to spend unsupervised time with the husband in recent months was positive and very impressive. He considered this to be a leap of faith for her and said it was encouraging. He also said that the children’s very positive relationship with the husband indicated that the wife has been able to shield the children from any negative opinion she may have of him.
It was conceded during submissions for the wife that she and the maternal grandmother do not hold the husband in high regard. In my view that considerably understates their depth of feeling against the husband. Notwithstanding that, it was submitted on behalf of the wife that this attitude has not affected the wife’s ability to foster a relationship between the husband and the children. For whatever reason, the children do in fact have a good relationship with their father, notwithstanding the views of the wife and her mother.
It was submitted for the husband that, in contrast to the wife, there is no evidence that he would not facilitate a relationship between the wife and the children and he holds no malice toward the wife.
It was submitted for the ICL that the wife has not demonstrated a willingness and ability to facilitate a relationship between the children and the husband. It was submitted that the children have maintained a good relationship with the husband, in spite of her, rather than because of her. It was submitted that the Court could not be confident that the wife’s facilitation of time between the children and the husband would continue into the future given her attitude toward the husband.
Dr W’s report was prepared before the wife’s proposals and attitude reportedly changed. An important element on which the recommendations in that report were founded was the likelihood that the wife would make future inappropriate allegations against the husband. However, in his oral evidence Dr W said he found the wife’s change of attitude to be positive, very impressive and encouraging. He also noted the children’s very positive relationship with the husband reflected well on the wife.
The fact that the children have a good relationship with their father, despite having far greater contact with their mother and her family since separation than with the father and his family, supports the mother’s case on this issue.
Dr W did not resile from his reported concern in relation to this issue and I accept that, notwithstanding his positive observations made in favour of the wife, there remains a concern for the expert in relation to the wife on this criteria. I share that concern. Apart from anything else, it is possible that the wife is not sincere in her expressed change of heart. It is possible that whether sincere or not, she will not be able to resist a future opportunity to demonise the husband. On the evidence the husband is more likely to support the wife’s relationship with the children than she is likely to support their relationship with him.

The husband organised and negotiated with suppliers.
It is the evidence of the husband that in relation to the Suburb L property once it was leased from July 2007 inspected the property from time to time and undertook gardening, repairs and cleaning during his visits. He organised quotes and repairs as required and attended to all of the financial aspects of the rental arrangement.
It is likely that the non-financial contributions of the husband greatly exceeded those of the wife.

Section 79(4)(c) contributions

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
It follows from the agreed evidence that apart from a few months in 2003 when the wife worked long hours, the parenting and homemaker role fell largely to her.
It is the evidence of the husband that he cleaned and maintained the external areas to the home and attended to the lawns and gardens. The husband managed the household finances and paid household expenses. The wife assisted with the gardens.
Although she attended to the majority of the domestic duties, while the wife completed her PhD (completed in October 2004) the husband also undertook some cooking, cleaning and vacuuming inside the home and laundry. He assisted with the editing of the wife’s thesis and provided computer maintenance.
It is an agreed fact that the homemaker and parenting contribution of the wife exceeded that of the husband.

Conclusion on Contribution

The parties agree that the contributions by and on behalf of the wife exceeded those by and on behalf of the husband. Although a range of findings was initially proposed by senior counsel for the wife (70 per cent to 75 per cent), when pressed it was submitted for the wife that the contributions were made in the proportions 75 per cent by and on her behalf and 25 per cent by and on behalf of the husband. It was submitted on behalf of the husband that the contributions favoured the wife in the proportions 60 per cent by her and

