Geary and Groves

FAMILY COURT OF AUSTRALIA

GEARY & GROVES

[2010] FamCA 1024

FAMILY LAW – CHILDREN – Best interests – mother to have sole parental responsibility – children to live with mother – children to spend supervised and conditional time with father – mental health issues in relation to father
FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

In the marriage of Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
In the marriage of McLay and McLay (1996) FLC 92-667

APPLICANT:

Mr Geary

RESPONDENT:

Ms Groves

FILE NUMBER:

PAC

5828

2007

DATE DELIVERED:

15 October 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

7, 10, 11, 12, 31 May 2010, 2 June 2010, 15 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Geary in person

COUNSEL FOR THE RESPONDENT:	Mr Kearney
SOLICITOR FOR THE RESPONDENT:	Ms More

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

Mr Duncombe

Orders

Parenting Orders

All prior orders relating to the children, S born … August 1995 and C born … October 1998 (“S” and “C”) are hereby discharged.
The mother is to have sole parental responsibility for the children, S and C.
The children are to live with the mother.
Upon the father complying with Order 5 herein, he shall spend time with the children, supervised by Ms D, as follows;
(a)Such time as is agreed between S and the father and communicated to the mother by the father;
(b)The Father spend time with C;
(i)each alternate Sunday during school term from 9.00am to 4.00pm;
(ii)Other times as agreed between the Mother and the Father.
Subject to Order 6 herein, the father’s time with the children shall commence upon the father doing all of the following:
(a)The father is to attend upon a psychiatrist of his choice for the purpose of diagnosis and treatment of his mental health condition;
(b)The father is to advise the mother and the Independent Children’s Lawyer, in writing, of the name, address and telephone number of the psychiatrist he has seen for the purposes of Order 5(a) herein;
(c)The Father is to undertake treatment, as directed by the psychiatrist referred to in Order 5(a) herein, for a period of not less than 3 consecutive months at intervals recommended by the psychiatrist; and
(d)After a period of 3 consecutive months of treatment the father do all things necessary to obtain a letter from his psychiatrist addressed to the Independent Children's Lawyer which specifies;
(i)the diagnosis of the father’s mental health, the treatment recommended, an assessment of the father’s compliance with the treatment recommended by the psychiatrist and the recommendations for the future treatment of the father;
(ii)Forward a copy of the letter from the psychiatrist referred to above to the mother and to the Independent Children’s Lawyer.
Within 14 days of the receipt by the mother of the letter referred to in Order 5(d)(i) herein, the mother shall communicate in writing with the father nominating the date and time upon which his time with the children shall commence, such date to be not more than 21 days after the receipt by the mother of the letter referred to in Order 5(d)(i) herein.
The mother is to encourage S to spend time with his father at the same time as C spends time with the father.
The mother may give notice to the father on not more than one occasion each month that the Sunday time is suspended. In such circumstances the mother and father are to negotiate to try and agree on a make up time for the father and the children.
In the event of the children being absent from their mother’s home during school holidays, including on an overseas holiday with the mother, then the mother is to notify the father and the Sunday time shall be suspended. In such circumstances the mother and father are to negotiate to try and agree on a make up time for the father and the children.
Prior to the first period of supervised time taking place the Independent Children's Lawyer is to obtain from Ms D a signed acknowledgement of the responsibilities of being a supervisor to these children’s time with their father and also acceptance of that role. The Independent Children's Lawyer is to compose the document for signature by Ms D. Should there be some aspect of the document which Ms D is required to sign which presents a difficulty for her then the father may relist the matter for consideration of the terms of the document required to be signed.
All time the father spends with the children is to commence and conclude with the father collecting the children from the mother’s residence and then returning them to the mother’s residence unless the parties agree otherwise from time to time.
The father’s time with the children, S and C, shall be suspended upon the father failing to comply with treatment as directed by the father’s treating psychiatrist.
It is a condition of the father spending time with the children that:
(a)He keep the mother advised of the name and contact details of the psychiatrist he is attending;
(b)Provide to any psychiatrist attended by him a written authority to permit the psychiatrist to speak with the mother and/or the Independent Children's Lawyer for the purposes of them ascertaining the father’s compliance with the prescribed treatment regime.
The father may communicate with the children S and C, irrespective of whether he is spending time with them as otherwise provided for in these orders;
(a)By way of cards and letters;
(b)By telephone each Wednesday between 8.00pm and 8.30pm with the father to initiate the telephone call.
The father and the Independent Children’s Lawyer are granted leave to provide to a copy of Dr Q’s report of 19 March 2009, a copy of the orders made herein and a copy of the written reasons for judgement, to the psychiatrist referred to in Order 5 herein.
The appointment of the Independent Children’s Lawyer in these proceedings continues for a period of 12 months after the date of the making of these orders.
For a period of 12 months from the date of the making of these orders the parties and the Independent Children’s Lawyer have leave to restore this matter to the Court list for the purposes of the implementation of these orders.
The Court Notes that the father’s partner, Ms D, has given evidence in these proceedings and has agreed to supervise time between S and C, and the father.
The Independent Children's Lawyer is to explain the orders to the children and provide them with a child appropriate explanation of the reasons given by the court.
The mother is permitted to remove the children S (a male) born … August 1995 and C (a female) born … October 1998 from Australia from time to time for the purpose of holidaying overseas. On any such occasion when the mother wishes to so remove the children she is to give the father one months prior written notice (e-mail is sufficient) of the dates of departure and return, the countries and towns in which they will be spending time and a contact number or numbers where the children might be contacted during the holiday. Whilst away the mother is to arrange for the children to telephone the father on not less than one occasion each week.
In the event of the children having to renew or obtain passports, the mother is to prepare the necessary documentation and provide same to the father for his signature. The father is to sign such passport applications and forthwith return same to the mother. Should the mother experience any difficulty in obtaining the father’s signature she has leave to relist the matter.

Property Orders

Whenever a splittable payment is payable in respect of the superannuation interest of the wife in the Colonial First State Superannuation Fund:
(i)The husband is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $35,713 at the operative time being the date 21 days from the date of these orders; and
(ii) there is a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for this order.
The above order binds the trustee or trustees from time to time of the superannuation fund.
The father is to forthwith notify the Trustee of the First State Superannuation Fund of the intention of the court to make the splitting order set out herein. Such notification is to be made by the father serving the trustee with a sealed copy of this proposed order. The document so served is to have orders 22 and 23 highlighted for the attention of the trustee. Should the trustee of the fund have any objection to the court making the foreshadowed splitting order then the trustee is to notify the parties in writing and make an application to the court. Should the trustee not object to the making of the proposed splitting order the trustee is requested to notify the parties in writing.
The operation of the orders numbered 22 and 23 herein is suspended until the expiration of 14 days after the husband complying with order 24 hereof.
The parties are to do all things necessary to cause the funds held in the controlled monies account to be paid as follows. 78.35% to the wife and 21.65% to the husband.
The husband is to make available to the wife, within 14 days from the date hereof, photographs of the children for copying. The wife is to return the photographs within 7 days.
The husband is to deliver to the wife within 14 days the pendant given to her by her mother should the pendant be in his possession or control.
Each party is to otherwise retain any asset which stands in their sole name.
Each party is to be responsible for payment of any liability standing in their name.
Subject to the splitting order each party is to retain the balance of any superannuation standing in their own name.
The court notes that order 4 made 12 June 2009 has never been performed. To effect certainty, the order made by the court on 12 June 2009 providing for a payment to father of $6,500 from the parties joint funds, held in the controlled monies account, is discharged.
Should either party seek to make a costs application arising out of the determination made by these orders then such application is to be filed, together with any evidence and/or submission in support, and served within 14 days of the publication of the reasons for judgment. Each party against whom any such cost order is sought is to respond by filing and serving submissions in response within 14 days of the receipt of the application for costs.
Pursuant to s65DA(2) and s62B, 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
All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5828 of 2007

