GAUCHO & GAUCHO

FAMILY COURT OF AUSTRALIA

GAUCHO & GAUCHO

[2013] FamCA 120

FAMILY LAW – PROPERTY – greater contribution by husband and his future care of child without child support.

FAMILY LAW - PARENTING – wife not challenging husband’s parenting role but disputing number of days she should have with young child – Child suffers anxiety.

Family Law Act 1975 (Cth)

Browne v Dunn (1894) 6 R 67
Coghlan [2005] FamCA 429
Mallet v Mallet (1984) 156 CLR 605
Stanford v Stanford (2012) FLC 93-518 [2012] HCA 52

APPLICANT:

Mr Gaucho

RESPONDENT:

Ms Gaucho

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

2537

2009

DATE DELIVERED:

28 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

7, 8 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Kelly & Co

COUNSEL FOR THE RESPONDENT:

Mr Redford

SOLICITOR FOR THE RESPONDENT:

Nicholls Gervasi & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

That all extant parenting orders are forthwith discharged.
That the husband have sole parental responsibility for major long-term medical issues concerning H, (“the child”) born … November 2006.
That if a medical issue arises which falls within paragraph 2, the husband notify the wife as soon as practicable before such medical decision needs to be made, advising her of his proposed course of action and requesting that she advise him in writing within five days of her proposal, which the husband shall consider, and after such consideration, the husband shall advise the wife of his decision.
That the husband be at liberty to produce a copy of these orders to any medical or health professional for the purposes of establishing his right to make the necessary medical determination and the wife shall be at liberty to produce a copy of these orders for the purposes of obtaining any information about the child.
That otherwise than set out in paragraph 2 hereof, the husband and wife have equal shared parental responsibility for the child.
That the child live with the husband.
That the wife spend time with the child as follows:
(a)Until the conclusion of and including, the school Term 1 holidays in 2013;
(i)On each alternate Friday from after school (or 3.30pm if the child is not in school) until 5.00pm on the Saturday evening;
(ii)On each alternate Thursday from after school (or 3.30pm if the child is not in school) until the commencement of school or 9.00am on the Friday morning commencing in the week before or after the commencement date of (i) above;
(b)From the first week of school Term 2 in 2013, and continuing the time rotation referred to in (a) above, from:
(i)Friday after school until Monday before school in one week; and
(ii)Thursday after school until Friday before school in the other week;
(c)Until the end of 2014, for a period of three consecutive days in each week of the term holidays by agreement and in default of agreement, for the period from 9.00am on the Sunday until 9.00am on the Wednesday in each week;
(d)Save for the period in paragraph (8) below, until the end of 2014-2015 long summer holidays and commencing with the holidays beginning in 2013-2014, (which shall be deemed to commence at 5.00pm on 26 December and conclude at 5.00pm two days before school resumes), on a week about basis from 5.00pm on the first day until 5.00pm on the seventh day thereafter;
(e)From the beginning of 2015 school year, for one half of all school term holidays by agreement and in default of agreement, the first week (and such term holidays shall be deemed to commence at the moment school concludes and end at 5.00pm on the night before school resumes) and the midpoint for the purposes of any handover shall be 5.00pm on the mid-Saturday regardless of whether that is mathematically one half;
(f)Save for the period in paragraph (8) below, from the commencement of the long summer holidays beginning in December 2015, for one half of those holidays and the holidays shall be deemed to commence and conclude as set out in sub-paragraph (d) above. In default of agreement, the wife shall have the first half;
(g)For the specific period from 12 noon on 25 December 2013 until 12 noon on 26 December 2013 and for a similar period in each alternate year thereafter (noting that regardless of what other orders apply, that the child shall spend the period from 12 noon on 24 December 2013 until 12 noon 25 December 2013 with the husband and for a similar period in each alternate year thereafter);
(h)For the specific period from 12 noon on 24 December 2014 until 12 noon on 25 December 2014 and for a similar period in each alternate year thereafter (noting that regardless of what other orders apply, the child shall spend the period from 12 noon on 25 December 2013 until 12 noon on 26 December 2014 with the husband and for a similar period in each alternate year thereafter);
(i)On Mother’s Day for the whole of that day (and any time with the mother that should occur on Father’s Day is suspended).
In each alternate year commencing in December 2014, regardless of the orders above, the husband is at liberty to remove the child from the Commonwealth of Australia if he notifies the wife by 1 October that he intends to leave Australia for the purposes of international travel predominantly to the United Kingdom and his absence with the child may be up to four weeks.
If the husband notifies the wife by 1 October in the relevant years of his intention to travel internationally, the wife shall have make-up time for one week before the husband leaves and one week after the husband returns, regardless of whether the child is on school holidays or not.
For the purposes of paragraph 8, the husband shall by 1 December in that relevant year, provide to the wife his itinerary including flight details and locations of the child whilst he is to be overseas.
Whilst away overseas, the husband shall arrange for a Skype communication at least once per week between the child and the wife at a time to be agreed and in default, on each Wednesday at the end of the United Kingdom day and before the child would be expected to go to bed.
At all times other than school changeovers, the wife or her partner shall collect the child from outside the home of the husband at the commencement of contact and the husband or his nominee shall collect the child from outside the wife’s house at the conclusion of the contact.
That the husband retain the child’s passport.
That the husband be at liberty to nominate the child’s medical practice and the wife shall have all rights as a parent to attend there and be provided with information about the child’s health.
That for the period of the next five years, the wife authorise and direct her psychiatrist Dr N to advise the husband in writing but only upon his request and no more often than every three months, of the following (and at the husband’s expense):
(a) Whether the wife is still his patient;
(b) Whether he is satisfied that the wife is mentally well;
(c)Whether the wife (to the best of his knowledge) is medication compliant; and
(d)Whether the wife has been attending his designated appointments.
AND IT IS NOTED THAT DOCTOR N has indicated reticence about this order but said he will comply if it assists with the child’s welfare.
That for the purposes of assisting Dr N, the Independent Children’s Lawyer provide Dr N with a copy of these orders.
That until the parties agree otherwise, each continue to use the communication book in addition to any other means of communication about the child.
That on or before 4.00pm on 31 May 2013, the husband pay to the wife $45,000.
Contemporaneously with the payment in paragraph (18), the wife:
(a)Transfer to the husband at his expense, all of her interest in the home in the joint names of the parties at Suburb Y;
(b)Provide to the husband a discharge of any caveat lodged by her or on her behalf including any lodged by the Legal Services Commission, South Australia.
Contemporaneously with the said payment, the husband arrange for a discharge and release of the wife from any joint obligation to Bank SA encumbering the said home.
In default of payment of the said sum referred to in paragraph (18) on the date there set out, the husband and wife do all things necessary to place the Suburb Y home on the market for sale by auction on terms to be agreed and failing agreement, as fixed by the Court and upon the settlement of the sale, the proceeds be applied:
(a) First to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage to Bank SA;
(c)Thirdly to pay to the wife 30 per cent of the balance (from which sum any caveat caused by her or for her benefit shall be paid) together with interest under the Family Law Rules from the date referred to in paragraph (18) until the payment; and
(d)Fourthly, to pay the balance to the husband.
That each party otherwise retain to the exclusion of the other, and the other party shall relinquish any interest in such assets in the possession of that party as at the date of these orders (noting that this order shall deem superannuation to belong to or be in the possession of the person named as the employee for superannuation purposes in the policy).
That forthwith, the husband make arrangements for delivery to the wife of the following:
(a)copies of photographs of the child’s birth and any other pre-separation photographs including those of the child and his maternal grandfather;
(b)the wife’s personal photographs contained in the wicker basket in the former matrimonial home;
(c)her scrapbook;
(d)her mountain bike;
(e)her personal game collection;
(f)her indoor carpet bowls set gifted by her grandfather; and
(g)her diving equipment.
That upon the request of the husband, the wife do all such things as may be required to resign as a Director and Secretary of Gaucho Pty Ltd and transfer all of her shares in that company to the husband at the expense of the husband.
That upon the request of the husband, the wife do all such things as may be required of her at the expense of the husband to renounce any interest she may have in the Gaucho Family Trust.
That save as to the issue of costs, all outstanding applications shall be dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaucho & Gaucho 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

