FINDLAYSON & BLYTHE

[2014] FCCA 2046

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLAYSON & BLYTHE [2014] FCCA 2046

Catchwords:
FAMIY LAW – Parenting and property dispute – incomplete and unsatisfactory evidence – family report recommendations ambivalent – both parties being acceptable parents – history of split care between Wednesdays and weekends – tyranny of distance between parents homes – children to live with mother and spend time with father – no property to divide – inappropriate to split superannuation because of evidence inadequacy and relatively brief duration of the relationship.

Legislation:  

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant: MS FINDLAYSON

Respondent: MR BLYTHE

File Number: MLC 1902 of 2013

Judgment of: Judge Burchardt

Hearing dates: 25 and 26 June 2014

Date of Last Submission: 26 June 2014

Delivered at: Melbourne

Delivered on: 11 September 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Gates

Solicitors for the Respondent: South East Lawyers (Croydon) Pty Ltd

FINAL ORDERS

1. The parents retain equal shared parental responsibility of X born (omitted) 2007 and Y born (omitted) 2009 (“the children”). 

2. The children live with their mother. 

3. The children will spend time and communicate with their father:

   (a)Two out of three weekends from after school on Friday to 6:00 pm on Sunday;

   (b)Half of each term school holidays;

   (c)Half of the December/January holidays in two separate blocks; and

   (d)By regular telephone calls no more frequently than every second day. 

4. Each party shall retain all chattels presently in their possession and any superannuation to the exclusion of the other. 

5. The parties are to communicate with each other in relation to the children by email. 

6. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 1902 of 2013

MS FINDLAYSON

Applicant

And

MR BLYTHE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an unusual case involving both property and parenting issues.  By an amended application filed on 7 August 2013 the applicant mother seeks that the two children of the relationship, X, born (omitted) 2007, and Y, born (omitted) 2009, live primarily with her and spend time with the father (albeit including two weekends out of three).  She also sought a payment to her of $20,284 to adjust the parties’ property debt, 65/35, and a superannuation transfer of $14,965 from the respondent to the applicant to provide an equality of superannuation outcome. 

2. The respondent father seeks that the children live essentially with him and spend time with their mother and sought that there be no orders made as to property. 

3. For the reasons that follow, which will admittedly take a somewhat unusual format, I have decided to make final orders in respect to the children, who will live with the mother according to the regime she has proposed, and I do not propose to make any orders about property matters, including superannuation. 

The agreed or uncontroversial facts in the case

1. Although the parties have filed a certain amount of affidavit material in which they raise a number of competing factual assertions, looked at overall there is not in my opinion an enormous amount of factual disputation in this case.  The Family Report prepared by Ms M dated 19 May 2014 sets out in my view a largely uncontroversial history.  It will save a lot of time traversing the parties’ materials simply to extract parts of Ms M’s report. 

2. The mother was born on (omitted) 1968 and the father on (omitted) 1977.  They met in 2005, when they were apparently both working at the same place.  There is a dispute as to whether they commenced living together in December 2007 (see mother’s first affidavit) or December 2006 (recorded by Ms M as the mother’s version) or September 2005 (father’s version).  Given that separation took place in September 2012 (it is also asserted in the papers that separation was in September 2011, this being part of the generally confused factual position) this was not a lengthy relationship on any view.  In my opinion, nothing turns on the precise date of commencement of cohabitation.  Given X’s birth on (omitted) 2007, it seems unlikely to have been later than 2006. 

3. As Ms M records at paragraphs 3-5 of her report:

   “3.    Prior to the separation, Ms Findlayson consistently worked each Friday (4:00pm-9:30pm), Saturday (9:00am-6.30pm) and Sunday (8:00am-6.30pm) as a (occupation omitted) at (employer omitted).  Mr Blythe, who was employed as a (occupation omitted), tailored his work commitments to ensure that he was available to take care of X and Y, as well as Ms Findlayson’s older children from a previous relationship, when their mother was at work.  X and Y have not had the opportunities of experiencing both their parents spending quality time together with them on weekends.  Since they were infants, it has become their ‘normal routine’ to spend every weekend with their father, whilst their mother was at work. 