MR GEARY

Applicant

And

MS GROVES

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

This case is, in many ways, a very sad one. The father has been diagnosed with a serious mental illness. He has represented himself in these proceedings as best he can. In many respects, he has done a good job in that pursuit.
The two children of the marriage are S, aged 15 years and C, aged 11 years. Post separation, they have lived with the mother and, until this hearing, they have spent time with the father.
In the course of cross-examination, the father conceded that the children are not at risk of harm in the mother’s care.
The father has also conceded that S has now reached an age at which he should have some voice in the making of arrangements for his care and the time he spends with each parent.
The issue of the father’s mental health was addressed by the Court appointed single expert, Dr Q. She diagnosed the father as suffering from either delusional disorder or schizophrenic disorder of paranoid type. She was more confident with the diagnosis of delusional disorder than that of schizophrenia. She was satisfied that the father has at least some of the symptoms of schizophrenia as listed in the Diagnostic and Statistical Manual of Mental Disorders, 4^th ed, American Psychiatric Association, Washington, 2000 (“DSM-IV”).
In the lead up to the trial, the Court encouraged the father to obtain his own medical evidence as to his mental health if he wished to challenge Dr Q’s diagnosis of him. He failed to do so. He therefore started the hearing with the extreme difficulty of having to achieve some concession from Dr Q.
The mother has an admitted gambling problem. She has been attending Gamblers Anonymous meetings. She appears to succumb to the temptation at times of significant stress. Her gambling appears to be confined to poker machine playing.
In relation to the property issues to be determined in this case, the father has alleged that the mother lost $106 000 through gambling, including S’s education fund of $18 408.43.
The father admitted that some of the allegations that he made would be seen objectively as fantastic and/or extraordinary. The father intimated that it was understandable that there might be scepticism about the allegations that he made.
If the diagnosis of Dr Q is accepted by the Court, the father is prepared to engage in appropriate therapy as a condition of spending time with the children.

The Orders Sought

The father sought the following orders:
(1) That the Father and Mother (“the Parents”) have joint parental responsibility for [C] (b.[…]/10/98) and [S] (b.[…]/8/1995), (“the Children”).
(2) That the children are to reside with the Mother.
(3)That the Father is to spend time with the children by way of Phase 1, Phase 2, and Phase 3 of these Orders as follows:
Phase 1
(a) The children spend time with the Father every alternate weekend.
(b) That pursuant to (a) above, the children spend time with the Father from 6.00pm on the Saturday to 5.00pm on the Sunday.
(c) That pursuant to (b) above, the Father is to collect the
children from the Mother’s residence and return them on the Sunday.
(d)That in relation to (a), (b), and (c) above, Ms [D] be present at all times to supervise when the children are with the Father.
(e)      That (a), (b), (c), and (d) above be conditional on the
          following:
(i) That the Father consults a registered health care provider (having a Medicare provider number) for the purposes of psychiatric treatment for a period of 3 Months.
(ii) That, in relation to (i) above, the Father provide copies of all such medical bills that he may incur from the date of these Orders to the ICL.
(f)       That the Father be at liberty to communicate with the
          children by telephone.
Phase 2
(a)      That the children spend time with the Father every          alternate weekend.
(b)     That pursuant to (a) above, the children spend time with
          the Father from 10.00am pm on the Saturday to 5.00pm on
          the Sunday.
(c)That pursuant to (b) above, the Father is to collect the children from the Mother’s residence, or closest bus stop,
on the Saturday and the Mother is to collect the children from […] railway on the Sunday.
(d)That in relation to (a), (b), and (c) above, Ms [D] is to be present at night to supervise when the children are with the Father.
(e) That (a), (b), (c), and (d) above be conditional on the following:
(i) That the Father consults a registered health care provider (having a Medicare provider number) for the purposes of psychiatric treatment for a further period of 3 Months from the date of these Orders.
(ii) That, in relation to (i) above, the Father provide copies of all such medical bills that he may incur from the date of these Orders to the ICL.
(f)       That the Father be at liberty to communicate with the
  children by telephone.
Phase 3
(a)      That the children spend time with the Father unsupervised
  every alternate weekend from after school on Fridays until
  before school on Mondays.
(b)      Half of school holidays.
(c)      Special days as agreed, or if no agreement, then by order
  of the Court.
(d)      That the Father be at liberty to communicate with the
  children by telephone.
(4)       That in relation to Order 3 above, the ICL be retained for a period of 6 months from the date of these Orders.
(5) That in relation to Order 3 above the ICL be liberty to file any contravention application.
(6) That each alternating year, the Mother be permitted to remove the children from the Commonwealth of Australia for a period of four weeks each year provided the following:
6.1The Mother provides the Father with four weeks written notice of her intention to travel overseas with the children.
6.2Two weeks prior to the intended departure the Mother provide the Father with a detailed itinerary including contact numbers for the children whilst overseas.
6.3The Mother encourage and facilitate the children to speak with the Father at least once per week during the time they are overseas.
6.4 That the Father’s time with the children be suspended whilst the children are outside the Commonwealth of Australia in accordance with x above.
(7)That each other alternating year, the father be permitted to remove the children from the Commonwealth of Australia for a period of four weeks each year provided the following:
7.1The father provides the mother with four weeks written notice of his intention to travel overseas with the children.
7.2Two weeks prior to the intended departure the father provide the mother with a detailed itinerary including contact numbers for the children whilst overseas.
7.3The father encourage and facilitate the children to speak with the mother at least once per week during the time they are overseas.
7.4 That the mother’s time with the children be suspended whilst the children are outside the Commonwealth of Australia in accordance with x above.
(8)The Mother and Father do all acts and things and execute all documents, instruments and writings necessary to ensure the children are able to leave the Commonwealth of Australia including executing any Passport Applications and executing any Visa Applications.
PROPERTY
(9)That within 14 days each the Father and Mother shall do all acts and things necessary to cause Newnhams Solicitors to pay the funds held in the controlled monies account on behalf of the parties as follows:
9.155 % to the Father.
9.245 % to the Mother.
(10)That Order 5 paragraphs 3, 4 and 5 of the Orders of 12 June 2009 be and are hereby discharged and it is noted that the agreement, subject of notation 4 of the same day is similarly discharged.
(11) That within 7 days the father provide to the mother the gold pendant given to her by her mother which is in the father’s possession.
(12) That the mother’s overall superannuation entitlement be split 52 % favour of the father.
(13) That the father retain his current superannuation entitlement held in his name.
(14) That, forthwith, the mother indemnify and keep indemnified the father in respect of all liability arising in connection with:
14.1. The former matrimonial home situate [at A] NSW.
14.2.The former investment property situate [at] New Zealand
14.3.Any gambling losses.
14.4.Any loans taken out in the mother’s name.
(15)That the Mother and the Father’s each pay their own respective costs of and incidental to these proceedings.