FILE NUMBER: ADC 2537 of 2009

Mr Gaucho

Applicant

And

Ms Gaucho

Respondent

REASONS FOR JUDGMENT

The dispute between Mr Gaucho, (“the husband”) and Ms Gaucho, (“the wife”) relates to both property and the parenting orders. The latter concern the future of their son H, (“the child”) who is now six years of age.
The parenting issue was largely about decision-making for the child and what time he should spend with this mother.
The property dispute involved an argument about what each party had done during and after their relationship. The reality is the only asset of substance that they have is the limited equity of about $150,000 in their former home.
Each party has also spent whatever equity they might be entitled to receive from a property division on legal fees in this acrimonious dispute.
Initially the case was listed for five days but with the good commonsense of counsel, many of the issues were truncated. The affidavit material was voluminous but counsel did not cross-examine extensively upon it and there was agreement that no party would rely on the rule in Browne v Dunn (1894) 6 R 67. Having said that, the parties did rely upon the affidavit material and to the extent that it was relevant, I have taken it into account.
The parenting issues for determination were:
(a)Should an existing final order for the husband to have sole parental responsibility for the child (albeit it was described as reviewable by the parties themselves when it was made) be continued? Or should a new order for equal parental responsibility be made? And, should there be orders for specific responsibility for all decisions or just medical issues?
(b)What time should the wife spend with the child? Should it be Thursday to Monday or Friday to Monday? And in any event, when should either of those periods commence on a permanent basis?
(c)What period of time should the child spend with the wife during holiday periods? What should be the child’s period of absence or separation from the husband?
(d)When changeover occurs, should it be at school, or should it be at 5.00pm because in the latter, the husband would have an opportunity (as he saw it) to observe and assess the wife’s state of mental health.
(e)Should the husband have access to information from the wife’s psychiatrist about her state of health? The husband wanted it, the wife was not troubled about providing it but the psychiatrist was distinctly unhappy about it.
(f)Should the child continue to participate in psychotherapy with a psychiatrist (with expertise in child and adolescent behaviour) and if so, for how long? Should the wife be involved in that process? If it should continue, should it be with a new professional other than the current psychiatrist?
(g)Should the child be permitted to travel overseas with the husband to the United Kingdom (which is the husband’s place of birth) and if so, for how long in each alternate year and how should any adjustment of time with the child be made in the wife’s favour?
Other initially contentious issues were resolved but only during the wife’s cross-examination where considerable insight into these issues became apparent. Sadly they came at a very late stage of these proceedings.
Despite hearing evidence of the expert professionals first, in cross-examination, the husband did not alter his position. To his credit, in November 2012, after my discussion with all counsel, the husband abandoned the requirement that the wife’s time with the child continue to be supervised.
Thus, the husband’s primary parenting responsibility of the child was not challenged nor was it an issue for my determination. The parenting issues however, were difficult for the parties to resolve themselves because of the acrimonious attitude each has towards the other.
I propose to deal with the parenting question first. Leaving aside the issue of parental responsibility, the father’s position about the time between the wife and the child was that it should be eventually four nights per fortnight and a sharing of school holidays from June 2013. The mother’s position was that it should be five nights per fortnight, not in a block but in two parts in each fortnight. She also sought a sharing of the school holidays. Much of their argument was about the timing of things changing. The Independent Children’s Lawyer’s position was that the wife should have four nights per fortnight in two blocks. A variety of other positions were taken by the parties and those issues are canvassed in these reasons. The important starting point to note was that the wife conceded the major parenting role to the husband.

History

The husband is a 42 year old tradesman who conducts his own business. He was born in the United Kingdom. The wife is employed in the education field, works on a casual basis and is 33 years of age.
The wife has been diagnosed with bipolar disorder. She regularly sees psychiatrist Dr N and she maintains her medication under his watchful eye. There have been two major incidents since separation which not only exacerbated the problems of the wife’s health but also dramatically brought about the change of the child’s residence.
The child H is the parties’ only child.
The parties’ cohabitation began in 2000. They worked in Australia including in jobs such as casual labouring. At that time, the wife held a qualification in the field of Tourism although she was not working in that field and the husband worked as a tradesman. Because of the husband’s visa obligations, both parties went to the United Kingdom until the husband’s Australian residency was successfully determined .
The parties married in 2003 and the wife returned to tertiary education. She was financially supported by the husband.
Despite the apparent idyllic nature of their initial and immediate post-marriage existence, both parties have now looked at that history through a prism of an unhappy broken relationship. The husband pointed to the minimal income earned by the wife and how he was the primary source of support. The wife pointed to her homemaker and parent role which she fulfilled in respect of the child and observed that the husband worked long hours which, by inference, meant that she was carrying the greater parenting and homemaker responsibility. No doubt in 2003 and thereafter, the husband was prepared to endure the absence of financial contribution from the wife as she studied because ultimately, both saw benefit in her pursuing tertiary education. The parties were then presumably prepared to endure all of that for the long term benefit of a financially stable family.
The effort each party made was then seen as important at the time. They then treated their relationship as a form of partnership with each bringing unique skills. Eight to ten years later, the prism of unhappiness must not ignore that history nor the fact that each was then content with it. Part of their goal was to own a home. In November 2004, they purchased it in joint names with the majority of funds coming from the mortgagee bank.
The deposit for that home came from the parties’ savings. They had been together for about four years but I find that at the commencement of the relationship, the husband had significant savings. Those savings enabled them to buy the home and it was at a time where the husband was the main financial provider.
Final separation occurred whilst the parties were in the United Kingdom and the details of how or why that occurred do not matter. Suffice to say, when the wife returned to Australia she suffered the first of her serious health issues and required hospitalisation. The manifestation of her illness was described by Dr N as manic behaviour.
When the wife was hospitalised, the child was initially cared for by the wife’s relatives. Upon release from hospital, the wife resumed care of the child and lived with her mother from whom she is now estranged. That relationship has been difficult since the wife was a teenager.
Both the wife and her mother gave evidence about problems that occurred during the post-hospital period and again, the facts do not matter. The wife was assisted by her mother but then moved to a variety of addresses. The husband complained about those address changes because he was unable to keep track of the wife’s address and her telephone number. At that time, she had the child with her. It was put to the husband that his pursuit of the wife was an effort to control her. He denied that and I accept that he had a real concern about her health and her ability to care for the child. But I also take into account that he wanted to spend time with the child. Indeed, not long thereafter, the parties had a period where they shared the child but that too ended with the wife’s second period of hospitalisation. Up until then, an alternating arrangement of three days with one parent and four with the other occurred. Perhaps unnecessarily, the husband was quick to point out that the shared parenting was when the wife was living with her mother. Be that as it may, the wife was still caring for the child even if she had the assistance of her mother.