   4.    Following separation, X and Y have continued to live with their mother and spend each weekend with their father from Friday afternoon until Sunday at 5:00 pm.  They have only spent time with their mother on weekends during school holidays or on special occasions, including Mother’s Day. 

   5.    Ms Findlayson has alleged Mr Blythe was verbally, physically and emotionally abusive towards her throughout the relationship; this alleged abuse was not reported to police.  Despite the parents agreeing there were ongoing and increasing tensions between them, they continued to reside together until September 2012 when Mr Blythe left the family home in (omitted) and went to live with his mother in (omitted).  However, he continued to ensure he was available to care for the children in their home each weekend when their mother was at work and each Monday from after school and childcare until Ms Findlayson returned home.  Mr Blythe regularly bathed the children, prepared their dinner and put them to bed.”

4. Further to interim orders made before Judge Riley on 10 September 2013 X and Y lived with their mother and spent time with their father each weekend from after school on Friday until 5:00 pm on Sunday with changeover at (omitted).  They also spent half of each school term holiday with the father and have regular telephone contact with each parent. 

5. As Ms M recorded, neither changeover nor telephone time has gone smoothly, with each party blaming the other for the resultant difficulties. 

6. The mother had enrolled the children at (omitted) School in (omitted), where she was then living, and as recently as her interview with Ms M on 7 May 2014 the mother was asserting that the children would stay there, at least until the end of the school year, even though she had recently moved to (omitted).  In fact, however, and relatively shortly thereafter, and clearly on a unilateral basis, the mother enrolled the children at school in (omitted). 

7. A significant issue in the matter, at least from the parties’ perspective, was an alleged assault by the father on the mother in her home on

   
   

   10 October 2012.  The parties were due to discuss a number of driving fines allegedly run up by the father in a car registered to the mother, who therefore became responsible for the fines.  The mother asserted that the father assaulted her severely on this occasion and the father denied it. 

8. It is sufficient to say, and I will have more to say about the demeanour of the parties in due course, that although there was obviously an incident involving some pushing and pulling on this occasion, a police report subpoenaed (exhibit R5) relevantly says:

   “… A SHORT STRUGGLE HAS TAKEN PLACE WHERE HEATED WORDS WERE EXCHANGED IN FRONT OF THE PAIRS CHILDREN FOR APPROXIMATELY ONE MINUTE.  NIL PHYSICAL VIOLENCE HAS TAKEN PLACE JUST A STRUGGLE OVER THE PAPERWORK.  THE CHILDREN WERE UNHARMED DURING THIS INCIDENT.  THERE HAS BEEN NIL FAMILY VIOLENCE INSTANCES IN THE PAST BETWEEN THE RESPONDENT AND AFM.”

9. It is clear that the police took no action against Mr Blythe arising out of this incident.

10. The father has continued to live in (omitted) in a house formerly owned by his mother, who died in September 2013 (see Ms M’s report at paragraph 15). 

11. The father says that he was a devisee in equal shares of that property with his brother pursuant to his mother’s will.  From the evidence he gave, which I accept, it appears that he is paying rent of $300 per week to his brother, who has loaned him substantial amounts of money to cope with his debts, and he will pay his brother back over time.  The father’s evidence about his living arrangements strike me as being true and I therefore accept that, while he undoubtedly has an asset in the form of his half share in the house, he will not realise it for a considerable period of time.  I would observe in passing that it is a post-separation asset and one which I would exclude from the pool, were it necessary or relevant to do so.  It should be noted that the mother has not asserted that it ought to form part of the pool in any event. 

An overview of the parties’ evidence

1. The mother’s affidavit material and oral evidence can, in the circumstances of this case, be paraphrased shortly.  It is her case that the respondent father is extraordinarily difficult, domineering, aggressive and overbearing.  He constantly bullies the mother to change changeover so that it is closer to where he lives and obstructs her telephone time with the children. 