The orders sought by the mother are summarised later in these reasons.
The orders sought by the Independent Children’s Lawyer are also summarised later in these reasons.

Background Facts

Where in this judgment I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1963, the mother was born. She is currently 47 years of age.
In 1968, the father was born. He is currently 42 years of age.
In April 1989, the mother immigrated to Australia.
The father asserts that, in 1991, the parties commenced a relationship with each other.
The father asserts that, in 1992, he was drugged and sexually assaulted by a flatmate. The father pleaded guilty when charged with aggravated assault of the flatmate.
In January 1995, the parties commenced cohabitation.
As will be seen later in these reasons, I have found that the parties were not cohabiting between August 1995 and August 1997.
In August 1995, S was born. He is currently 15 years of age.
The mother asserts that, in August 1995, the father was issued with a Child Support Agency (“CSA”) Assessment and that he refused to pay any child support.
In July 1997, the parties married.
In August 1997, the parties resumed cohabitation. At that time, the father was undertaking university studies and the mother was in full-time employment.
In October 1998, C was born. She is currently 11 years of age.
In 2000, the mother lent her brother $2000. This debt has not been repaid.
In 2002, the mother was retrenched from her employment with N Company.
The mother asserts that, in 2003, the father did not allow her to take the children to visit the paternal family, including the paternal grandparents.
In 2004, the maternal grandmother died. The mother inherited a parcel of land in the Philippines which remains vacant and is used by the mother’s brother to grow vegetables for home consumption.
The mother asserts that, in October 2005, she commenced playing poker machines while the children were asleep at night and that she continued to do so until December 2006.
On 14 October 2005, the father alleged to the police that the mother had “surreptitiously drugged” him that morning. The father was taken to P Hospital.
The father asserts that, on or about 26 December 2005, separation occurred.
The mother asserts that, on 27 December 2006, when the father commenced residing in the garage of the former matrimonial home, the parties separated.
On 19 October 2007, the father initiated proceedings in the Family Court of Australia seeking orders in relation to children and property.
On 31 October 2007, orders were made in relation to the children to the effect that the Department of Community Services (“DoCS”) intervene in the proceedings; that the father spend time with the children each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday, each Monday and Thursday from after school until 6.00pm, and each Wednesday overnight; and, that the father not video or photograph the children.
On 13 December 2007, a Magellan Report was issued in which DoCS declined to intervene. It noted that there had been seven contacts/notifications to DoCS and that, in an investigation report dated 24 October 2005, concerns were raised as to the father’s mental health needs. It also recommended assessment of the father’s mental health and capacity to provide for the children’s care.
On 14 December 2007, orders were made to the effect that there be a variation of the interim orders in order for the father to spend time with the children each alternate weekend, each Monday from after school until 6.00pm, and each Wednesday overnight. The matter was to be set down for a three day hearing in order for an expert report to be prepared by Dr M.
On 1 February 2008, the mother filed an amended response seeking orders to the effect that she have sole parental responsibility for the children and that they live with herself; and, that the father spend supervised time each Saturday and have telephone communication with them. She further sought orders in relation to property.
On 9 May 2008, the father filed an application in a case seeking orders, in summary, in relation to the appointment of Dr Q as the single expert; a variation of the interim parenting orders; and, property.
On 23 June 2008, the father filed an amended application in a case seeking further orders to the effect that shares be sold and the proceeds be used to pay the fees of Dr M; and, further orders in relation to property.
On 24 June 2008, orders were made by consent to the effect that Dr M be substituted for Dr Q as the Court appointed single expert.
On 30 June 2008, the father filed an application in a case seeking orders in relation to, inter alia, a review of the order made on 23 June 2007 and property, in addition to injunctive orders. The application was dismissed on 21 July 2008.
On 1 July 2008, the father filed a reply seeking certain financial relief.
On 28 July 2008, orders were made by Judicial Registrar Loughnan (as he was then known) to the effect that the father vacate the matrimonial home; that a warrant be issued to bring about the father’s removal from that property; and, that the warrant be stayed until 29 July 2008.
On 29 August 2008, the father filed a further application in a case seeking further interim parenting orders.
On 10 October 2008, the father filed an amended application in a case maintaining the interim parenting orders sought and seeking orders for the assessment of the mother’s niece Ms O by Dr Q.
On 17 October 2008, orders were made to the effect that the father spend time with the children each alternate weekend and each Thursday overnight.
On 3 February 2009, the parties and the children attended upon Dr Q for assessment.
On 19 March 2009, Dr Q produced a report.
On 12 June 2009, the mother served an application in a case seeking interim orders. Orders were made by Justice Flohm to the effect that the father receive $6500 from controlled monies held on behalf of the parties to pay for psychiatric treatment. It was further ordered that the matter be listed for hearing on 11 February 2009 for the father to advise of any therapy he underwent or was to undergo. It was noted that the father indicated that he would attend upon and consult with a psychiatrist recommended by Dr Q. The father was also given leave to subpoena HSBC to obtain video footage.
On 16 July 2009, the father filed an application in a case seeking short notice. The application was refused. The father filed an application in a case seeking a review of that decision; an order that the video equipment of the G Group be forensically examined; and, the release of funds in relation to same. Orders were also sought in relation to subpoena issues.
On 24 July 2009, the father filed an amended application in a case to the effect that the orders sought in relation to G Group be discontinued and for the partial distribution of property. The father maintained his applications in relation to the subpoena and further sought leave to issue a subpoena to this Court.
On 3 December 2009, the father sought, in an application in a case, orders directed to the Marshall of this Court in relation to the issue of contempt proceedings and the examination of evidence in the possession of the Court. Leave was given for the father to issue contempt proceedings and for the examination of evidence in the Court’s possession. A number of other orders were sought by the father largely in relation to compliance and subpoenas. The father further sought that Dr Y be substituted for Dr K in any order. An order for a stay in relation to Dr Q was also sought.
On 11 December 2009, Justice Flohm made orders to the effect that the matter be listed for hearing over four days and for the preparation of the matter for hearing. It was noted that the orders made on 12 June 2009 had been unintentionally thwarted by the reluctance of the father’s doctor to consult further with the parties. It was further noted that the father was at that time consulting with Dr Y; that the father was to provide the Independent Children’s Lawyer with that doctor’s details; and, that the Independent Children’s Lawyer was to provide that doctor with the Dr Q’s report and an explanation of the psychiatric intervention recommended. Leave was also granted to allow the parties to subpoena the NSW Police and orders were also made in relation to the provision of video footage and its use by the father at the hearing.
On 7 January 2010, the father filed a notice of appeal against the orders made on 11 December 2009 by Justice Flohm. The father’s application for expedition of the appeal was dismissed on 29 January 2010 by Justice Boland.
On 22 January 2010, the father filed an amended notice of appeal.
On 26 February 2010, the father filed an application in a case which was listed for hearing on short notice.
On 3 March 2010, the father filed a notice of discontinuance of notice of appeal, an application for permission to appeal and an amended notice of appeal.
On 26 March 2010, directions were made by me in addition to further orders which, inter alia, defined the topics to be covered in an affidavit of each party.
On 7 May 2010, the matter was listed for final hearing.

