FIORDAN & REESA

[2015] FamCA 1021

FAMILY COURT OF AUSTRALIA

FIORDAN & REESA [2015] FamCA 1021

FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the father – where equal time is impractical due to physical distance – where it is found the mother unlikely to facilitate a relationship between the children and the father – where the children have been exposed to the parental conflict – where the parties’ inability to communicate precludes a shared parental responsibility order.

FAMILY LAW – PROPERTY – small property pool – discussion of contributions – where the parties’ contributions were equal – where no adjustment under s 90SM is warranted.

Family Law Act 1975 (Cth) s s 4 s 4AB s 60B s 60CA s 60CC s 61DA s 62B s 65DA s 65DAA s 65DAC s 79 s 90SM
Evidence Act 1999 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Fiordan

RESPONDENT: Ms Reesa

INDEPENDENT CHILDREN’S LAWYER: Ms Everett

FILE NUMBER: TVC 393 of 2011

DATE DELIVERED: 20 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Mackay

JUDGMENT OF: Tree J

HEARING DATE: 25, 26 and 27 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mayes

SOLICITORS FOR THE APPLICANT: SR Wallace & Wallace

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Moore

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Everett’s Family Law

Orders

CHILDREN’S MATTERS

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the major long term care, welfare and development of the children D born … 2003 and B born … 2006 (“the children”).

3. The mother and father shall:

   (a)Keep the other parent informed at all times of their residential address and contact telephone number;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issues or illness suffered by the children.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

4. The father shall advise the mother and keep the mother informed of the following:

   (a)The name, address and contact telephone number of any school attended by the children or either of them and shall authorise the school to provide to the mother copies of school report cards, school newsletters, school photo order forms and any other communications to parents, with such information to be provided to the mother at the mother’s request and expense;

   (b)The name, address and telephone number of the children’s ordinary treating medical practitioner, and shall authorise such medical practitioner to provide to the mother any information in relation to the treatment of the children or either of them;

   (c)The name, address and telephone contact number of any counsellor attended by either of the children, and shall authorise such counsellor to provide to the mother any information in relation to the treatment of the children or either of them

5. The children live with the father.

6. The children spend time with and communicate with the mother at all such reasonable times as the parties may agree and failing agreement as follows:

Should the mother continue to live in remote Western Australia

(a)For the entire June/July Queensland gazetted school holiday period in each year;

(b)For three weeks during the December/January school holidays in each year as follows:

(i)     In 2016 and alternate years thereafter for the first three weeks of the Queensland gazetted December/January school holidays;

(ii)    In 2015 and alternate years thereafter for the second three weeks of the Queensland gazetted December/January school holidays, with the children to be returned to Queensland on Saturday prior to school recommencing.

(c)By telephone, or Skype at 6:30pm twice per week on such days as are agreed by the parties, or if not agreed, then Tuesday and Friday.

(d)By telephone or Skype at 6:30pm on each of the children’s birthdays, Mother’s Day, the mother’s birthday, Easter Sunday and Christmas Day if the children are not otherwise in the mother’s care. 

(e)To facilitate the children spending time with the mother in Western Australia, the mother shall be responsible for any air fares for the children and any accompanying adult on the flight between the closest airport to the residence of the father and Western Australia. 

(f)The mother shall provide to the father at least four weeks in advance of the proposed travel, proposed travel itinerary, details of the flights and evidence of the return tickets purchased for the children and any accompanying adult.

Should the mother return to reside within a 50km radius of the town where the children are ordinarily residing

(g)Each alternate weekend from after school Friday to the commencement of school Monday;

(h)For one half of each school holiday period, being the first half of the school holidays in 2016 and alternate years thereafter and the second half of the school holidays in 2015 and alternate years thereafter;

(i)By telephone, email or Skype at any reasonable time; 

(j)On Mother’s Day in each year should it be a day when the children are not otherwise in the mother’s care from 9:00am to 5:00pm;

(k)On each of the children’s birthdays, the mother’s birthday, Easter Sunday and Christmas Day at time to be agreed between the parties and in default of agreement from 9:00am to 1:00pm;

(l)To facilitate the children spending time with the mother in accordance with this order, changeovers shall occur at the closest McDonalds, to where the father lives unless otherwise agreed between the parties in writing.

1. If the father and maternal grandfather live within a distance of 50 km from each other, and if the maternal grandfather advises the father that he wishes to avail himself of this order, then the children are to spend time with their maternal grandfather each alternate weekend from 5:00pm on Saturday until 5:00pm on Sunday, except if that time conflicts with time that the children are to spend with the mother under these orders, or if such time falls on any of the children’s birthdays, the father’s birthday, Father’s Day, Christmas Day or Easter Sunday.

2. Notwithstanding the provisions of order 2:

   (a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and

   (b)The father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

3. The children shall not be relocated further than 50km of the Town E Post Office without the written consent of the other party or Court Order.

4. The Independent Children’s Lawyer is forthwith discharged with the thanks of the court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

PROPERTY

1. The funds presently held in the Ruddy Tomlins & Baxter trust account are to be divided equally between the parties.

2. Otherwise the parties are absolutely entitled to the exclusion of the other to all such monies, chattels or other property as is presently in their possession or under their control.

OTHER

1. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.    

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

FAMILY COURT OF AUSTRALIA AT MACKAY

FILE NUMBER: TVC393/2011

Mr Fiordan

Applicant

And

Ms Reesa

Respondent

REASONS FOR JUDGMENT

introduction  

1. These proceedings relate to the parties’ two children, D born in 2003, and hence presently 12 years of age, and B born in 2006, and hence presently nine years of age (“the children”).  Mr Fiordan (“the father”) seeks orders that he have sole parental responsibility for the children and that they reside with him.  The time which he proposes the children will spend with Ms Reesa (“the mother”) depends upon how close she lives to him.  In substance, so long as she lives within reasonable commuting distance of him, he proposes that the children spend alternate weekends with the mother and two periods of school holidays during the year.  In the event that she does not live within reasonable commuting distance of him, he seeks orders that the children spend two periods of block holiday time with their mother during the year, together with Skype sessions twice a week.

2. The mother seeks orders that she have sole parental responsibility for the children and that they live with her.  She seeks orders that the father spend block holiday time with the children as requested by him.  She also seeks orders for the children spending time with the father on special days, and proposes a Skype regime which would see the children communicating with the father three times per week.

3. The proceedings also involve the division of the parties’ modest property pool.  The only real asset in contention is the sum of $8,066.49 held in a solicitors’ trust account.  The father proposes that it be split equally between the parties; the mother seeks orders that it be awarded solely to her.

4. The proceedings have a long and an unfortunate history.  They were commenced in 15 June 2011 by the father, and first came on for trial before Bell J on 25 February 2013.  For reasons given 12 April 2013, his Honour immediately changed the primary care of the children from the mother to the father, and suspended the mother spending any time with the children for a period of two months.  At the conclusion of those two months, his Honour had contemplated that the mother would then commence to spend alternate weekend time with the children, from after school on Friday to the commencement of school on Monday, together with telephone communication.  However during the two month embargo, the mother relocated from Town E in Queensland, to Town O in remote Western Australia. 

5. That move saw the mother spend no time with the children for 10 months after the April 2013 decision, although it appears as though she had Skype communication with them.  The mother brought an application for orders permitting the children to spend holiday time with her, which was dismissed by Bell J on the basis that the mother’s material was completely deficient as to any detail of the proposed living arrangements for the children when they were to spend time with her in Western Australia.  Rather his Honour directed that the trial continue before him, and it did so on 5 February 2014.  However the time which was allocated for the conclusion of the hearing proved inadequate, and his Honour was then contemplating listing it for a further day in Townsville. 

6. Unfortunately however, owing to his Honour’s subsequent indisposition and retirement, in fact the matter was unable to conclude, and hence the parties’ competing applications were listed for further trial before me.  At the commencement of the hearing, the parties agreed that they were bound by the findings of fact made by Bell J in the April 2013 reasons, and the hearing was so conducted before me.  However on a practical level, save for one or two small issues, in reality the proceedings are at large, and my discretion unfettered by the previous orders.  Sadly, that only serves to emphasise the fact by the time of the delivery of these reasons, the parties will have been in the trial phase for nearly three years, which plainly has not served these children, or indeed the parties, well.