In subsequent court orders there was no restriction or supervision of the wife’s time with the child. That changed in the middle of 2010. At that time, there were indications of the emergence of manic symptoms which required alteration to the wife’s medication and an increased number of attendances upon her psychiatrist.
For his part, the husband’s description of this period concerned the wife’s aggression towards him and her allegations that he had failed to properly care for or protect the child. One such example was that there were complaints of sexual abuse of the child by another child. The husband gave evidence about the wife’s demand that he cease his association with the other child’s parents. He refused. That refusal led to the wife over-holding the child. In addition, the communications between the parties were generally poor and the husband complained of abusive text messages from the wife. The wife acknowledged she had acted badly.
The wife had a different perspective about what was happening but I am not required to make a finding about any of that. This all occurred when Dr N saw the emergence of the wife’s mania. On any view, her behaviour concerned him.
The parties went back to the Federal Magistrates Court on 19 November 2010 and the earlier orders were suspended. New orders severely curtailed the time between the child and the wife .
In the weeks after the November hearing, other orders were made focussing largely on the mental health of the wife.
Problems again arose in July 2011 when the husband unilaterally withheld the child from the wife culminating in further proceedings. The Federal Magistrates Court then transferred the matter to this Court.
On 30 November 2011, this Court made an order that the wife have supervised time with the child. The time was limited to three hours on a Sunday and three hours on a Wednesday. There was also a provision enabling the husband to travel with the child to the United Kingdom but there was also meant to be Skype communication between the wife and the child whilst he was away. That apparently did not work.
The proceedings before me concentrated on how the supervised time had progressed. Medical evidence from the wife’s doctor supported increased and unsupervised time by the wife but that was not accepted by the husband as a basis for change. That led to counsel for the wife alleging that the husband was zealous in his approach ensuring that every supervisor knew exactly what was going on. At least on one occasion, the husband reported concerns to Families SA. I do not propose in these reasons to criticise the husband for that zealous behaviour. Having regard to the evidence of Dr N as to the manifestation of the wife’s illness, I thing caution was warranted.
Until the parties had separated and thereafter, I am satisfied that the wife was the child’s primary attachment figure.
The illness of the wife, her inability to care for the child, the over-holding by the husband and the changing of the arrangements by the Court, all gave rise to a significant anxiety for the child. Therein lies the problem.
The child suffers anxiety and I find it still exists to this day. He is very concerned about his mother’s absence from his life and at one point in his therapy, has indicated fear that she had died. He expressed anger about her leaving him. That affects my approach to working out what time is appropriate between the child and his mother.
The periods of supervised contact have shown that he is happy to be with the wife. It was only in the period immediately prior to Christmas 2012 that both parties indicated that the child had settled. He seems to understand that there are two parenting regimes for his future. The extent of his understanding about his future care is not known.
It would be remiss of me not to make clear that the acrimonious relationship between the parties has not ameliorated the anxiety problem in the child. It was the wife’s case that the husband is a controlling person. Having regard to the examples to which I shall now turn, I do not accept that the husband was endeavouring to cut the wife out of the child’s life nor take some litigious advantage by virtue of her illness. I find he was genuinely concerned about the welfare of the child.
Such was the lack of trust between the parties that in 2011, when they had a dispute over medical issues, the husband contacted Families SA expressing his concern. The wife alleged the husband was malicious because he knew that she had some Families SA connection through an agency involved with her employment. I accept the husband’s response was that he perceived that the child was being taken to doctors when he was not ill. I do not find his complaint was malicious but rather, an expression of his concern.
Another example was that the child was having difficulty breathing and the wife gave him her own Ventolin. There is little doubt that in 2009, the child was prescribed a child’s version of Ventolin with the appropriate equipment. In the hearing, I expressed concern that what the wife had done was inappropriate but as the evidence unfolded, the application of the Ventolin had been with the knowledge of a doctor and also a retired pharmacist family member of hers. This was one of the problems caused by the lack of trust between the parents; the husband saw it as dangerous because the wife had been previously diagnosed as ill but she had insisted that she was only concerned with the child’s health. Again, it is not necessary for me to make a finding in relation to the appropriateness of her decision. My reaction to that evidence makes the husband’s concern understandable. It is for reasons such as that, I would not criticise the husband’s cautiousness.
A further incident occurred after the orders were made requiring supervision. The wife attended at the child’s school and whilst the husband was in the playground, she went to take the child to his classroom. She said she was encouraged to do so by the teacher and there were other parents around with children. The inference was obvious that she saw there was nothing wrong in what she was doing. In cross-examination of the husband, counsel for the wife put that there was nothing wrong with what the wife did. He put to the husband that his objection to her conduct was his just being difficult and controlling. Regardless of the advice to the wife about the need for supervision, the views of a teacher and her own view about her capacity to care for the child, the supervision order had still been made and was in place for a purpose. Bearing in mind the medical problems of the wife, I would again not criticise the husband.
Thus, there is no doubt that during the exchanges of the child, the relationship was at best, poor. To her credit, in cross-examination, the wife conceded that she was not blameless in that area. The parties also each pointed to behaviour such as filming one another and being generally unpleasant. All of that contributed to the reticence of the husband to agree to relax his position in relation to the supervision of the child until the end of 2012.
On 30 November 2012, I made orders by consent of the parties. The child was to be handed over outside the residence of the wife. The wife and counsel for the Independent Children’s Lawyer read the order to mean that the husband had to be present at both the delivery and collection of the child. He was not present on the last two occasions immediately before the hearing began and the handovers were undertaken by the wife’s mother. It was not clear to me why the orders had been drafted that way by the parties in the first place. The husband had clearly wanted to be present (and still does) so as he saw it, he could see whether the wife’s mental health had been deteriorating however, he delegated the handover task to her mother. The wife did not (and does not) want anything to do with the husband because she has found him controlling and obtrusive. This caused arguments about who was at fault in relation to the handovers. It was put to the husband that he had failed to comply with the order and he agreed that was “technically correct”. Nothing much turns on it but it indicates the level of mistrust which needs to be resolved if the child is to avoid being dragged into his parents’ conflict.
Another example of the poor relationship between the parties (as distinct from their respective relationships with the child) was that the wife became aware that the child was going to spend some days in Canberra on a holiday. She knew no details and inquired what the trip was about. The husband did not respond. It transpired that he had made a decision at the last minute for the child to have a holiday with relatives. It was the wife’s mother who took the child and he was away from his father for five days.
The Canberra trip provoked cross-examination about what was appropriate for the parents to know about the plans and activities of the other. The husband’s position was that whilst the child was in the wife’s care, whatever she did was a matter entirely for her. I sensed that he made that statement reluctantly but I am convinced he did not see the benefit of the child being able to share with both parents the experiences of his activities as well as being able to talk about them in advance. The wife’s position was that when the child was going overseas and interstate, she would like the courtesy of an itinerary and information about the activity. In my view, the wife’s intuitive response gave an indication that she has insight into the problem of her relationship with the husband as a parent and that it needs to be fixed. I am not at all convinced that the husband sees the problem nor has insight as to the problems it causes. Even with a communication book, there is a long way to go.
The wife produced entries from the communication book made after the 30 November 2012 orders. The information was innocuous but sensible and child-focussed. The entries showed that each party can communicate appropriately about the child’s progress. When the child changes households, the receiving parent has some idea of tiredness, illness, activities and interests. Despite the fact that these are commonsense issues, because of examples such as those above, both parents have failed in their parenting responsibility and show a flaw in their parenting capacity.
I now turn to the evidence of the experts.

Ms W

Ms W is a psychologist with many years experience. Her Masters Degree in Clinical Psychology was conferred in 1996 and since that time, she has been writing reports about families for courts. Counsel did not challenge her expertise.
Ms W has been the significant welfare reporter in this case since it commenced.
One of the limiting factors of the evidence of Ms W was that she last saw the child and the parents in early 2012. She was only able to report on her observations at that time and to hypothesise on the facts presented to her based on the child’s behaviour now. Despite the fact that the last observation was in 2012, I found Ms W’s evidence helpful. It was also consistent with the witness Dr P.
In May 2012 Ms W observed that the child was anxious. She described him as a young child who had been through a lot and she felt that the parties needed to make changes slowly. She thought that the manifestation of his anxiety would be apparent in sleeping problems, bedwetting, distress at leaving a parent and bad dreams. She pointed to possible behavioural problems such as acting out, being angry, and demanding.
The evidence of both parties has been that since December 2012, things have gone relatively smoothly. There have been no serious problems. The wife qualified this “smoothness” by saying that the child went to bed “relatively easily with some encouragement”. That was a reference to the fact that he had to be convinced to sleep in his own bed and without any form of nappy. She said that he was quite excited to be in her care and that of her partner when he woke up the next morning.
Although Ms W’s evidence was limited to what she observed in May and in 2011, the evidence of Dr P suggests that the child’s anxiety has not gone away and the manifestation of the problem as described by Ms W is still evident.
Ms W spoke to Dr P and also obtained a report from the child’s school. Her concern was that with the commencement of a new school year with new-found friendships and a new teacher, there may be difficulties and again, changes needed to occur slowly. Ms W’s view was that the child needed time to adapt and even at the suggestion of a three month lead-in time for any major change, she was uncertain as to how successful it would be. It was not surprising therefore that Ms W returned to the theme of concern about the impact of the high level of conflict between the parties on the child. It must be seen as affecting his anxiety particularly where the parties do not show any respect for one another. She said in circumstances where the relationship was acrimonious, there were no negotiations and co-mediation was doubtful, the Court should act cautiously. That affects not only whether a significant sharing of parenting can occur successfully but also gives an insight as to whether decisions could successfully be made.
One of the identified issues in this case has been the on-going involvement of a therapist with the child and Ms W described Dr P as a stabiliser. She said that Dr P was recognised for her speciality in play therapy with children and that it was clear to her that Dr P was a person who could and should monitor the child’s development over the ensuing year.
Ms W was asked about the duration of holiday times and she thought that four weeks away with the husband would be fine but that depended upon cooperation and how well the whole episode was planned. Bearing in mind my earlier remarks about the Canberra trip, the prospect of any joint planning seems doubtful.
Ms W acknowledged that when she saw the child in May 2012 (the last occasion) she did not see any anxiety at all. She said it was quite the opposite; she saw a happy little boy. She pointed out however that other people had seen his anxiety and she was not at all surprised.
Ms W was asked about all of the things that had been reported by both parties subsequent to 30 November 2012 and it was put to her that these indicated that the child was no longer suffering any form of anxiety. Whilst Ms W acknowledged that the post November 2012 indications were evidence of a lack of anxiety, she said it depended entirely upon what occurred after the changeovers. The parties’ evidence concentrated on their behaviour rather than how the child reacted.
Notwithstanding the parties’ own description of how successful the various contact periods had been, Ms W was not prepared to change her view that things should proceed slowly.
Ms W’s mind was turned to the question of whether or not it was better to change the current regime on a step basis or in one attempt. Her view was that the stabilised relationship could fall apart if it was done too quickly. She thought that the child would be fine depending upon how he settled into school and how the changes occurred. She did not doubt that the child wanted to spend more time with his mother. As it is now well into the first term of school, I think enough time has passed to obviate the stepped approach.
I found this witness helpful and objective. I accept her evidence even despite the limitation that she had not seen the child for some months.