2. On financial matters the mother asserted that she had a certain amount of funds at the time the relationship commenced, but no evidence of any objective sort has been forwarded to quantify any such funds.  The father’s evidence is that he was in a like position. 

3. The mother’s evidence was that she is no longer working every weekend and seeks blocks of time in the summer holidays.  She said in her opening to the Court that she was flexible with her work and proposes to return to (occupation omitted) next year.  She said her biggest concern was the effect of separation from her upon the children and Y (who according to Ms M has some developmental delay) is very needful and that X is still struggling at school. 

4. The mother asserted that she wanted cooperative parenting arrangements and wants to be able to communicate well with the father. 

5. So far as finance was concerned she asserted that all that was left was debt.  There is $2,000 outstanding in respect of warrants arising from the father’s use of the car and there was otherwise really no property to be divided. 

6. The mother is in a new relationship with Mr B, commencing in September 2012.  Mr B has two daughters aged eight and six, who live with their mother and spend time with him each alternate weekend and half school holidays.  The children, X and Y, meet his daughters from time to time and the relationship between them seems satisfactory (see Ms M’s report at paragraph 35). 

The father’s position

1. The father’s position was essentially the obverse of that of the mother.  He describes the mother as being extremely controlling, making unilateral decisions regarding the children and he described to Ms M (see paragraph 37) feeling marginalised and ignored in relation to the children and the relationship. 

2. The father has re-partnered with Ms D, who appears to have a satisfactory relationship with the children. 

3. The father has expressed in his affidavit material and evidence concern at the mother’s parenting skills.  He maintains that the children are often unkempt or dirty.  I note that Ms M observed in paragraph 43:

   “Mr Blythe raised concerns about the children’s general appearance on the day of the interviews.  The report writer did not share these concerns; however acknowledges that given she had no physical contact with the children she might not have been aware that the children’s hair reportedly smelled.”

Findings about the evidence and the way in which it was given

1. As will be apparent, I am dealing with the evidence in this case in a very shorthand way.  That is because, as I say, there is in truth but little disagreement between the parties about most of the significant aspects of the history of the matter. 

2. It is however appropriate that I say something about the demeanour of the parties.  The mother’s evidence was given in an extraordinarily assertive fashion.  She presented in Court as extremely assertive and exceptionally argumentative.  I note that she had deliberately not returned to the father the numberplate (omitted), which has a strong sentimental connection and attachment for him, out of what appears to be nothing more than spite.  Some of the mother’s answers had the appearance of being made up on the run.  Her explanation that she could not afford to take a day off and lose her job to get an Intervention Order as a single mother with four children had all the appearance of being made up on the run. 

3. I note that enrolment of the children in their new school in (omitted) was quite clearly unilaterally imposed by the mother without any reference to the father.  The mother presented as a person who makes decisions herself and simply implements them. 

4. The mother has also impressed me as being somewhat careless with her information as to her finances.  Major changes had taken place since her Financial Statement was filed, but these were not incorporated into her materials in any way.  I note that she asserted under cross-examination that her superannuation has now declined from the $37,000-plus indicated in her Financial Statement filed 18 March 2013 to $17,000.  No materials directly supporting that proposition were presented to the Court. 

5. I further note that the mother conceded under cross-examination that she has not sought to have the question of the various car related fines sorted out by the Magistrates Court and it is clear that it is open to her to seek to address that matter in that forum. 

6. There is little to record of the father’s demeanour.  It was unexceptionable.  He was generally responsive to the relatively small number of questions that the mother chose to put to him.  I note that the mother elected not to traverse matters in greater detail than she did and given her self-representation, I would stress that this is not a matter for criticism or arising out of which I would draw any adverse inference of itself. 