40 per cent by the husband.
This was a marriage involving cohabitation of nearly eight years (early 2003 to December 2010) but contributions of various types have spanned 10 years.
It was argued for the wife, that in summary, the injections of funds amounted to about $650,000 by and on behalf of the wife and $24,000 by and on behalf of the husband. Otherwise to separation, it is submitted for the wife that contributions were equal. After separation, the husband retained the benefit of his income and occupation of the former matrimonial home. The wife has supported herself and lived in her parents’ home.
Since separation, the husband had the use of the Suburb E property to the exclusion of the wife. Reflected in the characterisation of the pool of assets, the husband also had the use of a greater share of the parties’ joint funds to address, both joint and personal expenses.
In the context of a marriage involving contributions made during 10 years years, with a net pool of under $1,300,000 and where it appears that contributions were otherwise equal, the fact that with wife introduced about $600,000 more to the marriage than did the husband, is very significant. It is not just the injections for their own sake, these provided an important foundation to the acquisition of property by the parties.
The facts support the agreed position that the contributions by and on behalf of the wife were greater than those by and on behalf of the husband. This is not a mathematical exercise but it is appropriate to note the dollar effect of possible findings. For example, the contention made on behalf of the wife that her contributions represent 75 per cent compared to 25 per cent by the wife would result in a difference between the parties, in the context of a net pool of assets of $1,275,000, of about $637,500. It seems to me that such an outcome risks undervaluing the different but valuable contributions made by the parties apart from the injections of funds. On the other hand the finding proposed on behalf of the husband would result in a difference between the parties of about $255,000. In my view that outcome would be manifestly inadequate to reflect the quantum and effect of the injection of funds by the wife.
In my view the wife’s case is closer to the mark than that of the husband. The appropriate finding is that the wife made 70 per cent of the contributions and the husband 30 per cent. That would result in a difference between the parties of about $510,000.

The other matters in Section 79

Once contributions have been assessed, the other factors in s 79(4) need to be considered. They are:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the husband and wife.
Neither the husband nor the wife lives on income from a valuable matrimonial asset. Therefore the likely orders will not impact on the earning capacities of the husband and wife.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (c), (f), (ha), (j), (k) and (na).

(a) the age and state of health of each of the parties;

The wife was born in 1971 and is therefore 41 years of age. The husband was born in 1973 and is therefore about 40 years of age. There is no evidence about the parties’ current states of health.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The wife’s Financial Statement was sworn in October 2011 and is likely to be out of date. She provided some updating material in her subsequent affidavits. I take it that the wife’s weekly income is made up of child support of about $227.00 and a Single Parent Benefit which was $385 in October 2011. The wife lives with her parents. In October 2011 the maternal grandfather earned about $1,865 per week and the maternal grandmother, $1,153 per week. Although not acknowledged in her Financial Statement, it is my understanding that the wife receives assistance from her parents, not limited to the payment of school fees for the children.
According to her Financial Statement the wife’s expenses are:

Expense				Amount
Rent payable to her father				$300
Comprehensive motor vehicle insurance – NRMA				$15.00
Private Health Insurance – MBF				$63.00
Motor vehicle Registration –				$18.00
All other expenses				$1,164.00
Total	Wife	Children
Food	$400	$160	$240
Household supplies	$50	$30	$20
Telephone	$14	$14	$0
Motor vehicle - Petrol	$60	$15	$45
Motor vehicle - Maintenance	$15	$15	$0
Clothing and shoes	$85	$45	$40
Child activities	$60	$0	$60
Medical dental and optical	$35	$25	$10
Entertainment & hobbies	$70	$30	$40
Holidays	$90	$40	$50
Education expenses	$220	$0	$220
Chemist pharmaceuticals	$20	$15	$5
Books and magazines	$15	$5	$10
Gifts	$20	$10	$10
Hairdressing, toiletries	$10	$5	$5
Sub-total	$1164.00	$409.00	$755.00
Total				$1,560.00

The wife has a very significant weekly deficit. The evidence about the wife’s assets and liabilities is set out earlier in these reasons.
The wife was awarded a PhD in education from Y University in September 2005.
She has undertaken casual or part-time tutoring over the years and hopes to develop that work in the future. Therefore, the wife has unexercised earning capacity.
The husband receives about $2,136 per week in wages. Save when the children are with him, he lives alone in the former matrimonial home.