Dr P

Dr P is a child and adolescent psychiatrist. She has many years of experience and has been working with the child for a number of years through psychotherapy.
Dr P diagnosed what she described as an unheralded trauma problem arising out of the separation. That trauma was simply being separated from each parent and in particular, the wife falling ill. The wife’s illness at that time gave rise to the child being taken out of the care of both parents.
Dr P said that because of the child’s age and his language skills, her observations came from his form of play. She said that if he was missing a parent, his behaviour became more anxious. Of late, she described him as sad. That is important because she had seen him in December during the period of time that the handovers and new contact regime were occurring which the parties themselves described as successful.
Dr P also returned to the same theme of the conflict between the parents and said that for so long as that continued, the anxiety would continue.
Dr P thought that the Court could make things better by stabilising the relationship through orders. Once orders were made, the child could set into a routine knowing full well what he would be doing in the foreseeable future and the parties would therefore be able to plan.
The wife acknowledged that she had been invited to attend upon Dr P to discuss the child but when the invitation was issued, she thought it inappropriate. That was most unfortunate because her reticence was based on a lack of trust in Dr P. Dr P made clear that she was still willing to see the wife and also for her to bring the child. She said that the door was always open not to mention the telephone.
Counsel for the wife put to Dr P that the bewilderment suffered by the child was normal for a child in a marriage breakdown. Dr P agreed but said this case was different because the child had been given no clear understanding of why he had been separated from his parents and he was living with people with whom he had no attachment. In Dr P’s evidence, it became clear that in one part of the therapy, she perceived the child expressing the view of his mother having died. That suggests a permanence about his mother’s absence.
Counsel for the wife also suggested to Dr P that some of the correspondence indicated that there was no diagnosis of any psychiatric issue concerning the child. I accept that the focus of Dr P was on the anxiety issue and it was not suggested that her method of treating the child was inappropriate.
Dr P said the child suffered an anxiety that was exhibited in his anger but also in that he would go outside of her room to check to see whether he had been left by his parent. She said that was not something she would have expected from a child. Dr P was not particularly interested in what other people said or saw because she said she relied upon her observations in therapy. She was able to point to research that supported the method she was using.
Dr P was asked what her view was about simply stopping therapy. She said she would be very concerned because the child had previously become distressed when there were breaks but that also depended upon whether or not he was prepared for those breaks. She pointed to the fact that in her own therapy with him, she had been able to explain her holiday absence and she had kept up the communication by the use of cards. In relation to the parents, absence could be covered by such things as Skype. Bearing in mind Dr P’s professional status, I was most impressed that despite being on holidays, she would trouble herself to send a card to a patient.
Dr P’s evidence fits comfortably with that of Ms W. I accept that the child is an anxious child and that that is a diagnosis from an expert. It is clear from the evidence of Ms W and Dr P that confrontation between the parties exacerbates the problem.
Just how long the therapy should continue is hard to know. Dr P did not know. The husband wanted it to extend for no more than a further year. The wife’s position in cross-examination was that she was prepared to assist in any way possible. Perhaps these proceedings have made the parties think about the damage being done and just how Dr P is struggling with concepts that the parents do not see.
In my view, the duration of any treatment should be left to the expert. The husband thought that Dr P should continue for a further year but I do not propose to fix any time nor do I propose to make an order that the child continue to see Dr P. If the parties cannot see the benefit in that continued relationship, it is hard for me to see how I can do much if they are not supportive. I propose to leave the decision to the husband.

In her evidence, Ms W said that if Dr P was not to be the person to monitor the child’s progress, someone else should do that task. As she conceded however, the problem with that is that the child would have to re-establish the trust with another person. At the moment, it is clear that the child trusts Dr P. I do not propose to destabilise that situation.

Dr N

Dr N is the psychiatrist who has been treating, and continues to treat, the wife. No challenge was made to his expertise. I found his evidence very helpful.
Dr N has done a number of reports which were attached to his affidavit. Those reports indicated the progress of the wife and the problems as Dr N diagnosed them over the years since the litigation began.
Dr N confirmed the diagnosis of bipolar disorder.
Dr N said the wife was well at the moment and there was no reason why she could not carry out normal parenting tasks.
As for a possible recurrence of the wife’s illness, Dr N indicated that there were caveats to such a prediction but he said that if there was an exacerbating incident, there were warning signs. They included problems with sleep patterns, interaction difficulties with other people, increased indications of feeling under pressure, statements of grandiosity, rigidity of thinking, fixed thinking and a lack of ability to weigh things up. He said all of these things may lead to a manic episode.
Importantly, Dr N said that the wife had learned good insight into her problems so that she would possibly see these things coming and she was living in a relationship with a person who understood the dilemma. Her partner too would be monitoring those problems.
Dr N was required for cross-examination on whether or not he would provide information to the husband on a regular basis about the wife. Dr N was unashamedly reluctant to communicate with the husband because of privacy considerations which he thought were most important. It was not unusual to have discussions with loved ones but certainly not former partners. He went further and said it was ill-advised even if his patient was agreeing and he was not sure why there was any need for it.
When Dr N was asked about the point at which intervention and the dissemination of information to someone such as the husband should occur, his view was that it would only be in circumstances where the wife’s mental health was such that she required involuntary admission or he had concerns about her ability to manage in the community. That has occurred in the past but he was of the view that with the support systems in place that was unlikely in the future. If it did occur, the warning signs would be seen.
When I pointed to the fact that with a history of mental illness of the nature he described, the manifestation of it was not much different to signs of an acrimonious relationship, Dr N agreed. He accepted that the husband would be cautious if not nervous around the wife’s behaviour bearing in mind his focus upon the child. Dr N agreed that under those circumstances, if it would assist, he would provide the necessary information.
The wife’s position was best described as ambivalence because she was prepared to consent to the arrangement.
In my view, the sensible solution is that Dr N, at the request of the husband in writing, but no more than on a quarterly basis, should provide to him in writing and if necessary at the expense of the husband, details as to whether the wife is still his patient, still mentally well, still compliant with her medication as prescribed by him and still attending his designated appointments.
Whilst the husband would seek much more than that, in my view, Dr N is in a far better position to know whether there is a risk of health deterioration than is the husband even though he may have many years of experience in observing the wife.
Dr N’s evidence was limited to the issue to which I have just referred. He otherwise said that in his view, there was nothing unusual about the wife’s mental illness when properly treated. I accept his evidence and it supports the fact that the wife’s time with the child should not be restricted as it has been in the past.

Other witnesses

Ms D

Ms D is the wife’s mother. She is estranged from her daughter.
Her evidence was uncontroversial but she was required for cross-examination. The focus of cross-examination was on the money lent by Ms D to the husband for the purposes of the legal proceedings. She has thus far advanced over $110,000. When asked why that money was provided to the husband (and obviously not to the wife), she responded by saying that she wanted the child to have the best possible care. The obvious reason for the question was to inquire whether Ms D was taking the husband’s side out of dislike for or criticism of her daughter. I carefully listened to her evidence and she acknowledged that whilst their relationship was difficult, she would like to see it improved. Sadly, someone has to take the first step.
Ms D is also the daughter of the wife’s grandfather who passed away in early December 2012. She was estranged from her father for about three years. She was able to tell me something about her father’s wealth but that is now irrelevant because of the provision of the details of the wife’s inheritance.
The evidence of Ms D supported the fact that the husband had legitimate concerns about the care of the child. It was unfortunate that all parties descended to the level of detail that they did. It would be my hope that the parties could see the benefit in having a better relationship for the sake of the child.