Issues

The following are the major issues of fact which I have been able to identify in the case:
a)Although it is agreed that the parties commenced cohabitation in January 1995, whether the parties separated between August 1995 and August 1997.
b)Whether the parties separated in December 2006 as asserted by the mother or 2 December 2005 as asserted by the father.
c)The health of each of the parties; and, whether the father poses an unacceptable risk to the children if his time with them is unsupervised.
d)Whether the mother gambled $106 000 of the parties’ funds (including S’s education fund) during cohabitation or since.

Credit

The mother:

The mother gave her evidence in an apparently straight-forward and honest manner. She made admissions against her interest. She readily agreed that she gambled in the later stage of the marriage. She agreed that she had lost money in doing so. She denied that she had lost the amount alleged by the father.
The content of the mother’s evidence is believable. She readily answered questions which were asked of her.
Unless I specifically indicate to the contrary in these reasons, I do prefer the evidence of the mother to that of the father because, inter alia, I consider that it is likely to be more reliable and not affected by mental illness as in the case of the father.

The father:

The father presented as well-dressed and groomed. He was polite and respectful during all of his appearances before me. He appeared to do his best to assist the Court, even when he clearly found the process to be frustrating.
The father did, on occasions, avoid answering questions which were asked of him. He is clearly an intelligent person and anticipated where the questions asked of him were going. He, from time to time, also sought to answer a question that he anticipated.
By far, the greatest difficulty with the father’s evidence is its reliability. Given the diagnosis of delusional disorder, I have difficulty being able to discern what evidence may have been the subject of delusion and what evidence was not.

Dr Q

Dr Q was cross-examined by the father. There is nothing about her answers to the questions put by the father which has lead me to doubt her credentials, her methodology or her diagnosis. I accept her evidence in its entirety.

Affidavit Evidence

Affidavit Evidence of the Mother

Affidavit Filed by the Mother on 29 April 2010

Evidence in relation to Children

The mother filed an affidavit on 29 April 2010. At that time, the children were spending time with the father each alternate weekend from Saturday at 10.00am to Sunday at 5.00pm; and, from Thursday after school to Friday before school. The mother deposes that she and the father were communicating via telephone; but, that she had concerns about his mental health and thus tried to have as little interaction with him as possible.
The mother deposes to having been the children’s primary carer and that, when she returned to full-time employment after a period of maternity leave after the birth of each child, they were cared for by a nanny until they were old enough to attend day-care.
The mother deposes that, following S’s birth, she and S resided with her sister, Ms E, in A for a period of approximately four months; and that, thereafter, she and S resided with her sister, Mrs W for a period of two years. The mother deposes that Mrs W, her husband, Mr W and their children assisted in S’s care and also provided financial assistance to her. The mother deposes that, following S’s birth, the father lived in T and undertook tertiary studies; and that, in August 1997, the parties resumed cohabitation.
The mother deposes that, following S’s birth, a Child Support Assessment was issued for the father to pay child support to her; but, that he refused to pay any child support and, when they resumed cohabitation, requested that she inform the CSA that he was not in arrears.
The mother deposes that the father provided little assistance in caring for the children and that, for example, she was responsible for their care when they were unwell. Although the mother concedes that the father was responsible for delivering and collecting the children to and from school, she deposes that, when she returned home from work, the children would not have done their homework and would not have been given dinner.
During the marriage, the mother deposes that the father restricted the children’s social interactions with family and friends, including by not allowing her to take them to see the paternal grandparents or other paternal family members. Since separation, the mother deposes that she has taken the children to visit the paternal family approximately once every month; that the children have enjoyed spending time with the paternal grandparents at their farm; that C has spent time there during the school holidays; and, that the children speak with the paternal grandparents approximately fortnightly.
The mother deposes that the father refused to sign the children’s passport applications when she and the children were scheduled to go to the Philippines to see the ill maternal grandmother unless she gave him $3000.
The mother sets out the details of the current arrangements in relation to the children, including their daily routine. The mother deposes that she and the children are living in a five bedroom home in B (“the B property”), owned by Mrs W and Mr W; and, that she wished to continue living there. The mother deposes that she and the children have a good relationship; that they discuss their days and undertake activities together on weekends, including visiting friends and relatives and going out to restaurants. The mother deposes that she has put in place boundaries for the children and that they complete chores in exchange for pocket money.
The mother proposes that S complete his secondary education at F High School. The mother proposes (pending the outcome of selective school test results) that C attend M College.
The mother deposes that S catches the train to and from school; and, that she walks C to the bus stop and C catches the bus directly to and from A Catholic Primary school. The mother deposes that she and the children arrive home at approximately 4.30pm each day. During school holiday periods, the mother deposes that she has taken leave from her employment to care for the children; or, if she has been unable to do so, her sister, niece, nephew or cousin have cared for and supervised them.
For the purpose of the father spending time with the children, the mother deposes that he collects them from either the bus stop near the mother’s home or from their respective schools at the commencement of their time with him. The mother deposes that, for the purpose of her collecting the children from the father, a return trip from B to Sydney takes approximately five hours. The mother deposes that she does not have a driver’s license or motor vehicle.
The mother deposes that the children participate in extra-curricular activities. The mother deposes that C takes karate lessons twice per week and that S participates in school band and sporting activities. The mother deposes that, during the time that the father spends with the children, he has refused to take C to karate or to allow them to attend birthday parties which fall on a weekend despite them expressing a wish to do so. The mother deposes that she has no objection to the father attending the children’s extra curricular activities and encourages him to do so. The mother deposes that the father has refused to collect C from the bus station at B because it was too far away and that S has said that the father has not given him money to enable him to return by public transport to the mother’s home.
The mother expresses concerns as to the father’s parenting capacity; in particular, she alleges that he is unable to identify and manage the children’s needs. She alleges, for example, that, when she collects the children on a Sunday afternoon, they tell her that they are hungry and that there was not any food at the father’s home. The mother deposes that she provides the children with $20 each for emergencies when they spend time with the father as they have said to her that sometimes they have been unable to call her or buy bus tickets.
The mother deposes that, on the majority of occasions that the children spend time with the father, they have forgotten their school books, homework or assignments. Furthermore, the mother deposes that she has to ensure that the children have spare clothing and school uniforms as the father does not have any clothing for the children and he returns their clothes unwashed.
The mother deposes that, while the children love their father, she believes that they are unable to be themselves when they spend time with him. She deposes that S has said to her on at least a dozen occasions, “I don’t want to go to Dad’s. It’s boring there. Why do I have to go? He doesn’t listen and let us do anything. I’m not five years old anymore.” The mother deposes that C has said to her, “Mum I don’t like it when it’s just me and Dad. I like it when [Ms D] is around. At least she lets me do things.”
The mother deposes that family are very important to her and that, in particular, the children are close to her niece and nephew. The mother and the children had previously lived and spent significant time with them following the parent’s separation. The mother also sets out other members of her family with whom the children spend time, including her sisters and cousin. She says the children have a close and loving relationship with their cousins, who are of a similar age.
The mother deposes that she does not believe that there should be any restriction on the children’s time with Mrs W and Mr W, who see the children approximately twice per year when they travel to Sydney from their home in Tasmania. They are C’s godparents and have been actively involved in the children’s upbringing. She says she has not witnessed any inappropriate conduct on the part of Mr W towards either of the children.
The mother deposes to being in good health, but expresses concerns about the father’s mental health. The mother deposes that the father appears to her to be paranoid and irrational and that he has told her that he is being followed by police. On approximately four out of five occasions, the mother deposes that the father is late in collecting or delivering the children.
The mother denies the father’s allegations that she has sexually assaulted S and injected C with unknown substances.
The mother proposes that the children continue to live with her and, given her concerns about the father’s mental health, she deposes that she does not believe that it is in the children’s best interests to spend unsupervised time with him.