BACKGROUND FACTS

The father

1. The father was born in Victoria in 1966, and hence is presently 48 years of age.  He completed grade 10 at a Technical School and then worked as an orchard hand in northern Victoria.  He then moved to another Victorian town where he worked on earthmoving construction sites.  After six months there, he relocated to Town R in Queensland but continued working in the earthmoving industry for the next three years.  He then obtained employment with a transport company and later as a storeman at an island resort.  He then returned to Town R where he worked in the transport industry.  I have detailed the father’s employment history a little more than would ordinarily be the case in parenting proceedings because, as shall be seen, it may be relevant as to the practicability of the father moving to Western Australia.

2. He met the mother in 1997 when he was 30 years of age.

The mother

1. The mother was born in Newcastle in 1971 and hence is presently 44 years of age.  She lived in that district until 1997, when she moved to Town R.  It was there that she met the father in 1997 when she was 26 years of age.

The relationship

1. Initially the parties lived together as flat mates, but they commenced a de facto relationship in September 1998.

2. In 1999, the father was hurt when he was thrown from a vehicle that the mother was driving.  He injured his back and was unable to work for approximately 18 months, and hence left his then employment.  At the time the mother was working on a part time basis in the hospitality industry.  Once he received the relevant clearance, the father commenced employment at a service station, and he was employed there when the mother gave birth to their first child in 2001.  Unfortunately that child was delivered stillborn, which was greatly distressing to both the mother and father.

3. In early 2003 the father was charged with possession of marijuana.  It appears as though no conviction was recorded, but rather he underwent court ordered drug diversion.

4. The child D was born in 2003, followed by the child B in 2006.

5. At some stage the father commenced to drink heavily.  It caused friction between the parties.  At some point in time which is unclear, the mother asked the father to leave the home because of his alcohol abuse.  He stayed with his brother for a couple of weeks, but ultimately the parties resumed their relationship.

6. In November 2008, whilst driving a motor vehicle, the father was intercepted by police and breath tested.  He returned a reading of .16.  D was in the car with him.  The mother was very angry at the father’s conduct.  At the mother’s insistence, the father again moved out of the home and lived with his brother.  He commenced to attend AA meetings.  Precisely how long he attended those meetings is unclear, as is length of abstinence from alcohol thereafter.  The father says he stopped drinking for 14 months; the mother concedes that the father did not again drink until November 2009, but that thereafter he continued to drink excessively most nights.  At paragraph 23 of the father’s affidavit filed 21 April 2011, he says that after an abusive exchange with the mother on an occasion “I decided to stop drinking indefinitely .. and have never had more than two drinks on any one occasion since that date.”  The mother does not appear to accept that the father drinks as little as he claims, and much of the trial was devoted to exploring that issue.  I will consider the competing evidence in greater detail in due course.  Likewise I shall review the evidence in relation to whether or not the father is likely to be continuing to ingest illicit drugs.

7. The parties are not in agreement as to when they separated.  The mother says it was in November 2008; the father says it was in August 2010.  Nothing turns upon it.  Whichever be the correct date, the parties continued to cohabit for some period of time after November 2008, although the mother claims they were separated under the one roof.

Post-separation

1. Notwithstanding their separation, in Christmas 2010 the father came to stay with the mother and children.  During that period it appears as though the mother took the children on a holiday to Newcastle.  The father assisted with the cost of the airfares.  Whilst in Newcastle, the mother required the father to leave the house in Town E before she returned.  The father says that from that point on the parties’ relationship soured and the mother has been hostile and bitter towards him.

2. On 16 February 2011 the father was served with a Protection Order application by the police.  As well as the mother, the children were named as applicants.  Notwithstanding that, on 19 and 20 February, the mother made the children available to spend time with the father, and they did so.

3. On 24 February 2011 the parties attended the local Court House in relation to the domestic violence proceedings, however the matter was adjourned to enable the parties to try and resolve their family law proceedings.

4. Up until then the father had been having regular face-to-face and telephone time with the children.  However from 24 February on, the mother refused to allow the father to spend time with the children, stating that she was concerned about his mental capacity, and demanding that the father be psychiatrically assessed.

5. February 2011 also appears to have marked the commencement of the mother making a number of derogatory Facebook comments about the father.  In a response to a comment posted around that date by another Facebook user to the mother’s comment, the mother replied “at least I can start getting on with my life its just going to be the kids and I for at least two years.”  Two days later in a further comment the mother said “a lot better different kids, no fighting everything is nice and peaceful, they don’t even ask for him.”  Later comments adverted to alleged mental health issues affecting the father.

6. In her affidavit filed 15 June 2011, the mother said at [43] “I believe the children will benefit from a meaningful relationship with [the father].  However, [the father] must get help for his drinking and mental health issues.”

7. For his part, the father expressed concerns about the mother denigrating him in front of the children, and in his affidavit of 21 April 2011, said he had “concerns regarding her ability and willingness to facilitate and encourage a meaningful relationship” between himself and the children.  He denied that he was suffering any mental condition or illness.

8. On 16 June 2011 interim orders were made affording the father time with the children.  Not long after, the father was injured in his employment.  That affected his income adversely.  The mortgage payments on the former matrimonial home were unable to continue be made by him.

9. In early 2011 the father had met a woman named Ms J, with whom he formed a relationship.  He introduced her to the children in November 2011, and she and her 16 year old daughter moved in to live with the father in December 2011.  Sometime afterwards, on an occasion when the children were spending time with the father, the mother arrived at the father’s home with little warning.  It appears as though by then the mother had herself formed a new relationship, and in the conversation which ensued between Ms J and the mother, the mother appears to have been explaining her plans with her new partner, whilst at the same time enquiring about Ms J and denigrating the father.  All of this occurred in front of the children, on the father’s version.

1. In February 2012 the parties attended for interviews for the first Family Report.  In that report the writer, Mr H identified that the children wished to spend more time with the father.  Sometime thereafter, the mother commenced to make allegations that the children had disclosed to her that they had been sexually abused by the father and Ms J.  In consequence of the mother’s allegations, the children were interviewed by the police and officers from the Department of Children’s Services (“DoCS”).  The police did not substantiate the allegations, however the father and Ms J separated. 

2. In August 2012 the mother sought and obtained a further temporary protection order against the father.

3. By now the parties’ communication was openly hostile.  The father believed that the mother was harassing him and his associates.  He also appears to have started to believe that the mother was stalking him.

4. In communication with the Independent Children's Lawyer at the end of 2012, the mother was continuing to strenuously press her claims that the father was abusing alcohol and using illicit drugs and demanding that the father be tested.

5. The trial before Bell J ran for three days commencing 25 February 2013.  It is apparent from his Honour’s subsequent reasons that the mother was then continuing to pursue her allegations against the father.  However during the trial she raised, seemingly for the first time, an allegation that the father had recently been raided for drugs by the police.  She said that D had disclosed that to her, and she had had him take a clip-lock bag and fill it with lawn clippings to show her the amount of marijuana which D said the father had been found in possession of by the police.  Unsurprisingly a subpoena was issued to the police.  It demonstrated that in fact no such occurrence had taken place and that plainly D had, assuming he had in fact told his mother those things, been lying.

6. It is plain from the reasons of Bell J given on 12 April 2013 that his Honour was very worried about the mother’s actions towards the father involving the children, and was troubled that she was alienating them from him.  It is also plain that his Honour was troubled about the father continuing to abuse alcohol.  Notwithstanding the latter concern, his Honour was of the view that the risk of emotional harm to the children from the mother warranted a change of primary care, and the suspension for two months of the mother spending time or communicating with the children.

7. The mother was understandably very distressed when the children left her care.  The children were also very distressed.  However as I have already detailed, during the two month period when time was suspended, the mother relocated to Western Australia.  The mother says that she did so because she was in fear of the father and his associates.  Somewhat dramatically, she claims that if she had not gone, she would have either ended up dead, or in jail.  She went to live there with her partner, with whom she had been in a relationship in Town E.  He had moved to Western Australia earlier in 2013.

8. After the expiration of the two months, the mother commenced to have Skype communication with the children.  Understandably, they were very distressed in those early communications.  They have continued to remain at varying levels of distress when communicating with her thereafter.

9. It was ten months until the mother again spent face-to-face time with the children.  That was not pursuant to any orders, and indeed the mother’s application for orders for holiday time had been dismissed by Bell J because of the lack of information in the mother’s material as to the proposed living arrangements for the children if they were to spend time with her.  Ultimately the parties have, with the considerable assistance of the Independent Children's Lawyer, notwithstanding the absence of orders, been able to agree as to the mother spending holiday time with the children, both in Western Australia and in Queensland.  However a nigh constant feature of the mother spending time with the children has been her holding them over past the agreed time for return. 