Mr F

Mr F is the new partner of the wife. They have been together since late 2012.
Mr F is employed in an education role and previously had worked as a labourer. He has an income of about $60,000 per year. He has two children by a previous relationship and those children live with their respective parents on a week-about basis.
Mr F is the sole financial support for the wife at this stage and in his evidence for which he was not required for cross-examination, he described how his two children who are slightly older than the child H, warm to him and they enjoy each other’s company.
Mr F’s perception was that the wife’s behaviour showed that she was thinking of the child’s needs. He said he too got along well with the child.
The husband expressed concern about problems associated with Skype and in particular seemed to think there was interference but having regard to the nature of the relationship between the parties, it does little to assist my determination.
Mr F appears to be very much involved in the wife’s life and, along with his children, has accepted the child into their household. It was made clear from both Mr F’s evidence and that of the wife that it would be preferable for Mr F’s children and the child H to have their respective times coincide not only for management purposes but also because they enjoy each other’s company. There is some sense in that approach but I do not think it necessary for me to try and structure the orders around that. The parties should use some common sense having regard to the fact that the child benefits from the variety of relationships. If they cannot, the Court should not descend into those details because the primary focus should be on the child and his relationship with his mother.

The legal issue

The law to be applied in this parenting determination is that set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 65D provides that in proceedings for a parenting order, subject to some issues about parental responsibility and parenting plans, the court may make such parenting order as the court thinks is proper.
A parenting order may deal with such matters as where and with whom a child is to live and the allocation of parental responsibility. It may include any aspect of the care, welfare or development of a child but also any aspect of parental responsibility (see s 64B(2)). The Court therefore has power to make an order that directs a parent to fulfil a responsibility about obtaining treatment for a child. That is because parental responsibility means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B). The duty to follow reasonable medical advice such as that offered by Dr P falls within the definition of parental responsibility.
Each of the parents of the child would have had parental responsibility but for the orders made in 2009. Those orders gave the husband the parental responsibility task even if there was a notation to the effect that it was to be reviewed after 12 months. Whilst there may be some dispute as to whether that was intended as a final order, that was the reality. When I canvassed the issue of how that matter should be approached, counsel for the wife submitted that it was the wife’s case that there should be equal shared parental responsibility and as a result, no concession otherwise should be attributed to her.
Despite the finality of the order, there was no suggestion that the issue could not be reconsidered.
In deciding whether to make a particular parenting order, s 60CA provides that the Court must regard the best interests of the child as the paramount consideration.
To put the best interest principles in context, it is important to see the objects of Part VII and their underlying principles. Section 60B provides the focus in relation to those matters. It provides that the objects of the legislation are to ensure that the best interests of the child are met by ensuring he has the benefit of both parents having a meaningful involvement in his life to the maximum extent consistent with his best interests. Those objects require the Court to ensure that he is protected from physical or psychological harm through the exposure to or subjection to abuse, neglect or family violence. The section also requires the Court ensure that the child receives adequate and proper parenting to achieve his full potential whilst at the same time ensuring the parents fulfil their duties and meet their responsibilities concerning the child. There is only so much that the Court can do.
The principles underlying those objects are that children have a right to know and be cared for by both their parents and to spend time on a regular basis with and communicate with them as well as others of significance in their care, welfare and development. The principles also require that parents jointly share duties and responsibilities concerning the care, welfare and development of th child and if possible, that they should agree about the child’s future parenting.
The clear message of s 60B is that it is important for children that parents have a significant role in their development. Parents are expected to provide physical requisites and security. Making parenting orders that give security and certainty for the child may remove his anxiety.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility.
That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. No such finding is made here.
There is a discretionary rebuttal of the presumption if the Court is satisfied that it is not in the best interests of the child for the parents to have equal shared parental responsibility. Some assistance about how to approach the exercise of the discretion is found in s 65DAC. It provides that if two or more persons are to share parental responsibility and in exercising that responsibility, a decision is to be made about a major long-term issue in relation to a child, the order of the Court is taken to require each person to consult with the other about the decision and to make a genuine effort to come to a joint decision about that issue.
Major long-term decisions that fall to be made by parents jointly include issues a long term nature associated with care, welfare and development and include education, religious and cultural upbringing, health, name changes and changes that would make the implementation of living arrangements more difficult.
Commonsense dictates that if a decision is to be made about a child’s long-term health, it is about either physical or psychological development. Emotional health of a child is as important as physical development. Physical development includes such things as speech therapy, treating serious bodily injury and therapy which would enable a child to enjoy and share in all of the things from which young children benefit. Daily issues such as cuts and bruises and even breakages of limbs of a non-life threatening nature clearly do no normally affect long-term development of a child. This question therefore concerns issues affecting the child’s ability to do what other children would normally be expected to be able to do at his age. The ability of parents to be able to reach agreement about important health issues gives insight into their parenting capacities. Do they have a genuine desire to do what is good for their child or is this some sort of power game? The child has an eye defect which is requiring the parties to patch it and the parties seem to co-operate with that regime.
During the child’s early years, significant medical treatment was required. His attendances on Dr P are another example of his need for help and raise the question of whether the parents can avoid a dispute and genuinely promote his interests. In the case of the treatment by Dr P, that consensus was lacking and the issue became litigation-related.
The husband is very focussed and importantly, gets the task done. In her evidence, the wife sensibly moved from her earlier position about Dr P. That concession was made very late and under the pressure of this hearing. The Dr P issue was not the only argument between the parties about the child’s health. As the final hearing approached, there was a debate about whether or not the child should attend a particular medical clinic. It was only in cross-examination that that issue became irrelevant because the wife said she had thought about matters and that it made sense to do things in the child’s best interests. In relation to the specific medical clinic, she had said she felt uncomfortable going there because of the involvement of that clinic and its doctors in these proceedings. Whilst these concessions were made late, they were sensible. The medical clinic issue was not specifically a long-term medical matter but by highlighting it, the parties exposed the fact that they have no trust in one another and it is unlikely that they will be able to consult and reach agreement. Thus, even a small issue like the medical clinic gives an indication about future problems and the need for the Court to make an order about decision-making responsibilities.
It would concern me if a decision had to be made about medical matters of a long-term nature with the current acrimony. Communication is currently limited to a book and occasional text messages. Face to face conversation is almost non-existent. I find there are likely to be decisions about the child’s future health and they may not be able to be made efficaciously if the parents have to consult even in writing. There has been no decision of which I am aware in which any criticism should be levelled at the husband. The wife has shown that she wants to be involved and has a strong desire to ensure that the child is well looked after. One person should therefore make the decision informing the other parent accordingly. As such, I propose to order that the husband make the decisions but the wife must be informed and be able to contribute to the decision.
The presumption is rebutted because it would not be in the child’s best interests for his parents to have equal shared parental responsibility in respect of medical issues.
The parties have been able to resolve the issues of education and it is a number of years now until the next major decision about high school arises.
Despite the problem of communication, both parties show a desire to be significantly involved in the child’s life. Issues other than health are less critical in time and urgency. Nothing in the evidence about those matters justifies a rebuttal of the presumption in respect of those issues. That however raises the point that there was a final order in 2009 about every long term issue; should that be revisited?
The order in 2009 notes that the parties would review sole parental responsibility in time. The order was made after the wife’s hospitalisation. The indication in the notation would suggest that both parties expected that when she was emotionally well, they would contemplate working together again. That situation never arose because of their relationship. Notwithstanding the final nature of the order in 2009, I propose making a parenting order including an order that the parties have equal shared parental responsibility for all matters other than health. Notwithstanding the exclusion of a parent from a decision-making process, if an order is made that still otherwise gives the parents equal shared parental responsibility, the Court is obliged to consider making orders relating to time between those parents and a child.
Section 65DAA requires the Court must consider equal time but that is unnecessary in this case because the parties have agreed that I should not make such an order. The wife’s position seeks what might be described as for significant and substantial time. The latter is defined to mean days spent with a child other than just leisure time on weekends and holidays. It means time that would allow a parent to be involved in a child’s daily routine and the participation in events of significance to the child (s 65DAA(3)) but it also means involvement of the child in events of significance to the parent.
The respective positions of the parties would allow the wife to have that substantial and significant time whether at four or five days because it is proposed that there be a weeknight involved which would require the wife to organise the child for school. Such an order should only be made if it is in the best interests of the child and reasonably practicable. In this case, the parties say such a general arrangement is both.