Evidence in relation to Property

The mother deposes that, at the commencement of cohabitation, she was employed with N Company, earning $24 202.83 per annum. The mother further deposes that she owned the property at A (“the A property”) which she purchased in May 1993 for $93 500 subject to a mortgage to the Westpac Banking Corporation of $75 000; that she owned furniture and personal effects which she purchased for approximately $10 000; and, that she had superannuation.
The mother deposes that, at the commencement of cohabitation, the father was a student and not in paid employment. The mother further deposes that, to her knowledge, the father did not have any significant assets or superannuation, but that he had a HECS liability.
During cohabitation and the marriage, with the exception of maternity leave periods, the mother deposes that she was in continuous paid employment. During the marriage, the mother further deposes that she was the sole income earner. The mother sets out the income that she earned from her employment with N Company between 1995 and 2000.
The mother deposes that the father refused to engage in paid employment and said: “I’m too smart for those stupid jobs. I’m not going to belittle myself working for someone else.”
The mother deposes that she was retrenched from her employment with N Company in September 2002 and that she received a redundancy payment of approximately $33 000.
The mother deposes that the A property was tenanted from the date of its purchase to August 1997 and that it served as the former matrimonial home thereafter. The mother further deposes that she met any shortfall between the rental payments and the mortgage.
In or about 2003, the mother deposes that she purchased the property in New Zealand (“the New Zealand property”) with the redundancy payment and a redraw on a NAB loan for approximately NZ$289 000 subject to a mortgage to Westpac Bank (“Westpac”) of NZ$236 000. The mother further deposes that the New Zealand property was tenanted and that she met any shortfall between the rental payments and the mortgage.
The mother deposes that the father has not made any financial contributions towards the A property or the New Zealand property.
The mother deposes to having solely met the cost of mortgage repayments, utilities, strata payments, childcare expenses and school expenses; and, to having purchased clothing for the children and groceries for the family. The mother further deposes to not having spent excessive amounts of money on items for herself.
The mother deposes that she provided the father with $60 per fortnight for his personal expenses; and that, in or about 2004, she established, at his request, an account for him to trade shares.
The mother provides evidence in relation to her admitted gambling problem. The mother deposes that, from October 2005 to December 2006, she played poker machines at a local hotel when the children were asleep; and, to having done so in order to escape family conflict and problems, and what she describes as “…the father’s lack of emotional and financial support”. The mother further deposes that she has attended counselling and Gamblers Anonymous.
During cohabitation, the mother deposes that she was responsible for the maintenance and upkeep of the A property, including cleaning the home and undertaking repair work or engaging a repairman.
The mother sets out her contributions as a parent and homemaker. The mother deposes to having been the primary carer of the children and primarily responsible for the management of the household. The mother further deposes that, although the father was not in paid employment, he did not assist much with the care of the children or household chores. The mother deposes that, in 2003, the father commenced collecting the children from school.
Since separation, the mother deposes to having been solely responsible for meeting the mortgage payments of the A property and the New Zealand property; the rent of the B property; and, expenses relating to the children, including school fees, the purchase of school uniforms and other educational expenses.
The mother deposes to having been only able to pay the interest payments in respect of the mortgage over the A property; that, in November 2007, she was informed by NAB that the mortgage facility had been cancelled due to non-payment of the principle amount; that, in May 2008, she thus closed the Australian Scholarship Group (“ASG”) account that she had opened for S’s education and applied the money towards the mortgage; and that, in or about August 2008, she was informed that the property would be sold if the mortgage was not refinanced or paid in full. Upon the mother’s application, orders were made by this Court for the sale of the A property.
The mother deposes that, due to her financial difficulties, the New Zealand property was also sold; but, that the net proceeds of sale were insufficient to discharge the mortgage over the property and she remained indebted to Westpac to the sum of NZ$95 054.77. The mother further deposes that, on 26 December 2008, she received a letter from Westpac indicating that it was willing to accept NZ$5000 to be paid on or before 25 January 2009 as full and final settlement of the debt; that the father refused to provide his consent to the release of NZ$5000 from the controlled monies account for that purpose; and that, on 20 January 2009, she paid the sum by way of a loan from Mrs W which has not been repaid.
The mother deposes that, since separation, she has not received any financial assistance from the father in respect of the children or the properties.
On 16 September 2008, the net proceeds of sale of $22 396 were deposited into a controlled monies account.
Pursuant to orders of this Court, the father and mother sold all shares held in their names in publicly listed companies, and the net proceeds of $91 592.88 were deposited into a trust account from which $8800 was paid to the single expert in respect of her fees and the balance then of $82 792.88 was deposited into a controlled monies account in the parties’ joint names.
The mother deposes that her legal costs were met by the paternal grandparents from the commencement of these proceedings to March 2010; that her legal costs totalled $76 305.98 at the time that the affidavit was sworn; and, that she proposes to repay the paternal grandparents.

Affidavit Filed by the Mother on 7 May 2010

The mother deposes that, in 2004, the paternal grandmother died and she inherited a small parcel of vacant land in the Philippines.
The mother deposes that, in 2000, she lent her brother the sum of $2000. It is not clear if that loan was repaid. I will treat it as not repaid.
The mother deposes that she gifted to her brother the sum of $19 000 to enable him to build a house.
The mother deposes that, since December 2009, she has gambled further money and that she has lost $5000.