10. As I have previously indicated, the trial ultimately resumed before Bell J on 5 February 2014.  The trial did not then conclude, and as I have noted, his Honour was not able to conclude the trial before he retired.

11. The mother annexed to her affidavits transcripts of a large number of conversations between her and the children on Skype.  I will discuss those in greater detail later, but it is apparent from them that a feature of the mother’s Skype communication with the children is that they are often distressed by it.

12. It appears as though D has always been a large boy.  However in the last two years he has put on considerable weight.  Recently he was as much as 105kg, although by trial it had reduced to about 100kg.  The mother is highly critical of the father permitting the child to reach such a weight.  D has also had considerable problems at school.  His academic grades have reduced far below what he used to achieve.  He appears to have started misbehaving.  He has been given detention.  Again the mother is highly critical of the father for that.

13. By the time of trial, the mother was continuing to live in remote Town O in Western Australia, and the father remains residing in Town E.  The mother travelled to Mackay for the trial, and took the opportunity to spend the weekend before the commencement of the trial with the children.  The following Monday morning (ie the day before the trial) D made a disclosure to his counsellor that the father regularly assaulted him by choking him.  I will discuss that allegation in due course.  Then, during the mother’s re-examination on the final day of trial, she produced a video taken by one of the children which she said purported to show the father with his pants down in the presence of the children.  I will discuss that in due course as well.  However for present purposes it is sufficient to say that this is not the first occasion when dramatic alleged disclosures have been made by the mother on the eve of, or during, the course of the trial of these proceedings.

THE ISSUES

1. With the assistance of the parties during the course of the hearing I identified that the following are the issues which stand to substantially determine the outcome of these proceedings:

   1.What is the nature of the children’s relationship with:

   (a)    the father;

   (b)    the mother.

   2.Would the children benefit from having a meaningful relationship with:

   (a)    the father;

   (b)    the mother;

   and if so, how might it best be facilitated.

   3.Does the father pose any risk of harm to the children, and if so, what is the harm and what is the magnitude of the risk.

   4.Does the mother pose any risk of harm to the children, and if so, what is the harm and what is the magnitude of the risk.

   5.Does the father have the capacity to provide for the needs of the children, and particularly D’s needs relating to his education and weight gain issues, and if so, will he reasonably discharge those responsibilities.

   6.If the mother were the primary residence parent, would she facilitate a meaningful relationship between the children and the father.

   7.If the mother were the primary residence parent, would the practical difficulty and expense of the children spending time with the father substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.

   8.If the father were the primary residence parent, would the practical difficulty and expense of the children spending time with the mother substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.

   9.What would be the effect on the children of a change in primary carer.

   10.Could the parties ever communicate sufficiently that equal shared parental responsibility could practically work.

2. After I have considered the relevant statutory provisions and legal principles, I will address those issues in that order in advance of a general traverse of the s 60CC considerations, and then consider the appropriate parenting orders which are in the children’s best interests.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and s 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
   or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[1]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

2. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

NATURE OF CHILDREN’S RELATIONSHIP WITH PARENTS

[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The father

1. The father says that the children have a good relationship with him, and one which has progressively improved since they came into his care in April 2013.  The mother does not appear to accept that, or at least fully accept it, in that she points to things said by the children in the course of Skype conversations, which are adverse to the father.

2. Mr H has observed the father and children interacting now on several occasions in the course of preparing Family Reports.  He has on at least on one occasion seen them with their father in their home.  In evidence before me, he said that the children had formed a normal attachment with the father who was their primary carer.  I accept that evidence.  I am satisfied that the children have a good, close relationship with their father.

The mother

1. The mother points to the fact that, up until April 2013, she had been the primary carer for both children for all of their lives.  When they were in her care, D did not have any of the educational and behavioural issues which are now evident, and whilst he may have been a large boy, did not have the obesity issue which now has beset him.  The mother also points to the fact that during her Skype conversations with them, the children can be heard to tell her that they love her, miss her and wish to live with her.

2. The father does not dispute the significant role which the mother had in the children’s lives up until April 2013, and likewise does not deny that the children dearly love their mother and miss her.  However what he does point to is the way in which, from time to time, the mother manipulates the children during the course of her Skype sessions with them.  Particularly he focusses upon the fact that the mother often seeks to have the children express their preferences for spending time with her or the father. 

3. A particularly blatant instance of that was on 31 December 2013.  The transcript of that conversation is at annexure 12 to the mother’s affidavit filed 22 April 2014.  Initially the mother enquires of the children “are you excited about mummy coming over soon?” to which, after an emphatic series of “yesses”, the child B said “I want you to come over today.”  A little later the mother then enquires of B “you miss me don’t you [B]?” to which both children say “yes”.  The mother then enquires “would you like to spend time with mummy when I am there, or your dad?”  B indicates that she wishes to spend time with her mother, but D says “I just wish you two would of (sic) got along” and when asked to repeat that, says “I wish you and dad could get along.”  To this the mother responded “mummy tries darling.”  Appropriately the father then intervened and indicated he was going to end the conversation at that point as “you are provoking the children to say stuff.”

4. This is by no means an isolated incident.  For instance in an earlier conversation on 20 December of that year, when discussing her imminent visit to see the children, the following appears in the transcript.

   MUM:I’m only allowed to see you from 15^th to the 17^th, and 20^th to 24^th.  That’s all I get to see you.  Your dad is only letting me see you for 6 days.

   [D]:               Yes

   MUM:           would you like to see me more?

   [D]:               Yes

   MUM:Mummy is going to be there for 4 weeks.  If I can’t see you more, I might come home early.

   [D]:Dad said we’re allowed to see you.

   MUM:Only for 6 days.

   Your dad sent me a letter today.

   Is that good, or bad?

   [D]:Really bad

   MUM:That’s what I think too.

   You will have to ask him if you can see me more?

   I’m not happy about it either.

   [D]:We are allowed to see you.

   MUM:Till the 17^th.  Grandad’s birthday is on the ….

   [D]:No. We see you for 5 days, then we come back to dad on the weekend, and we go back to you for 5 days, and then go back to dad on the weekend.

   So we can get ready for school.

   MUM:I could take you to school.

   [D]:Yes, I know.

   Cause dad’s got to work.

   MUM:Yeh, I know.

   That’s why you should be able to stay with mum.

   [D]: Yes.

   MUM:Oh well. I want you to know I did try to see you more.

5. The children have indicated to other people that they would like to live with the mother.  For instance they have on occasion said that to their counsellor, Ms W.  Indeed they had expressed that wish as recently as their counselling session on the Monday before the trial commenced.  The criticism that was made of the mother by counsel for the father in that respect however, was that they had just been with the mother that previous weekend, and it was said that the mother was likely to have influenced the children to express such wishes.

6. The father made a broader suggestion that the mother has regularly tried to influence the children’s expression of wishes to Ms W, and in that respect focussed particularly upon a transcript of a Skype conversation between the mother and the children on 5 May 2014.  The children had on only the previous day seen Ms W.  The first point that was made by counsel for the father was that there was no transcript of conversations between the mother and the children for about the previous twelve months.  The first such transcript was 5 May.  However the transcript of 5 May is itself illuminating.  During the course of that conversation the following appears:

   [B]:I told [Ms W] about all the stuff dad does to us.

   [D] didn’t

   [D]:I’m not allowed to. (Angry)

   MUM:Why not?

   You can speak to [Ms W] whenever you like.

   [D]:[B] wanted to talk to [Ms W].

   It’s not my bloody fault. (disturbed)

   MUM:It’s alright.

   I’m sure you will when you’re ready.

   [B]:It’s not my fault either.

   MUM:It’s no one’s fault.

   What do you want mummy to do to help?

   [B]:I also told [Ms W] I want to live with you.

   I said that

   MUM:What are you crying for [D]?

   [D]:I’m not

   MUM:I can see you.

   Is there anything mummy can do to make you feel better.

   [D]:I miss your cuddles

   MUM:Mum doesn’t like to see you sad

   Every time I speak to you on Skype you’re always fighting, crying and unhappy

   [Ms L] commented how happy you were when mummy was over there, and now she said you look sad all the time.

   So what’s for dinner tonight? Tinned soup again.

   [B]:Party pies

   MUM:You have them a lot don’t you?