The submissions

The Independent Children’s Lawyer

The Independent Children’s Lawyer changed from equal shared parental responsibility to the husband having sole responsibility for decisions about the child’s long-term medical health.
It was submitted that there should be a stepped approach to contact over the ensuing weeks until the conclusion of the first term which would enable the child to settle into the new routine. It was submitted that holidays created a problem for the child because of the splitting of time particularly having regard to his anxiety. However, by April, a week of holidays should not be a problem. It is almost April now. The delay in concluding these reasons has arisen because of the inability of the parents to conclude the financial issues as a result of the wife’s inheritance. Once that material became available, written submission were prepared and filed in early February. Thus, the child has already had an opportunity to settle into a new school and contact regime. There has been no request by any party to relist the hearing to revisit that contact.
The Independent Children’s Lawyer also supported the concept of the handover at school except for holidays and for Dr N to be involved but on a limited basis in writing.
Counsel for the Independent Children’s Lawyer also submitted that each party should be ordered to inform the other about their movements in relation to interstate and overseas travel.
On a controversial note, it was submitted that a copy of the orders should be provided to Families SA. That was objected to by both parties because of the lack of involvement by the Department. I agree with the husband and wife. It may be stirring a nest that does not need to be stirred.

The Independent Children’s Lawyer also strongly supported the continuation of a communication book.

The wife’s position

Counsel for the wife submitted that there was no basis to remove the equal shared parental responsibility by the rebuttal of the presumption but if I was against him in relation to that, he sought that his client have as much information and be involved as much as possible. For the outlined reasons, I agree with the latter.
The wife submitted that there should be an immediate move to a contact regime for the wife’s involvement in the child’s school life. It was submitted that it was important to commence on a Thursday night rather than the Friday night so that the wife could be very much involved in the activities at school. Whilst I accept that there should be a night in the alternate week to the weekend, I think too many changes and too long a gap away from the husband is not what the evidence supports.
Counsel for the wife submitted that there was no diagnosis by Dr P other than one of general anxiety and that everything pointed to the fact that the child was “going along alright”. Thus, it was submitted, absent anything standing out, Dr P’s involvement should end now. For the reasons outlined above, I reject that.
In relation to Dr N, counsel submitted that it was very important for the health of the wife for an ongoing relationship to continue with Dr N and the Court should be loathe to do anything that might prejudice that situation particularly having regard to the evidence of Dr N and his reticence to be involved. He acknowledged however that the wife had conceded that the husband was entitled to have some information. That has been dealt with in my reasons.

The husband’s position

Counsel for the husband submitted that his client should have sole parental responsibility for all issues and without any restrictions. The order had been justified in 2009 and all of the indications were that communications were no better now about decisions for the child. I find that the evidence neither supports such a future arrangement nor that there was an intended permanence about the arrangement in 2009.
As to contact, counsel for the husband pointed to Ms W’s evidence about the problem of co-parenting. He submitted that the wife’s time should be limited to the four nights out of fourteen. He acknowledged there was little difference between four nights and five nights but submitted that the wife would get the same advantage out of four as she could out of five. Five nights was not supported by any expert.
In relation to the handovers, counsel for the husband relied on the evidence of the husband that he wished to monitor the wife’s health and that the best way of doing that was the handover of the child at the wife’s home. Again, for the reasons outlined above, that is not an option I consider necessary or open on the evidence.
The husband did not want the indefinite continuation of the child with Dr P but he expected it would not proceed beyond 12 months in any event.

Section 60CC

Section 60CC guides the Court about assessing the child’s best interests. I make the following findings:
·There is a good relationship between the child and each parent. He benefits from that. The evidence suggests that his relationship with both is meaningful to him already. Nothing I do will change that;
·There are no harm issues here for the child other than his anxiety and that can be controlled by clear orders;
·There are no particular views of the child that I should take into account other than he clearly wants to be with both parents. He clearly enjoys the time with his mother and although it is still early and he has hurdles to jump in relation to a new school year, there can be no doubt that his anxiety as described by Dr P is still present. Having regard to his age and state of maturity, it would not be appropriate to place any weight on what his views are;
·There is a good relationship now between the child and both parents. He has a good relationship with his maternal grandmother and also with the wife’s partner Mr F and his children;
·When the child is in the care of either parent, it is clear that he is close to each; there is a stable routine recommended by Dr P and Ms W. The child can be away from his mother for longer periods than he can be from his father but in respect of the former, if he is overseas as anticipated, there needs to be Skype communication. The child needs to be well-prepared for those events; the capacity of each of the parents to provide for the child both physically and emotionally has been sorely tested in this trial. I find the husband has provided appropriately for the child and that since the wife’s illness, she has not been able to do those same things;
·Each parent has adopted a strategic and litigious approach to their attitude to parenting. That can be seen in the wife’s attitude about attending Dr P and the husband’s insistence upon observing the wife at handover. Neither approach was child focused;
·There are no family violence issues here notwithstanding some of the complaints made by each party. It was common ground that family violence was not a matter that should affect my determination;
·In this unusual case, I have had the benefit of the expertise of Ms W and Dr P about how the child is coping. The child needs stability. Although his anxiety may be ameliorated, there is now a stable environment that ought not be substantially altered into the foreseeable future. It is therefore sensible to make permanent orders rather than a trial arrangement which might mean further litigation; and
·I am also required to consider the involvement of each of the parents in the child’s life as far as cooperating in the other parent’s time with the child and also facilitating in it. For the reasons earlier outlined, although each accuses the other of being difficult, I consider their actions explainable.

What orders should be made?

I have dealt with parental responsibility.
The child will live with the husband in the future. That was not in dispute.
In relation to the time that the child should spend with his mother, I do propose to take a cautious approach. I shall limit the duration until the end of Term 1 which is only weeks away. I propose that there be time in each week so that the child will see his mother consistently. Once Term 2 commences, the time should be extended in one step. I do not propose to make an order that the time commence on the Thursday but rather the Friday.
There are ample school activities that the wife can be involved in as a parent. The husband had no objections to her attending the school to assist although he was reticent about her spending time outside of the orders. In my view, that is a matter for the school. If a school considers that it can benefit from the wife assisting in a reading program, chaperoning children at social or cultural events or being present at a sporting event, the wife should be allowed to be involved. I make it clear however that that is a matter for the school principal and the husband should not dictate that issue based upon it being determined by the contact orders that I make.
In relation to term holidays, it is too early for the child to have a block period with the wife. I propose to order time which will probably inconvenience the parties because they may not be able to go away for as long as they may like during school holidays. They are always at liberty to extend and vary those times by agreement if they consider that the child can cope with the extended time.
I shall also make orders in relation to the long term summer holidays permitting the husband to travel overseas for the four week period which Ms W thought the child could cope with but only on the basis that there is a Skype communication at least on a weekly basis.
I do not propose that the husband have unfettered access to Dr N. I respect Dr N’s requirement of privacy protection of his patient but also I do not want to see the relationship she has with Dr N prejudiced. I found Dr N a helpful as well as thoughtful witness and as no-one challenged his expertise, the husband must accept that Dr N knows what he is doing. I propose to make the opportunity available to the husband to have a written response to avoid confusion. The husband will no doubt have to pay any costs associated with that.
Changeovers have been a source of contention. The child currently needs to see as little of his parents together in circumstances where he might get the impression that they do not like one another. Each of the parents complained about statements that the other had made and requested that I draw inferences from things that the child had said to them about language in the other’s household. I have made no findings in respect of that but it is a clear warning that each needs to be careful about what they say about the other parent in the presence of the child.
In my view, those orders are in the child’s best interests.