Affidavit Evidence of Ms O

Ms O filed an affidavit on behalf of the mother on 30 April 2010. She is the mother’s niece, and Mrs W and Mr W’s daughter. She is 33 years of age. At the time that she filed the affidavit, she saw the children approximately once a month.
Ms O sets out her evidence in relation to her relationship with the children. She deposes that she treats them as her niece and nephew. She further deposes that the mother and S resided with herself and her family at the B property for approximately two years; and, that she spent approximately two weekends a month caring for the children while the mother was at work.
Ms O deposes that, on occasions, when she would return S to the former matrimonial home after he had been in her care, he would cry and say words to the effect: “Please don’t send me back to him.” Following separation, when the children and herself were residing together at the B property, Ms O deposes that S said to her in relation to the father: “Why do I have to go spend time with him?” and “…I don’t like going there. It’s boring. I don’t get why I have to go. He never listens to me.” Ms O further deposes that, when she asked C if she enjoyed going to her father’s home, she said: “Yeah but I don’t like going to dad’s place overnight. I would like to go during the day and I like it when [Ms D] is there because [Ms D] and I do art.”
Ms O deposes that her parents treat the children like their own grandchildren and that, for example, her father taught S to ride a bike. Ms O further deposes that, when her parents visit, the children are excited to see them.
Ms O deposes that the children have a close relationship with the extended maternal family and that, when they resided together at the B property, the children saw members of the maternal extended family on a weekly basis.

Affidavit Evidence of Mrs W

Mrs W filed an affidavit on behalf of the mother on 30 April 2010. Mrs W is the mother’s sister. She and her husband, Mr W have two children, Ms O and a son. She and Mr W currently live in Tasmania. She gives her occupation as hotelier.
Mrs W deposes that, in 1989, when the mother migrated to Australia, the mother resided with herself and her family.
Mrs W deposes that she has provided the mother with financial and emotional assistance, including assistance with the care of S when the mother and S resided with herself and her family for a period of two years after his birth. Mrs W further deposes that she has cared for the children when the mother was required to work and that she has purchased food and clothing for them.
Mrs W deposes that she considers the mother to be more of a daughter than a sister. Mrs W further deposes that she is very fond of both children.
Mrs W deposes that, upon the mother’s request, she loaned the mother $5000 to enable that amount to be paid in respect of the New Zealand property; but, that at the time that she filed the affidavit, the debt had not been repaid.
Mrs W deposes that she and Mr W travel to Sydney approximately twice a year to visit family members and that they stay with the mother during these visits.

Affidavit Evidence of Mr W

Mr W filed an affidavit on 30 April 2010. Mr W is the mother’s brother-in-law; however, he deposes that he has treated the mother more as a daughter and the children as grandchildren. Mr W further deposes to having provided both the mother and the children with financial and emotional assistance, including during the two year period that the mother and S resided with himself and his family at the B property.
Mr W deposes to having a strained relationship with the father and states: “I have seen first-hand the struggles [the mother] has gone through throughout her relationship”. Mr W further deposes that he would see the mother taking both children to the nanny on her way to work and that she undertook overtime work.
Mr W deposes that he and Mrs W return to Sydney to visit their children and extended family members; and, that they stay with the mother and the children at the B property. Mr W further deposes that, when the children see himself and Mrs W, they run towards them, give them a hug and kiss and are eager to tell them what they have been doing.
Mr W denies having ever sexually assaulted C and having ever been sexually inappropriate towards the children or any other children.
Mr W deposes that, in January 2002, Mrs W said to him that she had loaned the mother $5000.

Affidavit Evidence of the Father

Affidavit Filed by the Father on 30 April 2010

Evidence in relation to Children

The father filed an affidavit on 30 April 2010. At that time, he was living with his partner, Ms D, in a three bedroom house in which each child had their own room. Post separation, the father deposes that he has had contact with the children for 15 days per month, including 6 overnight stays per month.
The father deposes that he was the primary carer of the children for most of their lives and that the mother was the primary income earner. The father deposes that he thus formed a strong bond with the children and that they also enjoy a good relationship with Ms D. The father further deposes that the children love their mother and that it is in their interest that the relationship between them continues.
The father deposes that he has no health problems which affect his capacity to parent the children.
The father deposes that he fully supports C’s attendance at karate and both of the parents attending events in which the children are involved. The father further deposes that the children, his partner and himself have gone indoor rock climbing.
The father deposes that the changeover arrangements have largely worked well; but, that the mother seeks that he do all the travelling.
The father proposes that he collect C from after school care and that, when she commences high school, she travel by public transport to his residence.
The father proposes that he and the mother communicate about issues relating to the children by mobile telephone. The father deposes that the mother has communicated through the children.
The father deposes that Mrs W and Mr W do not support or encourage his role as the children’s father and that they have denigrated him in front of the children. The father deposes that he seeks that C not visit Mrs W and Mr W in Tasmania and that, when they visit, Ms O remain present at all times. The father further deposes that he would not be supportive of the mother travelling overseas with the children in the company of Mrs W and Mr W.
The father deposes that he continues to have concerns that Mr W may sexually abuse C, but concedes that C is now older.
The father deposes that, in 1992, he was surreptitiously drugged by a flatmate; and, that he was convicted of the assault of the flatmate for which he received a one year Good Behaviour Bond. The father further deposes that he has not been charged or convicted with any other offence since.
The father deposes that, on 14 October 2005, he attended the A Police Station after having been surreptitiously drugged by the mother. The father deposes that he did so notwithstanding his suspicions that he was being stalked by police officers from that Station. The father deposes that he was admitted to P Hospital and examined by a psychiatric nurse; and, that a handwritten report completed by that psychiatric nurse is directly contradictory to the findings of the single expert. The father further deposes that the hospital test results did not indicate any drug use, but abnormally high levels of liver enzymes.
The father deposes that he suspects that he was drugged by the mother three or four times in the preceding six months. The father deposes that blood samples were given to two police officers for testing of halothane and that he does not know whether the testing was in fact ever undertaken. The father further deposes that, soon thereafter, he began sleeping in the garage and locking the door.
The father deposes that, on 18 July 2007, the mother said to him in relation to C: “you can come and stay with her ([C]) if you want” and that this “…is evidence that the Mother is inviting me to sexually abuse [C] as she thinks that that will resolve the argument.”
The father deposes the following:
“I speculate that corrupt NSW police officers, after taking an interest in me, sought out [Mr CU], listed in my criminal record, to act as an informant and re-introduced him to the respondent mother who was trained by [Mr CU] in the technique of surreptitiously drugging me with halothane or other volatile anaesthetic. It is not possible for the mother to gain these skills by her own.”
I note that the father’s oral evidence in relation to the role played by the mother and Mr CU in his drugging is different to the portion of his affidavit evidence quoted here.
In relation to his allegations of police corruption in respect of these proceedings, the father deposes that documents relating to the return of subpoena by the Commissioner of Police were falsified.