7. It was suggested by counsel for the father in fact B was reporting back to her mother that she had told Ms W about “all the stuff dad does to us” because she had been in some way prompted to do so by the mother.

8. On 7 June 2015 the following appears in the transcript of the Skype conversation:

   [B]:I spoke up, and [D] didn’t.

   MUM:What do you mean, you spoke up?

   [B]:Drinking. Smoking

   MUM:Drinking, and smoking.

   [D]:On Monday dad stayed in the room.

   I can’t speak when he’s in the room.

   MUM:How come he stays in the room?

   Doesn’t he let you talk to [Ms W] on your own?

   [D]:No

   MUM:Really

   [D]:Yeh!

   MUM:What, he does that every time you go?

   [D]:Yeh!

   MUM:Really?

   Well you tell [Ms W] you want to speak to her on your own.

   What are your wishes [D]?

   [B]:My wish is to be there with you mummy.

   To have a happy life, not a sad life.

   MUM:[B] obviously wants to be with mum.

   What about [D]?

   [D]:The same.

   [B]:I want a happy life.

   MUM:Why do you have a sad life now?

   [B]:I’m sad when I’m in Queensland with dad.

   MUM:What about [D]. Is he sad or happy?

   [D]:Sad

   MUM:Do you still want to come to school in Western Australia?

   [D]:Yes

   MUM:Why are you sad in Queensland [B]?

   [B]:Cause I don’t see you every day.

   MUM:Would you like to talk to mummy more on Skype?

   [B]:Yes

   MUM:How often do you want to talk to mummy?

   [B]:Every day.

   MUM:Mummy has tried, but your dad won’t let me.

   I want you know that I have tried a lot.

   I’ve tried my hardest.

   ([B] nodding)

   So what will make you happy in Western Australia [B]?

   [B]:Mummy

   MUM:You want mummy

   [B]:Yes

   MUM:Yeh, I know. I want you too.

   I love you so much.

9. Of note within that aspect of the transcript is not only the fact that the mother appears to be encouraging the children to make disclosures about the father to Ms W, but again the mother is emphasising that it is the father who is stopping the children having a better relationship with her.

10. The father and Independent Children's Lawyer contend that the mother is at least covertly, and probably overtly, manipulating the children to say and do things during the Skype communications, and probably likewise in face-to-face time which she spends with the children.  I accept that that is the case.  The transcripts prove the matter beyond any real doubt.  However I think it likely to also be a by-product of the mother’s lack of insight as to the adverse effect which such conversations with the children have on them.  The children are plainly conscious of the considerable tension between their mother and father, and likewise that the mother wishes them to express their love for her and a preference for her over the father.  It is no exaggeration to say that the conversations – and there are many spanning many, many pages – are replete with negative perceptions of the father being communicated by her to the children, and are wholly devoid of any positive comment about the father.

11. Against this background, Mr H was asked to describe his view of the nature of the children’s relationship with the mother.  He said that it was a relationship containing significant confusion.  It involved the children having divided loyalties.  He thought D was an age that he would be aware of the mother’s manipulation, but still loves her dearly, and is trying to please her in his interactions with her.

12. I accept that is an accurate characterisation of the mother’s relationship.  However that does not detract from the fact that the children love her dearly and do indeed genuinely miss her.

WOULD THE CHILDREN BENEFIT FROM MEANINGFUL RELATIONSHIP WITH THE PARENTS

The father

1. The children plainly love their father.  In the course of observing the father and the children on 4 August 2015, Mr H noted in his subsequent report:

   44. [D] was reasonably positive about his father in his interview but afterwards, while working with his father on the car while the writer interviewed [B], he appeared to be relaxed and animated when talking to his father especially with regards to music and they talked about his continuing playing the drums and learning the guitar.  There was a strong impression of a shared interest and enjoyment of music.

2. As to B, at paragraph 48 of that report, Mr H said:

   48. When [B] was asked to indicate on a continuum (a line drawn on paper with a smiley at one end (10) and a sad face at the other (1)) how she felt about aspects of her life, for example school, [D] and things she enjoyed etc she tended to point to the extremes of one end or the other or the middle.  When asked how she would feel if she lived with her mother she pointed to the positive end of the line (10) but when asked how she feels living with her father she hesitated for the first time and her finger hovered over the middle and then went to 9 on the scale.  [B] stated that “if I live with mum I can see dad any time I like” and when asked to expand as to how frequent that might be she was unable to say.

3. There are three things that need to be said in relation to that aspect of that report in relation to B.  The first is that the mother suggested to Mr H that he was lying in reporting that B’s finger ultimately went to 9 on the scale, after it had remained for some time in the middle.  This was but one aspect of a fairly colourful cross-examination of Mr H by the mother, in which she suggested that he was overtly biased against her in favour of the father.  For instance she alleged that one of the children had told her that the father had shared a beer with Mr H during the course of his interview with him.  She asserted that Mr H had behaved unprofessionally during the course of his interview with her.  Mr H robustly rejected both of those assertions, and I accept his evidence in that respect.

4. The second matter which is worthy of note is B’s misunderstanding that “if I live with mum I can see dad any time I like.”  Mr H was concerned that B was under an unrealistic expectation that living with her mother would not reduce her time with the father, below that which she wished for.

5. The third matter worthy of observation is that plainly both parents are important to B.

6. The father has a long history of fairly stable employment.  He has, to a large degree, satisfactorily stepped up to the plate in assuming, after April 2013, full time care of the children without assistance.  He has not, however, been a perfect parent.  I will detail more about his deficiencies later in these reasons, however plainly there has been some tension in him balancing full time employment, with care of the children before and after school, and during school holidays.  Further as a general proposition, the father is something of a procrastinator, and could act with far greater speed in addressing problematic issues as they arise.

7. However, none of that really casts any doubt upon whether the children would benefit from having a meaningful relationship with their father.  I am satisfied that they would.  That was certainly the opinion of Mr H, and I accept his evidence.

8. As to how it might be best facilitated, the evidence of Mr H was that it would best be done by the mother ceasing her constant criticism of the father to the children, and particularly her criticism of everything that the children do with him.  I accept that evidence.  Otherwise I am satisfied that the best means for the relationship benefits to be bestowed upon the children is for them to spend regular face-to-face time with the father, and to have him involved in all aspects of their life.

The mother

1. No party made any criticism of the mother’s parenting ability, save for the allegation of alienation.  She plainly was otherwise an excellent mother to the children when they were in her sole care, and both children were progressing well.  Moreover, the mother does not suffer the procrastination issues which the father appears to, and enjoys a healthy active lifestyle, with a particular interest in fitness.  I have little doubt that she deeply loves the children, and wishes to devote herself to that task.  In saying that I do not overlook the fact that the mother unilaterally left Queensland and went to a remote area in Western Australia to live, which might suggest that she has the capacity to prioritise her own needs over the children’s, however even if that be so, it is not sufficient indication to me that the children would not benefit from a meaningful relationship with her.

2. As to how that might be best facilitated, again I accept Mr H’s evidence that the mother could improve the quality of her own relationship with the children, and the benefits which it confers, by ceasing her, at times strident, criticism of the father.  Further, the anguish which she from time-to-time engenders in the children when discussing the fact that they miss her and wish to live with her, inevitably means that there is a regular aspect of sadness in her communication with them.  I have little doubt that the children feel torn, and the regularity of that theme in the children’s communication with the mother is an unfortunate incident of it.

3. That said, Mr H accepted that the children would benefit from a meaningful relationship with their mother, and I accept that evidence.  That benefit would likely best be facilitated by the children spending regular face-to-face time with the mother, or if that is not possible, spending as much time as is practicable with her, and regularly communicating with her.

RISK OF HARM POSED BY FATHER

1. The mother’s case was that the father does pose a risk of harm to the children, comprising a risk of physical and/or sexual abuse, and emotional harm.  That said, the orders which she sought did not see the father’s time with the children supervised or monitored in any way, but rather she contemplated that the father would spend block holiday time with the children, much as she presently does.

2. Turning firstly to the risk of physical harm which it is said that the father poses, that appears to be principally based upon the most recent disclosure of D to Ms W that the father would grab him around the throat. 