Property

Despite the modesty of the assets of the parties and the surrounding evidence about other contentious financial issues, the parties only have a limited equity in the former jointly owned home. The husband wants to keep it. There are minimal chattels and minimal superannuation but agreement could not be reached.
Neither party will see the fruits of their labour because those proceeds will go to fund their legal expenses at least in part. Each has substantial legal fees outstanding and some other debts. I take those matters into account in determining what is just and equitable.
In the husband’s case, the wife’s mother has lent him a substantial sum of money to fund this case. The wife too borrowed funds from her maternal grandfather who was to have been a witness in the proceedings but died shortly prior to Christmas 2012. At the time of the hearing, the wife’s entitlement to her grandfather’s estate was not known; it is now.
The inheritance has been clarified. The wife’s grandfather died in December 2012. The wife is entitled to 16.7% of the estate which the parties agreed had a value to the wife of about $46,600. Against that, she owed her grandfather $30,000 and that has to be repaid; her entitlement is therefore modest.
The husband and the wife filed their affidavits setting out extensive complaints about what assets were missing and what each had done to various assets. It was clear that when the affidavits were drawn, there was little consensus about the assets for division. Ultimately, that evidence was acknowledged by both counsel as being of little assistance other than as general background. Neither party was in a position to prove the assertions about missing assets. Even if the allegations were true, in this case they would not have made much difference.
The husband and the wife are the registered proprietors of the home at Suburb Y as joint tenants. The agreed value was $315,000. That property is encumbered by a bank mortgage to the extent of just over $165,000. The equity that the parties therefore have is about $150,000.
The parties agreed that they had each retained furniture and effects and even agreed on their values. The husband had $6000 worth and the wife $2000 worth. The parties asked the Court to leave the assets where they were provided there was an adjustment of cash along with an alteration of the wife’s joint interest in the home.
When the parties separated, the husband was driving a vehicle which had been acquired with finance and he made the regular monthly payments until it became unencumbered. The wife also had a motor vehicle. The parties agreed on the value of those cars at $12,500 in the case of the husband and $9000 in the case of the wife.
There were also some savings that each acknowledged having had at the time of separation but those were so small that having regard to the size of the liabilities each has for legal fees, they do not bear consideration. Indeed, they have long gone. I do not propose to notionally add those into some notional “pool”.
Each party also has significant liabilities either for their respective legal fees or, in the case of the wife, her debt for the HELP obligation arising out of her tertiary education. That debt is an unusual one because it arises from a tax on her tertiary education assuming that she, as the recipient of it, will pay back the Australian community by her earnings in the future. She will therefore make the contribution by way of a tax. During the period of time that she was a student, the husband supported her. It would be unfair to make the husband make a further contribution towards that tax now. Further, the wife will have many years ahead to obtain the benefit of her education and hence it is my view, that the wife should be responsible for the debt. It is just and equitable that she should be so responsible.
Neither party compromised the proceedings and that required court intervention to move the supervised parenting arrangements along. Even on the husband’s evidence, that was successful. The wife’s stance about parenting orders did not give sufficient weight to the fact that the child was exhibiting anxiety. All of those factors contributed to the parties’ litigation costs. Despite the minimal financial circumstances of each, I do not consider in the circumstances just outlined that it is just, to weigh into the assessment of what adjustment should be made that each has significant costs to pay.
In addition to the assets just mentioned, each party has some superannuation. The husband has just over $1000 and the wife almost $10,000. Much depends upon what the parties do with that between now and retirement. Neither party sought a splitting order. Indeed, in his final written submission, counsel for the wife described the superannuation interests as “not relevant”. Rather than say that, I am prepared to indicate that I find them minimal.
Superannuation is another “species” of property (see Coghlan [2005] FamCA 429). There is no doubt each party worked when they could during the relationship. In the husband’s case, as a self-employed person, superannuation was presumably the least important thing for him whilst getting the partnership business going and whilst he was supporting the family. The wife’s superannuation arose by virtue of her employment. It was attributable in part to the fact that she had a qualification. She also already had some minimal superannuation when she met the husband. Although it is minimal in impact and effect, I find that the husband gave up the concept of putting superannuation aside because of the financial needs of the family. The wife worked in an environment where superannuation was compulsorily deducted from her earnings. To that extent, each party was foregoing something to allow the other to gain a benefit. In equitable terms, each has an interest in the accrued superannuation of the other.
However, because of the amounts involved and the duration of time until each party’s retirement, it would not be appropriate to simply treat those as cash. Indeed, they are a very different species of assets.
In the final written submissions of counsel there were differing views as to what assets and liabilities the parties had. It was the husband’s position that excluding the wife’s inheritance, the “net asset position” was $135,869. It was submitted that if only the equity in the home was taken into account, the value was $149,827. Those figures can be seen from the aide memoir provided by the husband. The wife’s counsel submitted that the total value of the assets was $344,500 against which there was the home mortgage of $165,173. In the wife’s submission therefore, what was described as the “net” relevant asset pool was $179,327. I find that the assets of the parties or either of them and in which they have a legal or equitable interest are therefore:
(a)their joint equity in the former matrimonial home $150,000;
(b)the husband’s chattels $6000;
(c)the wife’s chattels $2000;
(d)the husband’s car $12,500;
(e)the wife’s car $9000; and
(f)the wife’s inheritance.
In addition, there is the superannuation just mentioned.
I turn then to the approach to be taken bearing in mind that each party sought not just an alteration of interests but a division of a “net pool” on a percentage basis.
In Stanford v Stanford (2012) FLC 93-518 [2012] HCA 52, the High Court of Australia examined the operation of s 79 of the Act. Although that decision was handed down in November 2012, it was not raised by either party despite their written submissions being drawn in February 2013. Because of the limited resources of the parties and the way I intend to approach the matter, I do not consider it necessary or appropriate to request further submissions on the point.
The plurality (French CJ, Hayne, Kiefel and Bell JJ) in Stanford observed that it is necessary to consider whether it is just and equitable to make a property order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in what property they have. I have done that above.
Their Honours observed that s 79 is a broad power but not one that is to be exercised by “unguided judicial discretion”. Indeed, the power rests upon the law not discretion. The plurality observed:
The question presented by s 79 is whether those rights and interests (in the parties’ properties) should be altered.
Importantly, the plurality went on to say that whether or not to make an order is not to be answered by beginning with an assumption that a party has a right to have property divided or a right to an interest in “marital property” which is fixed by reference to s 79(4). Their Honours said:
To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Thus, there must be a reason based upon the principles in the Act to interfere with the legal and equitable interests and to use the words of the plurality, “and whatever may have been (the parties’) stated or unstated assumptions and agreements about property interests during the continuance of the marriage.”
In many marriages such as this one, the process discussed by the High Court will be simple because of the recognition of joint interests either by registration or by common usage. Indeed, as I have pointed out, the parties sought an adjustment of their interests (despite the absence of agreement as to its extent) and by inference, they acknowledged that leaving the other party with those interests was not just and equitable.
The parties’ separation ended the joint use of their property. Until then, they jointly enjoyed that property. For example, items of property such as motor cars which are generally registered in one person’s name (and that occurred here) often are driven or enjoyed (as to use) by other family members. Motor cars are often referred to in these types of cases as “husband’s car” or “wife’s car” but an examination of ownership often shows the car was bought out of common funds or pooled resources and was used for joint purposes. Indeed, household funds pay various taxes, fees and maintenance costs for each other’s cars. It is conceivable that arguments could be raised about equitable ownership of those items but that did not occur here. That will often be unnecessary if both parties agree that they had an interest. The same logic may be applied to chattels and indeed, to most property. Here, the parties agree their assets were jointly owned.
As the High Court pointed out, in most cases, there will be no problems about interests and in equitable terms, it is not so much the problem of ownership but the inability of the parties after separation to enjoy a common usage that requires the Court to step in and make an adjustment where the property will no longer be common to both. That is the case here.

Once a decision is made to adjust property interests, the nature, structure and extent of the order is determined by an application of the principles in s 79. I turn then to those provisions.
When the relationship began, the husband said he brought in between £15,000 and £16,000 in savings and some chattels. The wife simply said the husband had $28,900 but did not explain how she determined that sum. The husband produced his bank statement.
Importantly, the husband’s savings went towards the deposit on the former matrimonial home with the balance otherwise being borrowed and secured by way of a mortgage to the Bank SA. The wife described the savings contributed to the deposit as joint savings but no other explanation was given about what happened to the husband’s savings from four years before. The husband earned more than the wife and she had no savings at the start of the relationship. I cannot and should not, ignore the husband’s initial contribution.
Between 2000 and 2004, both worked in paid employment and contributed to those savings. I find there was some benefit to the parties in the husband having saved what he did and therefore the contribution towards the deposit on a home was of significance. The only way they could have bought the house was by borrowing money to which both have contributed. Subsequent to the borrowing of the funds, the husband has been the major financial provider but he has had also had the benefit of the wife’s homemaker and parent role and the money she earned along the way. Importantly, he did not dispute her legal ownership which both parties had created regardless of their contributions.
According to the wife’s evidence, when the relationship began, she had a motor vehicle and $5000. The husband disagreed and described her assets simply as chattels. Absent evidence to establish what the wife was alleging, I find the only reliable evidence is that of the husband as to his savings.
Throughout the period that the parties were together, the husband worked as a tradesman either in the capacity as an employee or as a self-employed business owner. In the latter, the activity was conducted through a partnership with the wife and later, a corporate entity as trustee of a family trust. No doubt both parties enjoyed the benefit of those entities. The commitment by the wife to those commercial structures is a contribution by her.
The husband worked long hours and for some years, the wife studied. When the child was born, the wife took on the major homemaker and parent role because of the husband’s long hours.
Subsequent to the separation, both parties initially had the care of the child but in recent times, that has fallen to the husband. During that same period of time in addition to caring for the child, the husband has paid off “his” vehicle. He however also retained the use of that vehicle and also the business entity to the exclusion of the wife. He has had the benefit of the home whilst at the same time, paying the mortgage commitment. The wife has been excluded from those benefits. Those are matters which are capable of being taken into account in determining an equitable adjustment.