Evidence in relation to Property

The father deposes that the New Zealand property was acquired by the mother without his knowledge. The father further deposes that S’s education fund of $18 411.43, as at 23 April 2007, was liquidated by the mother.
The father deposes that he and the mother jointly carried out renovations to the A property, including painting and tiling work.
The father deposes that, between 2000 and 2004, he paid $100.00 per month into the mother’s bank account and that, from 2004 to 20 July 2007, the paternal grandparents paid $200.00 per month into the mother’s bank account as a contribution by him.
Post separation, the father deposes that the paternal grandfather has paid the mother’s legal costs, totalling $65 634.

Affidavit Filed by the Father on 7 March 2008

The father filed an affidavit on 7 March 2008. The father provides evidence in relation to a conversation that he alleges to have taken place on 18 July 2007 between himself and the mother in the presence of C. The father deposes that, in the conversation, he asked the mother to ensure that C sleeps in her own room and not with the mother. The father deposes that he attempted to discuss the issue other than in the child’s presence. The father further deposes that the conversation is typical of conversations which took place during their marriage and demonstrates an unwillingness on the part of the mother to make joint and collaborative decisions on major long term issues.
The father deposes that the mother would arrive home from work at approximately 8.30pm on weeknights; and, that she would take C into her bedroom, lock the door and go to sleep after one or two hours. The father deposes that, when going between the mother’s bedroom and the bathroom during the night, C would knock on the door in order to re-enter the bedroom. He further deposes that the foregoing “…demonstrates that the Respondent places an importance on the physical and mental control of C.”

Affidavit Filed by the Father on 9 May 2008

The father filed an affidavit on 9 May 2008. It principally relates to property matters. It was the subject of extensive objection by counsel for the mother. What is set out hereunder is that which remained after the striking out of its balance.
The father deposes that the mother gambled and lost $107 680. The father annexes and marks documents numbered 1, 2 and 3 illustrating the loss. The father highlights entries in bank statements, which were part of annexure 1, for the mother’s bank accounts during the period of 2003 to 2007.
The father annexes his own summaries of the bank statements indicating every entry that he considered was a withdrawal for gambling and a total loss of $107 680. During the cross-examination of the mother by the father, he showed her copies of the bank statements as he asked questions and put propositions to her about her gambling.
The father annexes copies of “sign in slips” which the mother completed when she attended gambling establishments.
The father annexes a copy of a letter, which he had obtained, authored by the mother and addressed to “AE Family”. The mother, in her oral evidence, attested to the authenticity of the letter. The father relies upon the following extract:
“That is the problem with me and [the father] but at least [the father] is looking after the kids that I have a chance to do all the overtimes at work. I do not have to worry about the kids at home. But now I had to set up a business for him that he can do it on the internet at home and at the moment he is doing fine with it. He is now making money with share trading.”
The father deposes that he made 140 share trades and that he researched all of his purchases on the internet at home. The father deposes that, in addition to trading on behalf of the parties jointly, he also executed trades on behalf of the mother through her brokers.
The father deposes that he took the children to and from school and that he went to their respective school if either child was sick and had to be collected.
In support of his contention that the parties were cohabiting from early 1995, the father annexes a copy of a lease for the period of 8 April to 7 October 1995 into which the parties entered. That of course does not deal with the mother’s allegation that the parties were separated between about August 1995 and August 1997; that the father remained in the T accommodation; and, that she and S lived with Mrs W.

The father claims that the A property was an “initial contribution” on behalf of each of the parties. In support of this claim, the father annexes some documents. The first is a copy of the contract for sale dated 7 April 1993. It shows a purchase price of $93 500, the mother as the sole purchaser and the mother’s address as …, Z. The purchase occurred almost two years before cohabitation.
There is also a settlement letter dated 25 May 1993 from Westpac addressed to the mother; a loan agreement dated 20 May 1993 between the mother and Westpac; and, a copy of a “Home Loan Statement” for the period of April to June 1995 addressed to the mother at ..., X which shows credits from L.J.Hooker “Owner Payments”.
It is the mother’s case that the father made no contribution to the purchase of the property.
The father does not give any evidence to establish how he is entitled to an interest in the A property at the date of commencement of cohabitation in about early (possibly April) 1995.
The father further claims that the mother purchased the New Zealand property without his knowledge.

Affidavit Filed by the Father on 30 June 2008

The father filed an affidavit on 30 June 2008 in which he asserts that the principles in In the Marriage of Harris (1987) FLC 91-822 ought to apply to the present case despite his assertion that Judicial Registrar Loughnan (as he then was) found those principles to not be applicable in respect of which he seeks a review.
The father deposes to having been absent from the workforce since 1997 and having no recent work experience. He deposes to having completed a Bachelor of Science; but, that he has no work experience relevant to that degree. He deposes that, for over ten years, he has been involved in the trading of shares. He deposes that, as at 30 June 2008, the share account was worth some $96 000 which represented an increase of 45% since 9 May 2008. However, he deposes that his skills and experience “…appear not to be easily marketable to prospective employers or recruiters”; that he has been unsuccessful in securing “appropriate gainful employment” in that field; and, that he has “‘missed the boat’ and… foregone employment opportunities in this field (especially at a younger age) in order to promote the welfare of the family by engaging in domestic activities, notwithstanding share trading.” The father further deposes that he planned to retrain for a new career by completing a 26 week TAFE bookkeeping course.
The father deposes that he was reliant on the Newstart allowance and to being involved in actively seeking employment. He deposes that he was otherwise not in receipt of financial assistance and had a credit card of a $3000 limit of which $1000 remained. At the time of preparing the affidavit, he was not cohabiting with anyone and deposes that he had the care of the children for 15 days per month, including 6 overnight stays, during which time he would provide meals for the children.

Affidavit Filed by the Father on 9 July 2008

The father filed an affidavit on 9 July 2008 addressing matters raised by the mother in her affidavit of 11 June 2008.
The father deposes that he and the mother commenced a relationship while studying together in 1991, and that they purchased the former matrimonial home in A in 1993. He further deposes that the mortgage of $61 061 was refinanced in 2001 and an additional $30 000 was borrowed for share investment purposes.
The father deposes that, since separation, the mother has not provided him with financial support. The father further deposes that he has paid the electricity and water rates for the A property and has purchased and prepared food for the children for the 15 days per month that they are in his care.

Affidavit Filed by the Father on 16 July 2009

The father filed an affidavit on 16 July 2009. The father alleges that, on 3 February 2009, one hour prior to his interview with Dr Q and when inside a shop in Sydney, a man approached him and said words to the following effect: “Police are watching you, and we’ll be outside [Dr Q’s] rooms.”
It is alleged by the father that he has been the subject of police harassment and that, in December 1999, he became aware that he was the subject of surveillance by unknown persons in plain clothes. He deposes that, in February 2000, he noticed one of the persons in police uniform at a petrol station near the A property.
The father deposes that he took photographs of the persons whom he suspected were following him and annexes those photographs to the affidavit.