3. That disclosure was made in the context of Ms W going through some scenarios with the child dealing with fear.  Her evidence was that five minutes into that counselling, D “blurted out” that his father grabbed him by the throat, and B nodded in agreement.  He indicated that the father grabbed him by the throat and motioned that he squeezed it.  D said that the father did that to him when he teased B.  He said that he could not breathe when it was happening, and said that it happens most days because he teases B most days.  When asked, D imitated the choking with his own hand.  He could not however recall with any certainty when it last occurred, but thought it might have been the previous Thursday.  He did not know if the grabbing caused any marks, and was unable to explain why he had not previously mentioned this to either Ms W, his mother, a teacher, his grandmother or grandfather.

1. After this evidence was received at the end of the second day of the trial, the father gave further evidence at the resumption of the trial on the following morning.  He emphatically denied that he had ever grabbed D by the throat in a disciplinary way, but did say that perhaps he has grabbed him around the throat when play wrestling with him on the couch.  He denied that was of a violent nature.  He accepted that he did on occasion growl at D when he was teasing his sister, but denied that he had administered any physical discipline.  He said that the children at that time were aware that there was an impending trial, because they knew that the mother was coming into town to go to court and also knew that the father was going to Mackay.  Apparently D associates that with the court, which he understands to be in relation to himself and his sister.

2. Apart from his denial in evidence, the father points to the following matters as suggesting that little, if any, weight should be given to D’s disclosures to Ms W:

   ·The live prospect that the mother had coached the children to make such disclosures when she was with them the previous weekend, in a similar way to how she had in earlier Skype conversations attempted to coax the children to say things to Ms W;

   ·The fact that this is not the first time when, close to a trial date, issues have arisen in a somewhat startling manner, which on face value tend to favour the mother’s case;

   ·The fact that in the past DoCS have been satisfied that the mother has coached the children to make disclosures, which they found to be putting the children at risk of emotional harm.

3. To that may also be added the somewhat inconsistent nature of D’s disclosures, in that even though he asserted that it happened “most days” he was unable to remember the last occasion, and more, when he did tentatively nominate a day, it was some four days earlier.

4. There was also a somewhat tantalising question asked by the mother of the maternal grandfather in his oral evidence-in-chief on this issue.  The question seemed to suggest that in fact there had been a discussion about the father grabbing D by the throat between the mother and at least D on the previous weekend when he had been spending time with them.  However this was not the mother’s evidence on this point.

5. It needs to be conceded that D is not firmly wedded to the truth.  Most tellingly, on a previous occasion close to trial, D had come up with what appears to have been a wholly fanciful story about a police raid on his father’s home, which led to him showing the mother the size of the bag of cannabis (using lawn clippings) that the police had found.  This was wholly fictitious.

6. The mother sought to augment D’s recent disclosure by also making assertions that the father had in the past punched the family dog, and been severe in his treatment of the children when the parties were living together.  The explanation of the dog episode given by the father was that he grabbed the dog by the collar and hauled him outside the house after he had been engaging too roughly with B.  It appears as though the dog is a very large dog, being a Bull Mastiff cross Wolf Hound.  The father denied that he had been severe in his treatment of the children earlier in their lives.

7. Upon balance, I am not persuaded that there is truth in D’s disclosures to Ms W.  Particularly:

   ·Their timing on the very eve of trial is peculiar;

   ·The mother has in the past sought to cajole the children into telling Ms W things adverse to the father;

   ·D has in the past been caught out telling lies which if they had been true, would have told strongly in terms of his care changing to the mother.

8. Even considering all of the material collectively, I am not satisfied that it is sufficient basis to find that the father presents an unacceptable risk of harm of physical harm to D, and certainly not B.

9. Turning then to the question of sexual risk, this attaches principally to the child B.  B has now made, it seems, two disclosures; however it appears as though it is of the one alleged event.  B’s disclosure was first made in 2012 and hence was before Bell J.  It had been by then investigated by DoCS and not substantiated.  It was again repeated by B to Ms W on the Monday prior to the trial.  The context in which she came to make that disclosure is somewhat revealing.  Immediately after having made his disclosure of the father grabbing him around the throat, D then told Ms W that his father had been touching B.  To this B nodded.  Ms W asked if it was one or more occasions and B indicated that it was only one.  She enquired whether this is the occasion that the mother already knew about, to which B said yes.  D then started crying and said he missed his mother and wanted to live with her.  B said that she wanted to live with her mother as well.

10. It had not previously been suggested that D had been a witness to the alleged touching of B by the father.  How D could then have been aware of that is unclear.  It appears as though he has been told it by someone.  It may have been B; it may have been the mother; however it was completely unrelated to the choking allegation, but rather appeared to be on a list of two matters that D intended to tell Ms W about, in the context of him then saying that he missed his mother and wanted to live with her.

11. The relevant authorities have investigated B’s disclosure and found that, far from it being the father who is a risk to the children, it was the mother, by way of emotional abuse.  The way in which it appears that this allegation has again arisen in the context of this highly conflicted litigation, does not incline me to a different conclusion to that of the Department.  The plain impression I have is that the children were intending to enlist Ms W in the plan which they had of moving to live with their mother.  They plainly believed that making these disclosures could influence that outcome.

12. I am not satisfied that the video produced by the mother on the last day of trial in fact showed the father behaving inappropriately with the children, and it could not possibly found a conclusion of unacceptable risk of sexual harm.

13. Certainly the material falls far short of persuading me that the father presents as an unacceptable risk of harm to the children.

14. The final aspect of risk which was relied upon by the mother is that associated with the father’s alleged drug use and alcohol abuse.

15. As to drug use, the father has now tested negative to a number of random drug tests required of him by the Independent Children's Lawyer, accepting that one specimen had a dilute urine sample.  There is simply nothing in the material which would enable me to be satisfied on the balance of probabilities that the father continues to use marijuana or other drugs.

16. That then raises the question of alcohol abuse.  It does seem plain that in the past the father has had difficulty controlling his intake of alcohol, even on his own concession, during the course of the relationship.  There was also the occasion when he was detected driving with a blood alcohol concentration of .16 with D in the car.

17. However the father asserts that although he still does drink, it is moderately and certainly not every day.  There is nothing in his recent criminal history to suggest that that is incorrect.  The evidence which the mother relied upon mostly came from the maternal grandfather.  His evidence was that on one occasion, at a party in a park, he had seen the father consume four or five mid-strength beers.  The father denied that he did so, but admitted to being there and consuming liquor.  I accept the father’s evidence.  Further, the mother asserted that the maternal grandfather had made enquiries of a local liquor outlet, who had confirmed that the father regularly purchased considerable quantities of alcohol from it.  However in his evidence, the grandfather denied having made such enquiry, or having told the mother that.  That aspect of the mother’s case therefore fell rather flat.

18. Finally the mother relied upon the children’s disclosures made from time to time in Skype conversations, that the father remains drinking and is “drunk all the time” or words to like effect.

19. The father concedes that from time to time he consumes beer.  Therefore there is an element of truth to what the children are saying.  However I am not persuaded that the children would necessarily be able to determine whether the father was drunk or sober, and moreover, the disclosure was made in the context of their Skype communication with the mother.  I have earlier observed in those reasons the children are not discouraged from saying things adverse to the father, and are not encouraged to say positive things about him; in such circumstances their disclosures deserve little weight.  Further, again there is D’s lack of truthfulness to be taken into account.

20. I am not persuaded that the father remains abusing alcohol, and it follows that I am not persuaded that he presents an unacceptable risk of harm to the children in that respect.

RISK OF HARM POSED BY MOTHER

1. The mother has, it must be said, a long history of bitterness towards the father.  At the early stages of the parties’ post-separation conflict, the mother regularly used social media to express her frustration with the father, but more worryingly, her desire to exclude him from the children’s lives for at least two years.  It is plain from the Skype conversations that the children well understand the parental conflict, which is perhaps most poignantly articulated by D’s comment on 31 December 2013 that “I wish you and dad could get along.”

2. I have already observed that nowhere in those transcripts is there any indication of the mother presenting the father in a positive light.  The children are encouraged to think and speak negatively of the father.  When they do so, they are not discouraged from doing so.  Moreover, time and time again the mother causes the children to express a wish to live with her and confirms that this is her wish as well.  She blames the father for the lack of time which the children get to spend with her.

3. Most concerning however, is the mother’s apparent complete lack of insight into the effect which this has upon the children.  I fear that the mother’s lack of insight is further fuelled by two things.  The first is her desire to indeed effect a change such that the children would move back into her primary care.  She sees the children’s disclosures and utterances of a preference to live with her as valuable ammunition in these proceedings.  That is no doubt why the extensive transcripts were put into evidence.  However I must observe that the fact that there was so many adverse aspects to the transcripts which were identified and forensically taken advantage of by the father, only serves to emphasise the mother’s lack of insight.