The husband deposes to the following expenses:

Expense				Amount
Income tax				$599
Mortgage payments – D Street, Suburb E – CBA account number 509096500				$200
Council and water rates				$55
Other mortgage payments: D Street, Suburb E – CBA account number …- $233				$233
Insurance premiums NRMA				$23
Health insurance premium - NIB				$17
Comprehensive motor vehicle insurance - AAMI				$12
Compulsory third party insurance				$9
Motor vehicle registration – motor vehicle 2 and trailer				$7
Child support				$227
Other expenses.				$908.00
Type of expense	Total	Husband	Children
Food[37]	$305	$255	$40
Household supplies	$25	$25	$0
House repairs	$29	$29	$0
Gas	$24	$16	$8
Electricity	$34	$24	$10
Telephone	$17	$17	$0
Motor vehicle - Petrol	$80	$40	$40
Motor vehicle - Maintenance	$25	$15	$10
Fares and car parking	$50	$45	$5
Clothing and shoes	$50	$20	$30
Child activities	$20	$0	$20
Child minding	$20	$0	$20
Medical dental and optical	$37	$22	$15
Entertainment & hobbies	$25	$25	$0
Holidays	$40	$30	$10

[37] The husband also discloses that he spends $10 per week on food per week for another adult. It is for that reason that the living expense sub-total seems incorrect.

Type of expense	Total	Husband	Children
Educational expenses	$5	$0	$5
Chemist pharmaceuticals	$4	$4	$0
Gardening lawn mowing	$2	$2	$0
Repairs furnishings and appliances	$15	$15	$0
Dry cleaning	$1	$1	$0
Books and magazines	$5	$5	$0
Gifts	$25	$15	$10
Hairdressing, toiletries	$4	$3	$1
Church offerings/ donations	$30	$30	$0
Post box / postage	$1	$1	$0
Bank fees	$7	$7	$0
Bicycle maintenance / repairs Computer and internet	$28	$28	$0
Sub-total	$908.00	$674.00	$224.00
Total				$2290.00

It is not suggested that the husband is not exercising his earning capacity.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The children will live with each of the parents but for the majority of the time, with the wife. Save for the wife’s casting vote in relation to medical matters, the parents will have equal shared parental responsibility. The wife will be assisted by her parents but the major parenting load will fall to her.

(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out the evidence in relation to the expenses of the husband and wife.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;

The husband has a substantial superannuation interest. The wife currently receives a Centrelink benefit but that could change if she is able to develop the tutoring business that she plans.

(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

The evidence suggests that the parties had the income and assets to enjoy a comfortable standard of living during the marriage but there is no detailed evidence of their lifestyle.
With the assistance of the wife’s parents the parties are content with the fee paying school attended by the children.

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

There is no evidence of either party undertaking further study. The wife plans to develop a tutoring business based on services provided from her home. From his comments about the past, I gather that the husband would not be sanguine about such a business proving a significant financial success.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

No submissions were made in respect of this issue. To the extent that the wife’s parents may be disadvantaged in respect of their debt by any order, they are on notice and have been involved in the wife’s case in these proceedings.

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

There were no relevant submissions on this issue.
The wife undertook the lion’s share of the parenting and homemaker contribution. That is likely to have assisted the husband maintain full-time employment throughout the marriage and since.

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The marriage is likely to have affected the wife’s earning capacity. The wife was largely out of the paid workforce during the marriage. She thereby lost the opportunity to acquire skills and the other benefits of a consistent period in the paid workforce, such as leave entitlements, superannuation, progression or promotion. However, the wife completed her higher education during the marriage and to the extent that her teaching qualification and doctorate make her attractive to the job market, she has also had her earning capacity enhanced by the marriage.

(l) the need to protect a party who wishes to continue that party's role as a parent;

This provision is not specifically relied on by either party although each of the parties gave evidence about limiting or tailoring their paid employment to accommodate their desire to be available for the children outside school hours.

(m)if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

I have set out what I know of the arrangements in the wife’s household.

(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

I am not confident that the current assessment is in evidence. In her latest affidavit the wife deposed that on 16 July 2012 she (and presumably the husband) had been advised that the rate for the period 2 April 2012 to 30 June 2012 would be changed because of the husband’s income. As far as I know the current liability for the husband is $227.00 per week.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Nothing comes to attention here.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the husband and wife.

Section 79(4)(f)

I have set out some of the earlier orders made in these proceedings. As is foreshadowed above, I intend to make parenting orders.

Section 79(4)(g)

I have referred to child support above.