7. I note that the parties appear to now agree that communication between them should be by email only. 

8. Against this background I move to consider the statutory pathway and its application in relation to parenting orders. 

Statutory pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

The application of the pathway

1. Before embarking upon this in any detail, it is appropriate to set out the evaluation section of Ms M’s report.  At paragraphs 57-65 Ms M said:

   “57.  This assessment concerns the future parenting arrangement for X aged 7 years and Y aged five years.  Their parents have been separated since September 2012.  Prior to this, both parents were actively involved in the day to day care of the children and X and Y clearly have had the opportunity to form significant relationships with both parents. 

   58.  From the time they were very young children, given the mother’s work commitments, X and Y seldom experienced both parents caring for them together.  X and Y have always spent weekends in their father’s primary care.  Their experiences of family outings as well as other common family centred activities, has been very limited. 

   59.  There are mutual allegations of verbal and emotional abuse and each parent has described the other as being controlling.  Ms Findlayson has also alleged that Mr Blythe was physically abusive towards her on a number of occasions.  Her affidavit filed on 07/08/2013 describes one incident of alleged physical abuse that occurred post-separation on 10/10/2012.  Mr Blythe has consistently denied any allegations that he has physically assaulted Ms Findlayson. 

   60.  The alleged family violence described by both parents is consistent with what the empirical literature identifies as Conflict Instigated Violence or Common Couple Violence.  This is characterised by hostile verbal exchanges over common disagreements that might on occasion escalate to physical altercations, including pushing, shoving, hitting and breaking things, initiated jointly or by one or other party over time.  Compared to Coercive Controlling Violence, power is relatively balanced and neither is particularly fearful of the other.  Exposure to these dynamics occurring between their parents is distressing and likely to impact negatively on the children. 

   61.  Mr Blythe’s general presentation and demeanour, as well as his account of the active role he played over a number of years caring for all four children in the household, suggests that he was compliant with Ms Findlayson’s expectations; rather than being intimidating, demanding and abusive, as described by her. 

   62.  While each parent clearly perceives the other to be wholly responsible, it is apparent that the parents have not been able to develop an effective communication strategy to enable them to focus on the children’s needs and to work collaboratively.  Both parents have advised they will be attending a Parenting After Separation; the report writer is cautiously optimistic that this will increase their understanding of their children’s needs from a developmental perspective, as well as a system to develop effective and respectful communication with each other regarding their children. 

   63.  It would appear that the current parenting arrangements for X and Y were made based on Ms Findlayson’s work commitments at that time.  Ms Findlayson no longer works on weekends.  Her proposal however, continues to be for X and Y to spend each weekend with their father, to be reviewed in 2016.  Ms Findlayson acknowledges that she is “missing out” on quality time with the children given the normal time pressures that existing during the week.  Although Ms Findlayson advised “I don’t want to reduce the father’s time with the children” the report writer remains curious as to why she is not seeking for the children to spend regular time with her on weekends and whether other needs are being prioritised above the need to spend time with her children. 

   64.  Given where each parent has elected to live, there are some significant geographical constraints for X and Y to be able to spend substantial time with both parents.  Neither parent has indicated any willingness/flexibility to consider living closer to each other, potentially ensuring each parent having easy access to the children’s school, extracurricular activities and social activities both now and in the future.  Such an arrangement would ensure that the children are not compromised in either parent’s care. 

   65.  Whilst each of the parent’s proposals makes provision for the children to spend regular time with the other parent, X and Y’s opportunities to be able to spend significant time with both parents, reflecting the nature of the relationships they have formed with both parents is limited.”

1. The recommendations made by Ms M included equal shared parental responsibility.  The writer also recommended half of each school holidays with each parent and time during the December/January holidays to occur in two separate blocks. 

2. Beyond that, Ms M left the matter up to the Court.  She took the view that whichever parent was better placed to provide the children with a stable environment meeting their physical, emotional, social and educational needs should be the primary carer with the other parent having two out of three weekends from after school Friday until 6:00 pm Sunday. 