4. The second matter is that no doubt the mother derives comfort from her children’s statements that they love her, miss her, want to live with her and would prefer to live with her than the father.  No doubt is has been heart wrenching for the mother to be separated from, and not even get to see the children for ten months after the April 2013 orders, and then thereafter to remain physically distant from them and only able to spend limited face-to-face time with them in school holidays.  However again that does tend to cause me concern as to the extent to which the mother is able to differentiate between her needs and the children’s needs.

5. The mother continues to – with some enthusiasm – follow up on the children’s criticisms of the father and the disclosures which they make.  She appears to entertain no scepticism in relation to them.  Many of her sources of information appear to be former friends from the Town E area with whom she communicates from time-to-time.  It may fairly be said that she is prepared to accept gossip as truth and act upon it.

6. Moreover she appears to be highly ambivalent about the various outcomes of the investigations that authorities have made from time-to-time.  Although she was keen to express an open mind as to whether or not the father had abused B, when the mother produced her phone to counsel for the father in order to show a particular text message, counsel read out the mother’s response (as at December 2014) in which she referred to the father as a sex abuser or like terminology.  It appears as though the mother still entertains a real belief about this.

7. The mother was begrudging in the extreme as to the benefits which the children get from their relationship with the father, and has been avid for any information she can use to demonstrate his lack of parenting capacity.  For instance she appears to be obsessed with the children having had nits from time-to-time.  She is troubled about the children’s diet (which is understandable given D’s weight issues) and keen to shoot home to the father responsibility not only for that, but D’s poor academic performance and declining behavioural standards.  She genuinely appears to think that the father is largely to blame for such things, and discounts substantially any contribution from the children being exposed to the parental conflict.

8. Moreover the choice of her place of abode necessarily would have, in the event the children were to reside with her, made it very difficult for them to spend anything other than holiday time with the father, as indeed has proved to be the case with the mother.  It is consistent with the mother being quite happy to have the father out of the children’s lives.

9. Mr H said there was a risk of emotional harm to the children from the mother’s alienation.  He said that it could affect the children’s development because it produces guilt in them about what they are saying in relation to their own father, which can destabilise their entire emotional foundation.  It can lead to issues of trust and loyalty as adults, and could possibly affect their ability to form relationships with other persons in later life.

10. I am satisfied that indeed the mother does see little advantage to the children in having the father in their lives, and would be quite happy to tolerate a situation in which he was practically removed from them.  I would put that risk as real, but not of itself unacceptable.

FATHER’S CAPACITY TO PROVIDE FOR THE CHILDREN

1. Up until April 2013 the father had never been the sole carer of the children (accepting that he had them in his care for limited periods over weekends and the like).  It may fairly be said that in all probability, the father was not adequately prepared to assume that role in April 2013.  However I am satisfied that since then the father has made a number of significant adjustments, and indeed that was the view of Mr H.  However, as Mr Hl also said, the father is by nature a procrastinator, and does not get on to things as quickly as they might deserve.  This case presents plenty of such illustrations.  For instance the mother had been pressing for some time for D to attend private tutoring; the father did not then properly investigate it, and has only recently enrolled D in it.  Likewise the father has perhaps not been as persistent in encouraging D’s involvement in sport as he ought to have been.  The father also appears to have only belatedly taken the issue of D’s obesity with the seriousness that it deserves, and has engaged D with a personal trainer and has begun to regulate his intake of food (save that D appears to be comfort eating behind the father’s back).  Moreover, it appear as though the meals which the father prepares for the children might be described as somewhat rudimentary, and he may not actively encourage the children to participate in extra-curricular activities as might be desirable.

2. In blunt terms, the father is far from a perfect parent.

3. However that falls far short of persuading me that the father does not have adequate capacity to provide for the children’s needs.  I am not so satisfied.  The fact that he is not beyond criticism – perfectly justified and at times considerable criticism – does not mean that he does not have a good enough capacity to provide for the children. 

4. In saying that, I am particularly mindful that these children have now been exposed to parental conflict of real intensity for a long period of time.  The father’s capacities have not only likely been eroded by that conflict, but the children’s capacities to cope have doubtless also been adversely effected.  Therefore to the extent that the father has done what he has with the children, needs to be weighed against the background in which it has been achieved.

5. Of course having the capacity is but one part of the equation; capacity is of no use to the children unless it is actually used to discharge the responsibilities it pertains to.  Again the same criticisms that I have discussed in relation to capacity prevail here.  However, ultimately in real terms, the proof of the pudding is in the eating.  Albeit on occasions far too tardily, nonetheless the father has discharged his responsibilities to the children.  There is no reason to think that he will not continue to do so.

WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP WITH CHILDREN AND FATHER

1. Counsel for the Independent Children's Lawyer in his final submissions identified this as the determinative matter.  He said that the mother was unfailing critical of the father, and that she maintained a deep suspicion in relation to him.  He said that she was unable to accept the correctness of the decision of Bell J, that amongst other things, she exhibited vitriolic attitudes towards the father.  He said that the mother’s views of the father were entrenched and of long standing.  Although Mr H had suggested that she undertake therapeutic intervention, she had not done so.  He said that the best evidence of the mother’s inability to facilitate a relationship between the children and the father was in her own affidavits, and particularly the transcripts of the Skype conversations.  He correctly described those as an “own goal”.  He emphasised that the fact that she included them in her material shows that she does not have the insight to understand what she is doing, and what is wrong with it.

2. He said that it must be clear to the children that the mother hates the father, because she has never has anything good to say about him, and does not discourage them saying bad things about him.  Moreover, she positively encourages them to express wishes to leave his care and go into her care.  She constantly blames the father for the children’s distress at being unable to spend more time with her.  She appears to accept no responsibility herself for her role in that situation, which is inexplicable given that she went to live in a remote area of Western Australia.

3. Moreover the mother genuinely believes that the children do not want to be at their father’s, and do not experience a good relationship with him.  She said that expressly in her email to the Independent Children's Lawyer of 4 May 2015.      

4. The mother’s conduct in holding over the children contrary to agreements and undertakings from time to time does not suggest that she perceives benefit in enforcing certainty upon the children.  She appears to have, at the least, given into the children’s expression of wishes to spend more time with her, perhaps because she thought that of itself was a critical point to make.  She did not appreciate on those occasions that it would be important to the father to also spend relevant time with the children, particularly in January of this year when the children needed to be prepared for school.  She thought that her time with the children was more important than the father’s.  That buttresses my impression that it is the mother’s view that the children do not benefit from their relationship with the father.

5. Of course, in her evidence the mother claimed that she would facilitate a relationship between the children and father, but I have serious doubt about that.  She lives in a remote location, and says that she intends to continue to do so.  She dismissed out of hand returning to the Town E area.  She even went so far as to say that if I ordered her to return, she would not obey the order.

1. Mr H was highly critical of the mother because she has created an “either/or” situation, where because of her unilateral relocation to a remote area, the children cannot have the benefit of both of their parents to the extent that would be desirable.  I am satisfied that in so relocating, the mother likely believed that it would be the father’s time with the children that would suffer in consequence, which belief has, at least to date, proved incorrect.

2. I am persuaded that the mother would not facilitate a meaningful relationship between the children and the father if she was the primary residence parent.

PRACTICAL DIFFICULTY AND EXPENSE AFFECTING CHILDREN’S RELATIONSHIP WITH FATHER

1. If the mother were the primary resident parent, she proposes that the children would live with her in Western Australia.  Her proposal is that the father would continue to live in Queensland, and hence the children would need to travel to the father to spend time with him, or the father travel to Western Australia to spend time with the children there.  At most that would be school holiday time.  To the extent that the children were otherwise able to maintain personal relations, it would only be via Skype or telephone.

2. In any event there are issues about the parties being able to afford more than two or three trips per year.

3. During the course of his evidence the father indicated that he had contemplated (and perhaps, on one view, emotionally decided) that if the children were ordered to live with the mother, he would relocate to Esperance, which is a town about three hours away from where the mother lives.  Although he has identified no employment for him there, his broad experience over many years in many different jobs would likely stand him in good stead in obtaining work there.  Accepting that move would likely enable the children to spend more time with him, it would still be a significant impost.  A three hour drive after school on a Friday would be a significant inconvenience, to say nothing of an expense.  However a three hour drive on a Monday morning to get the children back to school would be nigh impracticable, which means that there would need to be a three hour drive on the Sunday afternoon.