Written submissions ABOUT PROPERTY

Both counsel provided written submissions in early February as a consequence of resolving the issue of the wife’s inheritance. It was submitted on behalf of the husband that with the inheritance, albeit small, the wife’s legal costs were now significantly reduced.
It was submitted on behalf of the husband that in relation to contributions, there was a clear initiating contribution made by the husband that was greater than that of the wife along with his greater post-separation contributions. It was submitted that that justified an adjustment of 15 per cent or more (presumably beyond the 50 per cent equality of contribution). When the s 75(2) factors were considered, the Court was urged to take into account that the husband had the care of the child, the husband was older than the wife, the wife was not paying child support, the wife had the capacity for full-time employment and was in a household with two income earners. Counsel submitted that the husband had a “mountain of debt” compared with the wife.
A significant amount of time was spent in respect of the comparative debt positions. As I have already remarked, the parties chose to litigate and I see no reason to do more than acknowledge the indebtedness and to again note that it is obvious that neither party will have any money arising out of any settlement of this case. As counsel for the husband aptly put it:
It is submitted that, on any view, it will take the husband probably the rest of his working life to repay borrowings made to fund (the wife’s mother’s debt), (the house mortgage) and the amount required to pay the wife (if any).
It was on the basis of those matters that counsel for the husband urged that there be no payment to the wife whilst at the same time requiring her to transfer her interest in the home

The submission of the wife

Counsel for the wife submitted that the wife should be given $78,000. He said that this was following the “four-step process of reasoning”. Having regard to my reference in these reasons to the High Court’s decision in Stanford, I doubt very much whether the so-called four-step process is of assistance.
It was submitted that the wife should have an equal division of the pool of assets. In my view that would not be a just and equitable outcome for the reasons I have already set out.
The wife submitted that the parties’ contributions were “relatively equal” at the commencement of the relationship and thereafter, there was no difference. For the reasons outlined, I do not agree.
Critical to the wife’s position was the submission that the s 75(2) factors balance each other out including that the husband had the business. Be that as it may, the case was conducted on the basis that there was no value in the husband’s business and that in reality, he was earning a living from the structure that he and the parties had managed to put in place. As there was presumably no future maintainable earnings base to categorise its value, I conclude that the husband simply earns a living from working for himself. His financial position was not challenged.
The submission of counsel for the wife was that when all of those factors were weighed up, there should be an equal division of the assets. I disagree.
In the final written submissions received on 11 February 2013, an order was sought by the wife that the husband provide her with a variety of chattels including photographs, scrapbook, mountain bike, her “personal [game collection]”, indoor carpet bowl set gifted by her grandfather and her diving equipment. These issues were not raised in the dispute but they appear to be personal property belonging to the wife. If they are still in the possession of the husband, they should be returned to her. I note that none of the items was included in the list of assets as having value.
Section 79 provides that once the Court determines that an order should be made, it must consider what it should be. Thus, the order to be made must be just and equitable.
In determining what order is to be made, the court must take into account the matters set out in s 79(4). For the reasons above, I find the following:
·the financial contribution by the husband to the acquisition, conservation or improvement of all of the property of the parties was greater than that of the wife;
·the contributions of the parties other than the financial contribution to that same property has been indistinguishably equal;
·the wife by her homemaker and parent role made a greater contribution than did the husband towards the welfare of the family up until separation. The separation brought about the end of the family as such but thereafter and until now, the husband’s contribution has been greater than that of the wife because he has had such a significant role in the care of the child;
·Neither party’s earning capacity will be affected by the orders I propose because no income-generating asset of value is being altered such as to affect the parties’ income;
·In relation to s 79(4)(e) and by reference, s 75(2), so far as they are relevant:
(i)Both parties are young enough to have a large number of years in the workforce before retirement;
(ii)each has appropriate qualifications and an earning capacity to improve their financial position. I accept that the husband is not a large income earner and his obligations to pay his legal costs as well as support himself and the child, means that he will not be financially comfortable in the foreseeable future;
(iii)There is a clear income disparity between husband and wife at the moment but that is something that could be adjusted by choice at least by the wife;
(iv)The wife has a benefit of a partner upon whom she is financially dependent but she also acknowledged that she has chosen the lifestyle that she is currently enjoying which enables her to have a significant role in the care of the partner’s children. Whilst that is commendable, it should not be an issue in her favour in circumstances where the husband is largely if not entirely responsible for the care and financial support of the child.
·In her evidence, the wife complained about the fact that she currently has a debt to the Child Support Agency and she is not able to make any contribution to it. That too is a lifestyle choice by her. All of the evidence of the wife indicated that there is little prospect that she will make a contribution towards the support of the child in the foreseeable future.
The s 79(4)(e) factors largely look at the economic issues relevant to the future of each party. In my view, the husband is economically worse off than the wife.
The assessment of these various contributions including those of homemaker and parent can be undertaken on either an asset by asset basis or globally. Here, the modest number and type of assets along with the significant homemaker and parent role of both parties makes a global assessment, albeit not necessarily using percentages, fairer. In Mallet v Mallet (1984) 156 CLR 605, the High Court made clear that the court is not bound by strict formulae in making this assessment of the parties’ contributions. It was said that s 79 confers a wide, although not unfettered, discretion in that assessment (see Wilson J at 636).
The parties conducted the proceedings on the basis that each had chattels which were identified as having a lump sum value. Each sought not so much that the chattels be divided but that there be adjustment for the disparity between the values. These items include motor cars and furnishings. They were presumably acquired during the relationship and used for the benefit of the family and in the case of the future, will be used by the child. There is no distinction between their contributions in relation to those items. In my view it would not be a just and equitable outcome to simply add these items into a “pool” and somehow divide them on a value basis. The appropriate course of action is to leave them where they lie and not to make any further adjustment.
The only contribution features of this case that are unusual are the initial contributions of the savings of the husband and his post-separation contribution in the care of the child. They deserve recognition having regard to the assets of the parties.
I find that the husband contributed more than the wife. To the extent that such a finding needs to be measured in money or in a percentage way, I assess it as 55 per cent by the husband and 45 per cent to the wife in relation to the home but I would otherwise assess it equally in relation to the other assets.
I do not know what the contribution arrangements were in respect of the superannuation subsequent to the breakdown of the relationship but in any event, that has indirectly arisen as a result of the wife’s employment which in turn has been due to her tertiary education which arose from the husband supporting her.
An adjustment should be made in the husband’s favour having regard to his need to provide for the child without the likelihood of much future support from the wife. In my view that adjustment should be 15 per cent of the value of the home but not any further adjustment in relation to the other assets of the parties.
In my view, the only appropriate order for me to make is that the value of the equity in the home be adjusted as to 70 per cent to the husband and 30 per cent to the wife and that the assets otherwise remain where they stand. As the equity in the home is $150,000, the husband should pay the wife $45,000.
It is clear on the evidence that the wife will not benefit from any of that money having regard to her legal costs and as such, I see no reason why the husband should pay the sum quickly. I propose to allow him some months for that to occur.
An adjustment such as that will leave the wife with a modest sum of money towards her legal fees, some chattels and a motor car along with a superannuation entitlement that will grow for longer years than the husband has the opportunity to gain. The husband has the house but he has a significant debt and very little equity in the property. He too has a vehicle, the corporate facility and some chattels. The husband has the debt due to his mother-in-law and there is no indication that she requires an immediate repayment.
Although the business of the parties was not valued for the purposes of any dispute, it became apparent in the final submissions of counsel for the wife that the parties were the office holders and shareholders of a corporate entity which conducted the business. In addition, although not generally referred to in the proceedings such as to affect the outcome, the parties had the benefit of a family trust. It was common ground between the parties that the husband would retain both of those entities and although it is not a division of property as such other than as to the shareholdings, to enable a clean break between the parties, I propose to make orders that the husband retain the benefit of those entities and the wife sign any necessary document at the expense of the husband, accordingly.

I certify that the preceding One Hundred and Ninety Five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 February 2013.

Associate:

Date: 28 February 2013

[2013] FamCA 120

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