3. No one sought to cross-examine Ms M and the Court has no further insight than those remarks.

Equal shared parental responsibility

1. The first task of the Court is to determine whether the presumption as to equal shared parental responsibility should be applied.  There has probably been family violence within the extended definition in the Family Law Act 1975 (“the Act”) on either side’s version of the events.  At the very least there was some pushing, pulling and shouting and carrying on in October 2012 and both parties agree that it was a strained relationship prior to separation. 

2. Nonetheless, I do not accept the assertions of the mother that the father was otherwise violent towards her and, in my opinion, such violence as there has been is not such to rebut the presumption.  I note that Ms M recommends it and that recommendation will be adopted. 

Equal time or substantial and significant time

1. It is plainly utterly impracticable and inappropriate to have equal time.  The parents live so far apart, and are not prepared to move any closer, that it is simply not possible for the children to attend school, no matter which parent they live with, because in the alternate week they would be far too far away to get to school.  Neither party seeks equal time in any event.  This puts to one side the costs of travel, which would be significant for parties who are not substantially well off. 

2. Likewise, the nature of the tyranny of distance between the parties makes substantial and significant time within the meaning of the Act an impossibility.

The orders in the children’s best interests

Section 60CC(2)(a) - The primary considerations

1. All parties agree that it is in the interests of these children to have a meaningful relationship with both of their parents.  I have already dealt with the issue of family violence.  In my view, there is no need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

2. In this regard I note that, while it is the father’s position that the children are neglected in the mother’s care as to their cleanliness and otherwise, Ms M did not support that finding.  And while the mother may be less concerned with having the children spick and span than the father, there is nothing to suggest that her deficiencies in this regard are so significant as to constitute any risk to the children’s wellbeing. 

The additional considerations

Section 60CC(3)(a)

1. The children have expressed no views about where they wish to live.  X was, as far as I can see, neutral when questioned by Ms M and Y was not questioned at all, given his age. 

Section 60CC(3)(b)

1. The children appear to have developed relationships with both parents according to Ms M.  They also appear to have, on what is necessarily somewhat sketchy evidence, a reasonable relationship with each of the new partners of their parents and the children of the mother’s new partner.  I note the latter relationship is at a very early stage and not of any great duration, both as to its time and periodicity. 

Section 60CC(3)(c)

1. This is not a matter which gives rise to significant criticism of either parent.  I note the very considerable and commendable endeavours made by the father to parent the children and the very considerable involvement he has had in this regard.  The arrangements prior to separation were close to equal in terms of parenting. 

2. I note the mother’s tendency to make unilateral decisions in relation to the children. 

Section 60CC(3)(ca)

1. Once again this is not a matter of major moment.  I share the concern expressed by Ms M as to why it is that the mother has been complicit in a situation where for a very long time she spent no quality time with the children at weekends.  This is a troubling matter, but I note that the recommendations made by Ms M would cause the mother to have one weekend in three with the children in any event. 

Section 60CC(3)(d)

1. This of course is the subsection which is at the heart of the dispute between the parties.  The mother wants the children to continue living with her during the week and the father wants them to live with him. 

2. There is, given the opacity of Ms M’s report, no really clear evidence to assist the Court in arriving at a definitive conclusion.  I fully accept that if the children were to live in his care, the father would have the children properly looked after and sent to school (something that appears to have been a difficulty according to the exhibited material). 

3. Nonetheless, the fact is that the children are doing at least adequately at school and the various developmental difficulties that have affected each of the children have been addressed while they have been in their mother’s care.  As the mother points out, the children have been in her primary care for the better part of two years since separation. 

4. The children have moved quite recently from (omitted) to (omitted) and they have had a change of school accordingly.  There has been but little time to evaluate how well that change has gone. 

5. If the orders sought by the father were to be made, the children would move yet again and move to yet another school.  They are of tender years, and constant moves would necessarily be difficult for them. 

6. In circumstances where prior to separation, and even indeed after, the children for a long time have lived with their mother during the week and their father on the weekends, it is difficult to evaluate what would happen if this regime were to be radically altered. 