4. I am satisfied that if the mother were to be the primary residence parent, there would be, irrespective of where the father were to reside, practical difficulty and expense in the children spending time with the father, which would substantially erode their right to maintain personal relations and direct contact with him on a regular basis.

PRACTICAL DIFFICULTY AFFECTING PERSONAL RELATIONS WITH MOTHER

1. If the father were the primary residence parent, he would propose to live, at least in the first instance, in Town E.  Again he did give some evidence that he had contemplated moving if not to Esperance, then at least to Victoria, so that the children would be closer to the mother, and hence more likely to be able to spend time with her.  He said that he would seriously think of doing so because he recognised the children’s desire to spend more time with their mother, and the fact that they do indeed love her.

2. However as with the situation if the children were primarily resident with the mother, the tyranny of distance, and the parties’ relatively meagre financial circumstances, inevitably mean that the children would spend only limited time with their mother, probably only during school holidays unless the father was living in Esperance, which would again substantially affect their right to maintain personal relations and direct contact with their mother on a regular basis.

EFFECT ON CHILDREN OF CHANGE IN PRIMARY CARE

1. The primary care of these children changed from the mother to father in April 2013.  Initially there was ten months when they did not spend any face-to-face time with the mother, which must have been very difficult for them.  Since then they have continued to be embroiled in the parental conflict by the mother, and she has, if not actively elicited, then nonetheless not discouraged the children from expressing a desire that they wish to come and live with her.  When those expressions have been made, she has then confirmed them by indicating that it is what she would also wish.  She then blames the father for why that wish cannot be achieved.  These are therefore children that have very much been in an actively unstable situation since their care changed.

2. Mr H was of the view that there would likely be a honeymoon period when the children first went to live with the mother, but once that was over, difficulties would likely recur.  He thought that the situation could well become emotionally chaotic, but it would be hard to predict.  His concerns were more in relation to the prospect of the children losing their relationship with their father, which he said would be harmful to their emotional development.  I accept that evidence.

3. Upon balance, other than it likely being a time of some chaos for the children, I am not able to accurately predict what the effect on the children would be in a change of primary carer.

PARTIES’ CAPACITY TO COMMUNICATE

1. These parties have very limited capacity to communicate.  The father has for a long period of time adopted a strategy of ignoring the mother’s communications, and insisting that they go through his solicitors.  Time and time again the Independent Children's Lawyer has needed to broker agreements between the parties, particularly as to holiday time.

2. The mother says that she is in fear of the father, who she thinks could either bring about her death or imprisonment.  There is no history of child focussed respectful communication between these parties.  They have now been separated for at least four years, and perhaps six.  There is no reason to think that these parties have the capacity to communicate in a way that could support equal shared parental responsibility

SECTION 60 CC CONSIDERATIONS

1. Although not expressly adverting to them, it will be appreciated that in the discussion of the list of issues I have already addressed the primary considerations, and a substantial number of the additional considerations in s 60CC.  It is unnecessary for me to further canvas the primary considerations.  However the following additional considerations are worthy of comment.

2. The mother emphasises the fact that, both to herself and Ms W, the children on occasions have expressed wishes to live with the mother.  On the other hand I note that D, in the course of the most recent Family Report interviews, “would not comment on whether or not he wished to go to live with [the mother] in Western Australia.”

3. D is 12 years of age.  He has spent some time with his mother in Western Australia and appeared to enjoy it.  However I am troubled that his expression of wishes has been to please his mother, and may have been the product of the mother’s manipulation of him.  Whilst I do take his views into account, I do not give them a great deal of weight.

4. As to B, I have already noted that in the most recent Family Report interviews she expressed to Mr H that if she lived with the mother, she could see he father any time she wanted.  That is of course quite incorrect.  Distance and finance would preclude that.  In any event, she is only eight years of age.  I give B’s wishes little weight.  

5. I have sufficiently discussed the nature of the children’s relationship with each of the parents, but I should advert to other family members.  In Town E, there presently lives the paternal grandfather, maternal grandmother, and a paternal uncle, with two of the children’s cousins.  It is plain that the children have a good relationship with the maternal grandfather.  They likely also have a good relationship with their uncle and cousins.

6. The maternal grandfather was ambivalent about what he would do upon the conclusion of the proceedings.  The distinct impression I had of his evidence was that if the children went to live with their mother, he would likely relocate to Western Australia, whereas if the children remained living in the Town E district, he would likely remain living there.  In my view the maternal grandfather is an important figure in both children’s lives, in particular because he is a physical component of the mother’s family who presently lives close by them.  It was this which caused me to raise with counsel for the father whether, in the event the children continued to live with the father, there should be orders requiring the father, if the maternal grandfather so wished, to make the children available to spend time with him.    

7. The mother has never made adequate contribution to the costs of the children since they left her care.  At that time, it appears as though the father may have had substantial arrears of child support payable to the mother.  At present the mother contributes only $30.00 per month for the children.  It is not because she is unemployable; she has qualifications which would see her employable in the mines earning considerable income, and hence able to contribute to the costs of maintaining the children.  I am deeply suspicious that the reason why she has not utilised that is because it would see her paying money to the father by way of child support.

8. I am not persuaded that there has been any family violence involving either the children or a member of the children’s family.  I have specifically dealt with the issue of the father allegedly grabbing D by the throat, but I should also say that I am not persuaded that the father has behaved violently to the family pets as alleged by the mother, or otherwise has been a violent person during the course of the relationship.

9. From time to time there have been, without admissions, family violence orders made, but there is nothing from those that I can relevantly infer.  Moreover I note that the mother did not ultimately press her family violence order once she left Queensland, and has not sought a similar order in Western Australia.

10. These proceedings have been outstanding for an inordinate length of time.  This is a consideration which must therefore be given prominence in this case.

PARENTAL RESPONSIBILITY

1. The parties’ inability to communicate in a child focussed and respectful way wholly precludes any prospect that any form of shared parental responsibility – whether equal or otherwise – as being in the best interests of the children.  It would be unworkable mayhem.  It follows that parental responsibility should go to the parent whom assumes primary care.

WITH WHOM SHOULD THE CHILDREN LIVE

1. The following points are in favour of the children remaining with the father, and tell against the proposal proffered by the mother:

   ·The mother would not facilitate a meaningful relationship between the children and the father, and hence the only way in which they will get to experience that relationship is if they live with him;

   ·The father is an adequate, but not exemplary, parent;

   ·The father is likely to facilitate a meaningful relationship between the children and the mother, and hence in his care the children are likely to derive benefits from a relationship with both parents;

   ·It would likely see the children maintain relationships with the grandparents on both sides of their family and two cousins in the Town E district;

   ·It will enable the children to continue to experience their father directly, rather than influenced by their mother’s views.

2. On the other hand the following matters tell in favour of the mother’s case, or are adverse to the father’s:

   ·In the last two years when the children have been in the father’s care, D’s weight has increased, his grades have slipped and his conduct at school has worsened;

   ·The children have expressed wishes to live with the mother.

3. In my view balancing those competing considerations sees the children’s best interests lie in remaining to live with their father.  There will therefore be an order to that effect.

TIME AND COMMUNICATION WITH MOTHER

1. The father and the Independent Children's Lawyer ultimately agreed that, if the children were ordered to live with the father, then they should spend all of the June/July school holidays with the mother and one half of the Christmas school holidays with the mother in Western Australia.  The mother did not specifically articulate orders in that event.

2. Although far from ideal, I am satisfied that these orders are indeed in the best interests of the children, because:

   ·They see the children spending a reasonable amount of holiday time face-to-face with their mother, without wholly removing the opportunity for them to spend holidays with the father;

   ·Whilst more frequent contact might be desirable, the reality is that the parties cannot afford it.

3. That then brings into focus who should pay for the cost of those fares.  I am satisfied that it should be the mother, principally because she does not otherwise contribute to the maintenance of the children, although she would, if she chose to deploy her earning capacity in the mining district where she resides, be able so to do.  Moreover, I am mindful that it is the mother who has moved to the remote location; having caused the problem, from at least a moral perspective, it is she who should solve it.

4. Turning then to communication, the mother proposes that the children should maintain their present Skype arrangements of three times per week with her, whereas the father and Independent Children's Lawyer say that they should be reduced to two.