Conclusion

Albeit presumably based in part on their proposals in relation to the findings in the pool and on the assessment of contributions, the parties agree that there should be an adjustment in favour of the wife. Relevantly, the submission on behalf of the husband, in the event that the children are to live predominantly with her, is that there should be an (unspecified) adjustment in favour of the wife. In that event the wife argued for an adjustment in her favour of 5 per cent.
Of the relevant matters arising from the remaining elements of s 79 the following favour an adjustment to the wife:
·    The husband’s income is substantially greater than that of the wife. There will be some adjustment of that through child support but there is no suggestion that the wife can aspire to an income of the order of that earned by the husband;
·    Albeit that the husband will play an important role in decision making and will spend significant periods with the children, the main parenting load will fall to the wife;
·    The wife contributed to the husband’s earning capacity and in turn her own earning capacity was adversely affected by the marriage. Although she acquired a teaching qualification and a higher degree, she has yet to fully or substantially commit to a professional career; and
·    The wife is marginally older than the husband and therefore he has the potential for more years of paid employment.
Arguing in favour of an adjustment to the husband there is:
· The settlement based on contributions alone would have the wife receive something in excess of $500,000 more than the husband;
· There are advantages and disadvantages to the holding of funds in the form of superannuation but the main asset available to the husband will be his superannuation and he is well short of an age when the advantages of superannuation can usually be realised;
In my view, the relevant matters are closely balanced. Subject to the caveat about the interdependence of the findings about the pool of assets and contributions, the parties each argued that there should be an adjustment in favour of the wife. In my view the proper adjustment is 1 per cent. In the context of this case, that represents about $12,752 and will cause a disparity between the parties of twice that sum.

Just and Equitable

The net assets have a value of $1,275,156.74 ($2,055,456.74 - $780,300). Of that, $1,130,684.74 is in the form of non-superannuation assets and $144,472 is in the form of superannuation.
If the net assets are divided in the proportions 71 per cent to the wife and 29 per cent to the husband then they will receive something of the order of $905,361 and $369,795, respectively.
Neither of the parties seeks a splitting order in relation to the husband’s superannuation interest. That leaves any adjustments to be made out of non-superannuation assets.
Each of the parties has expressed the orders they seek so as to allow the wife the opportunity to retain the Suburb E property.
If the wife retains the joint assets, including the Suburb E property and the associated debt, of the assets and liabilities that make up the net matrimonial pool, the wife has or has had the benefit of, the following assets :

Assets

Value $

D Street, Suburb E – Joint 1,100,000

Net proceeds of sale of K Street, Suburb L – joint 41,281

CBA savings account … – joint 195

Wife’s interim distribution from sale of K Street, Suburb L – wife 74,000

St George Bank account … – wife 548

ING Direct account … (B) – wife 1,249

ING Direct account … (C) – wife 3,577

ING Direct account …- wife 2,520

CBA MISA Offset account …- wife 6,078

CBA Complete Access account …- wife 6

764 IAG shares ($3.71 per share as at 24.07.2011) - wife 2,803

Motor vehicle 1- wife 24,000

Wife’s paid legal fees 329,652.80

Unisuper – wife 1,420

CBA loan account number … -163,925

CBA loan account number … -192,713

Loan from Mr Doyle Snr -325,528

Total $905,163.80

The wife would have to refinance the Suburb E property so as to protect the husband from his component of the mortgage.
If the husband retains the benefit of the balance of the assets he would have:

Assets

Value $

CBA Mortgage offset account … (CLOSED) – husband 23

427 LSI shares (USD$5.93 per share as at 25.07.2012) - husband 2,405

500 DD Pty Ltd Shares (USD$11.50 as at 25.07.12) – husband 5,462

Motor vehicle 2 - husband 8,000

Husband’s paid legal fees 233,607.94

Husband’s interim distribution from sale of K Street, Suburb L – husband 74,000

137 shares in DD Pty Ltd sold by husband on 20 July 2012 1,577

Australian Super – husband 143,052

St George MasterCard account number … – husband -4,802

CBA Visa Card account number … - husband -228

Loan from Mr T and Ms V Winters -79,000

Loan from Mr CD -10,000

Husband's solicitors – outstanding legal fees -4,104

Total $369,992.94

The practical outcome is dramatically affected by the fact that over $700,000 of the net assets no longer exist. The proposed outcome will leave the husband with his superannuation and little else and the wife with the Suburb E property and over $675,000 in debt. A splitting order would have provided some other options but may have excluded the parties’ aim of retaining the Suburb E property for the wife.
As to the form of the orders, the property orders sought on behalf of the husband do not seem to reflect the submissions made in his case and are not internally consistent. The orders sought on behalf of the wife call for the transfer of assets that do not need to be transferred and make no provision for the circumstance whereby the wife cannot refinance the Suburb E property. The latter omission may be explained by the wife having alternate finance in place but it would be prudent for me to address that contingency. The wife proposes that the Suburb E transfer be made within 28 days and the husband, within 42 days. Given the time of year I will adopt the husband’s proposal but will expressly allow for the parties to otherwise agree. The parties proposed orders deal differently with personalty in the form of contents, furniture and appliances and I recall no submissions being made on that subject. In the absence of any valuation evidence I will adopt the husband’s proposal. Again the parties are able to reach an alternate agreement.
The orders will provide for the outcome set out in the above tables rather than a strict division in the proportions 71:29. The issue will be complicated if the wife cannot refinance the property because the ultimate sale price and costs of sale are not known. The parties will have an opportunity to be heard in relation to the wording of the orders but in that eventuality I will attempt to provide for 71:29 per cent distribution overall. The idea is to avoid only one of the parties benefiting or being disadvantaged by any difference between the actual net sale proceeds and the figures agreed for these proceedings. Such a difference will be caused by the costs of sale and could occur if the property achieves a substantially different sale price to the value agreed by the parties. The agreed net value of Suburb E is $743,362 ($1,100,000 – ($163,925 + $192,713)). If the assets are to be divided in the proportions 71 per sent to the wife and 29 per cent to the husband then the wife would receive that figure plus an adjustment of $197. On that basis, if the Suburb E property has to be sold, the wife should receive $743,559. If the net proceeds of sale are less than $743,559, in order to maintain the percentage distribution identified by me, the husband should pay to the wife 29 per cent of the shortfall. If the net proceeds of sale are greater than $743,559, the excess should be divided in the proportions 71 per cent to the wife and 29 per cent to the husband.
The husband and wife will retain responsibility for any other debts in their respective names that have not been brought to account in the calculation of the net pool of assets.

Conclusion under Section 79

The parties achieved much during their marriage, including providing for their two children. Sadly, they spent a disproportionate amount of their assets on legal fees. Recognition is required of the injections of funds through the wife and a modest adjustment is required in her favour to effect a just and equitable settlement of their property.
I will make provision for the parties to bring the matter back before me in relation to the wording of the orders.

I certify that the preceding three hundred and forty two (342) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan.

Associate:

Date: 11 January 2013

In the Marriage of Hickey (2003) 30 Fam LR 355 at 370.

[2013] FamCA 911

11 January 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction

Assets	Value $
D Street, Suburb E – Joint	1,100,000
Net proceeds of sale of K Street, Suburb L – joint	41,281
CBA savings account … – joint	195
Wife’s interim distribution from sale of K Street, Suburb L – wife	74,000
St George Bank account … – wife	548
ING Direct account … (B) – wife	1,249
ING Direct account … (C) – wife	3,577
ING Direct account …- wife	2,520
CBA MISA Offset account …- wife	6,078
CBA Complete Access account …- wife	6
764 IAG shares ($3.71 per share as at 24.07.2011) - wife	2,803
Motor vehicle 1- wife	24,000
Wife’s paid legal fees	329,652.80
Unisuper – wife	1,420
CBA loan account number …	-163,925
CBA loan account number …	-192,713
Loan from Mr Doyle Snr	-325,528
Total	$905,163.80

Assets	Value $
CBA Mortgage offset account … (CLOSED) – husband	23
427 LSI shares (USD$5.93 per share as at 25.07.2012) - husband	2,405
500 DD Pty Ltd Shares (USD$11.50 as at 25.07.12) – husband	5,462
Motor vehicle 2 - husband	8,000
Husband’s paid legal fees	233,607.94
Husband’s interim distribution from sale of K Street, Suburb L – husband	74,000
137 shares in DD Pty Ltd sold by husband on 20 July 2012	1,577
Australian Super – husband	143,052
St George MasterCard account number … – husband	-4,802
CBA Visa Card account number … - husband	-228
Loan from Mr T and Ms V Winters	-79,000
Loan from Mr CD	-10,000
Husband's solicitors – outstanding legal fees	-4,104
Total	$369,992.94