7. Doing the best I can in these circumstances, where the evidence is scarcely compelling one way or the other, I think that the pattern of primary care by the mother should continue.  It will at the very least ensure that there is no immediate further disruption to the children’s lives. 

Section 60CC(3)(e)

1. Beyond the obvious difficulties arising out of the tyranny of distance to which I have already referred, this subsection adds nothing in the context of this case. 

Section 60CC(3)(f)

1. I see no reason to doubt that each of these parents in their own way is at least an adequate carer for the children.  While the evidence about the mother’s new partner (who was not called to give evidence nor required to participate in the family report process) is extremely sketchy, there is nothing to suggest that either he or Ms D represents any difficulty to the children. 

Section 60CC(3)(g)

1. There are a number of matters that arise to be considered under this subsection.  First it seems that Y has a measure of developmental delay and I note that his mother thinks that he is a needful child.  This goes to support the proposition just expressed, that a lack of change is more likely than otherwise to be beneficial to the children.  So far as the maturity and lifestyle of the parents is concerned, I note the mutual lack of insight is exemplified by the mutual blame that each parent apportions to the other, and I also note the highly dogmatic and assertive personality of the mother. 

Section 60CC(3)(h)

1. This is not relevant. 

Section 60CC(3)(i)

1. Subject to the reservation already expressed more than once about the curious lack of desire of the mother to spend quality time with the children on the weekends, there is nothing of any moment to be recorded under this subsection.  I accept that each of these parents is, in a general way, an adequate parent. 

Section 60CC(3)(j)

1. This matter has already been dealt with. 

Section 60CC(3)(k)

1. This is irrelevant. 

Section 60CC(3)(l)

1. This is a significant matter.  I have given some thought to making interim parenting orders and bringing the matter back with another family report in one year’s time.  This would give time for the relocation to (omitted) and each of the parents’ new partnerships to be more appropriately assessed and valued. 

2. The difficulty I have, however, is that to do this is highly likely in the circumstances with the personalities of these parties and their history to foment further bitter discord and dissention.  I note Ms M was cautiously optimistic that with the assistance of further counselling the parties would be able to move forward.  I share that optimism.  In my view, it is in the best interests of the children that this proceeding comes to an end now and the parents get on with arrangements as I will order them.  This will provide the children with stability and will remove the potential for further interim applications and/or further contest and stress of trial. 

3. On balance, I think the children’s best interests will be served by the introduction of a new and definitive final regime. 

Section 60CC(3)(m) – other matters

1. There are no such matters. 

2. In the circumstances therefore, I am going to order that the children live with the mother from Monday to Friday and spend two out of every three weekends with their father, together with holidays as recommended by Ms M and telephone time also as recommended by her. 

Property issues

1. The picture relating to the parties’ debts is scarcely clear.  Counsel for the respondent father submitted that the state of the evidence did not permit the Court to make property orders. 

2. It would appear that there are two cars in the mother’s possession.  The parties have some chattels and there are some various debts that have either been paid out (in the father’s case through substantial borrowings from his brother) and otherwise.  The issue of car fines can be dealt with through the Magistrates Court. 

3. In the very unusual circumstances of this case in my view there is simply nothing to be divided.  The parties have roughly equal incomes (or at any event income earning capacity). 

4. In all the circumstances it seems to me I should simply make orders leaving the parties where they are. 

5. So far as superannuation is concerned, it is not even clear what the true position is as to the parties’ superannuation.  It appeared at the commencement of the case to be not that disparate, but now for reasons unexplained it may be. 

6. No evidence has been given about how much superannuation (and both parties’ superannuation is modest) was accrued before the relationship commenced.  The relationship endured for a period of no more than some five or six years. 

7. In the circumstances, it would not be just and equitable to make a superannuation splitting order. 

Conclusion

1. For the above reasons, I will make the parenting orders as described and the property orders will essentially leave the parties where they stand. 

2. I will give the parties an opportunity to consider these reasons, as is my usual practice, in case there are any matters I have overlooked.  The parties will, inter alia, need to refine the orders as to holiday time. 

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  11 September 2014