5. The reasons which motivate them to say that is because of the considerable upset which from time-to-time is obvious from the transcripts.  Also it appears as though frequently one or both of the children are bored during the course of the Skype, which causes D, and perhaps B, to misbehave.  It is contended that if the communications were reduced to two times per week, rather than the present level of three, the opportunity for boredom would be reduced, but conversely the events which could be discussed to supplant boredom would be spread across two, rather than three, conversations.  I am satisfied that indeed that regime would be in the best interests of the children for those reasons.

6. In the past there has been a difficulty with the timing of Skype.  Previously it has been at 5:30pm, although the father wishes to have dinner at 6:00pm.  There has then been an opportunity for the mother to, in effect, blame the father for the children not being able to continue to speak to her.  For those reasons the father and Independent Children's Lawyer propose that the Skype should now commence after dinner at 6:30pm.  I am satisfied that indeed that would be appropriate and will so order.

OTHER ORDERS

1. In discussion with counsel for the father and Independent Children's Lawyer, I raised whether or not there should be an order to cover the eventuality that, if he remains living in the Town E district, then upon the maternal grandfather giving notice to the father that he wishes to spend time with the children, that they be made available under an arrangement similar to that which presently prevails by agreement, namely each alternate weekend from 5:00pm on Saturday to 5:00pm on Sunday.  Ultimately the father accepted that such an order would be in the best interests of the children.  I am satisfied that it indeed would be, because it will give them an opportunity not only to continue to experience their good relationship with the grandfather, but also because it will provide the children with a concrete reminder of their mother’s family more broadly.

2. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are appropriate and should be made in the best interests of the children.

PROPERTY PROCEEDINGS

Relevant statutory provisions and legal principles

1. Section 90SM of the Family Law Act deals with the division of property of parties to a de facto relationship which has broken down.  It has long been established that the preferred approach to be adopted to determining property disputes under the identical provisions which apply to married parties (s 79) is a four step one which involves:

   ·The identification of the property of the parties including their assets, financial resources and liabilities;

   ·The evaluation of the “contributions” or s 79(4)(a), (b) and (c) issues;

   ·The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) including, by reference to s 79(4)(e) the matters set out in s 75(2); and

   ·A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.

2. After the High Court’s decision in Stanford v Stanford[3] it may be taken as commonly accepted that the first step requires the identification of the parties existing legal and equitable interests in property, and thereafter, it is incumbent upon the court at the outset to determine whether or not it is just and equitable to make an order altering the interests of the parties in that property.  However as the High Court itself indicated in Stanford, in many cases that step will be uncontroversial: for instance, if there is jointly owned property which is impracticable for the parties to jointly enjoy after separation, such as the former matrimonial home.

   [3](2012) 247 CLR 108.

JUST AND EQUITABLE TO ADJUST AT ALL

1. Both parties are agreed that there needs to be an adjustment of the parties’ interests in property, because the only controversial asset is a sum of money presently in a Solicitor’s trust account in joint names.  I accept that submission, however the matters in dispute between them are slender in the extreme.

THE POOL

1. I find that the pool of assets and liabilities are as follows:

   ASSETSHUSBAND               WIFE  JOINT

   Sale proceeds           8,066.49

   Commodore vehicle           2,000.00

   Holden Vehicle           3,500.00

   Household contents             700.00  700.00

   Superannuation  30,370.30                 4,062.25

   Total33,070.30                 8,262.25  8,066.49

   LIABILITIES

   Government debt                  34,000.00

   Car HP17,000.00

   Credit cards  20,000.00

   Total34,000.00                 37,000.00

2. From that it can be seen that even taking into account the joint funds, these parties are in a position of net debt.

3. As finally crystallised, the only matter in dispute between the parties was the solicitor’s trust account monies.  Otherwise it is agreed that each party should continue to retain to the exclusion of the other assets presently in their possession or under their control.

CONTRIBUTION

1. The mother’s position appears to be that the parties’ contributions were equal, save that she brought in a disproportionate amount of money derived from her family, which was used to purchase the former matrimonial home in December 2004.  Particularly she says that she introduced about $12,000.00 from the sale of Commonwealth Bank shares, and seemingly derived from her mother or grandmother, she introduced another $4,500.00 towards the purchase price.  The father appears to concede that the mother did indeed bring into the relationship a small inheritance, but did not believe it to be a substantial amount and thought that the funds were used on general living expenses.  He also appears to contend that at separation the Commonwealth Bank shares continued to be held in the mother’s name.  The mother denies that.  The issue was not addressed in cross-examination of either the mother or the father.

2. Moreover, the father says that in about 2003 he received a payout arising from the accident in the sum of about $40,000.00, of which sum $12,500.00 was used to purchase a car, and the balance deposited in a joint account, being later deployed towards the purchase of the former matrimonial home and living expenses.  Further, he says that as a result of a work injury, he received a further payment of $21,000.00, although it appears as though the majority of this was used to pay legal fees.  He appears to argue that, in effect, these sums offset the mother’s inheritance.

1. The issue is further clouded by the fact that post separation, it appears as though the mother continued to service the mortgage on the former matrimonial home by recourse to her superannuation funds, whereas the father did not contribute to the mortgage.

2. The state of the evidence makes it difficult in the extreme to resolve the differences between the parties.  Doing the best that I can however, I am of the view that, particularly given that this was a 10 or 12 year relationship, the parties’ contribution should be adjudged as equal.

SECTION 90SM(4) FACTORS

Overview

1. No party argued for a disparate skew based upon s 90SM(4) factors. However nonetheless that does not absolve me from considering those matters in determining what is a just and equitable division between the parties.

Age and health of the parties

1. The father is presently 48 years of age and in good health.  The mother is presently 44 years of age and also in good health.

Income, property and financial resources and capacity for employment

1. The father is in a position of net debt to the extent of $1,000.00.  That is even taking into account his superannuation entitlements as if they were presently vested property.  The mother is likewise in a position of net debt, again even taking her superannuation entitlements into account as presently vested property.

2. The father has an average weekly income of $1,227.22, and it was not suggested that he was working below his earning capacity.  The mother has an average weekly income of $535.00 derived from, it seems, a combination of her employment in the information and fitness industries.  It was contended by the father, and conceded by the mother, that if she was employed as a bulldozer driver, for which she is qualified, she could earn considerably more than that.  Her oral evidence that she could not obtain that employment because of physical limitations was not supported by any medical evidence.  Moreover I note that her obtaining of this qualification is relatively recent.  Therefore why she would obtain the qualification if it were unable to be practically deployed by her, was unexplained.  I note that her partner, Mr M, also has an average weekly income of $1,150.00, making the combined household income some $1,685.00.

3. Neither party will be able to access their superannuation for some time.

Care or control of the children

1. The orders which I will ultimately make will provide for the father to have primary care of the children, and unfortunately, given the distance between where the father presently resides and the mother lives, the mother will only have some limited block holiday time, which falls far short of substantial and significant time.

Commitments for necessary support

1. The father contends – and was not challenged – that he expends $1,247.97 per week to support himself and the children.  The mother’s total weekly expenditure is only $224.65, no doubt largely because she, on her evidence, pays nothing towards her accommodation costs in her partner’s home.  This includes payment of $7.65 per week for child support.

Responsibility to support any other person

1. The mother appears to be supported by her partner rather than vice versa.  The father is obliged to maintain the children who are manifestly not properly not provided for by the mother’s child support.

Pension allowances or benefits

1. The father is in employment, but also receives family assistance benefits.  The mother does not receive any pension or government allowance or benefit.

Reasonable standard of living

1. No party relied upon or put any material relevant to this heading.

Other s 90SM factors

1. The mother will be obliged to pay the costs of travel under these orders.  They are likely to be substantial.  They are likely to comprise a substantial part of the costs attributable to the children. 

2. I can identify no other s 90SM factor which is relevant to this case.

Evaluation

1. I am satisfied that the parties’ s 90SM factors should be viewed as equal, and there is no adjustment required by reference to them.

CONCLUSION

1. The parties’ contribution based entitlement to property are equal; no adjustment under s 90SM is warranted. I am satisfied that an equal division of the only remaining joint asset, namely the monies in the trust account, sees a just and equitable outcome.

2. For those reasons there will be orders that the parties retain the chattels and property presently under their possession or control, and that the remaining balance of the Solicitors’ Trust Account money should be divided equally between the parties.

I certify that the preceding one hundred and eighty one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 November 2015.

Associate: 

Date:  20 November 2015