Affidavit Filed by the Father on 24 July 2009

The father filed an affidavit on 24 July 2009 in which he deposes that, on 16 July 2009, when attending the Parramatta Registry of this Court, he observed the man in plain clothes to whom he refers in the affidavit of 16 July 2009.

Affidavit Filed by the Father on 25 August 2009

The father filed an affidavit on 25 August 2009 to which he annexes further images dated 16 June 2004 of a person whom he alleges is undertaking police surveillance on him.

Affidavit Filed by the Father on 7 December 2009

The father filed an affidavit on 7 December 2009 in relation to his allegations of police harassment and stalking. In relation to those allegations, he issued a subpoena to the HSBC Bank seeking the production of video footage. However, he deposes that he was informed that the footage no longer existed and consequently he sought the appointment of an expert to recover the footage from the hard drives of the security firm who held the footage.
The father further details his observations of video footage taken at the Family Court building in Parramatta. He further asserts that through the alleged “…stalking, harassment and intimidation NSW police officers intend to affect my self-representation and influence to [sic] outcome of this case.”

Affidavit Evidence of Ms D

Ms D filed an affidavit on behalf of the father on 11 May 2010.
Ms D deposes to enjoying having both children stay at her residence. In relation to her relationship with the children, she deposes to considering herself “…a good friend that (sic) can contribute and support them as they grow into adulthood.” She deposes that she and S share a sense of humour and enjoy watching television and DVDs together in addition to various other activities such as going to the art gallery, the National Park, indoor rock-climbing and eating out. She deposes that, while she and the father encourage S to be involved in all their outings and activities, he will sometimes choose to instead play on the computer or meet up with friends. She further deposes that she and the father feel it is appropriate, given his age, that S be making some decisions about what he wishes to do in his free time.
Ms D deposes that she and C have formed a solid friendship and share common interests such as arts and crafts, cooking, shopping, playing board games, going on outings to the markets and the park, and playing with the dog. She deposes that C insists that she tuck her in at bedtime and that C often confides in her that she “hates being alone” because she is often left alone at the mother’s residence when the mother is elsewhere and S is out with friends. In addition, Ms D deposes that C has discussed these proceedings with her.
Ms D deposes that C confided to her and the father that she was being bullied at school and did not feel she could approach the mother about it. She deposes that C told them she did not want to “get in trouble” from school. She further deposes that the mother told C that she has AIDS and that C should therefore not use the towels at the father’s home. However, she deposes that C knew this was incorrect.
Ms D deposes that she and the father provide the children with healthy food and that C has said the mother lets her eat “yummy junk food”. She deposes that C has never said anything negative about either parent and does not talk about the mother while she spends time with the father. She deposes that, to her knowledge, the father does not discuss these proceedings with the children, and says he has never made any negative remarks about the mother in her hearing. The deponent considers the father “…is aware not to put any emotional strain and stress on his children.”
Ms D describes the father’s parenting in positive terms and considers him a “wonderful father”. She deposes that the father assists the children with their school work, ensures their daily needs are met, including by ensuring they have nutritious meals and go to bed early, and makes sure they are at school on time. She considers that the father and S are strengthening their bond through literature, the computer and school projects and that they both enjoy watching comedy programs. She deposes that the father and C share a strong bond and that they are often laughing and singing together.
In relation to Dr Q’s diagnoses of the father, Ms D deposes: “[p]ersonally I don’t understand why [Dr Q] could diagnose [the father] with Schizophrenia, delusions and paranoia within a half an hour interview”; that she has a close friend with this mental illness and is “…certain that [the father] does not display any of the symptoms”; and, that she can only say that, knowing the importance of the report, he was nervous on the day of the interview.

Affidavit Evidence of NH

NH filed an affidavit on behalf of the father on 19 October 2007 in relation to an event which occurred on 1 February 2004 outside the A property. On that date, a car with a male driver and female passenger arrived outside the property and the father, mother and two children walked to the car. The driver was said to have said words to the effect, “He’s not coming”. Only the mother got into the car and it appears the father and two children remained at the property.
On the way past the driveway, the father was said to have forcibly struck/pushed the car’s rear vision mirror out of position, but without breaking it. After a short period, the deponent alleges that the driver alighted from the car and ran up to the father. The deponent alleges that the driver punched the father two or three times in the head and that the father then put his arms up to defend himself. The mother was said to have then alighted from the car and pulled the driver away from the father. The deponent alleges that the children witnessed the alleged assault and were “visibly disturbed” and that the police also attended.

Exhibits

Exhibit “W1”: Minute of Orders Sought by the Mother

A minute of orders sought by the mother was tendered by her counsel on 7 May 2010. The orders sought included the mother having sole parental responsibility for the children and that she consult the father on any decisions about the children’s long term care, wellbeing and development.
The orders sought also included the mother being permitted to remove the children from Australia for a period of four weeks on the condition that she provides the father with four weeks written notice of her intention to travel overseas with the children and detailed itineraries including contact numbers; and, that the mother be required to facilitate communication between the father and the children at least once per week during their time overseas.
The minute of orders also included financial orders sought.

Exhibit “W2”: List of Professional Costs for the Mother’s Representation

A one page list was tendered by counsel for the Independent Children’s Lawyer on 7 May 2010 outlining the costs of the mother’s representation during the hearing.
The list indicates that her approximate legal costs as at 7 May 2010 were $101 710.96. The mother’s expected legal costs for subsequent days of the hearing were to include $2887.50 for a solicitor and $4440.00 for a barrister, where the hearing duration was estimated to be 7 days. As at 7 May 2010, the mother had only paid $76 305.98.

Exhibit “W3”: List of Objections to Father’s Affidavits

A list of objections was tendered by counsel for the mother on 7 May 2010. The list identifies numerous objections to five different affidavits filed by the father from 7 March 2008 to 30 April 2010.

Exhibit “W4”: Subpoena 18 – Dr I – Entries of 12 September 2007 and 21 September 2007

Medicare records were tendered by counsel for the mother on 10 May 2010. The subpoena contains the following:
·Patient notes dated 6 February 2006 to 24 October 2008 in relation to the father.
·A letter from Dr H, who x-rayed the father’s bones, dated 2 May 2006 in relation to the father.
·A letter from clinical professor S dated 10 May 2007 in relation to the father.
·A colonoscopy report of the father dated 5 June 2007.

Exhibit “W5”: Subpoena 9 – Medicare Australia Medicare Records

Medicare records were tendered by counsel for the mother on 10 May 2010. The subpoena includes a letter from their Information Release Officer, indicating their compliance with the subpoena. However, some of the information required is greater than five years and would not be readily available.
Medicare provided a list of medical providers, types of consultation and procedures, methods of payment and other transactions in relation to the father and the children from February 2006 to March 2010.

Exhibit “W7”: Subpoena 15 - Progress Notes and Letter to Dr L from Professor F

The subpoena was tendered by counsel for the mother on 11 May 2010. The subpoena requested medical files of the father relating to treatment by Professor G.
The subpoena includes progress notes from the Western Sydney Health Service; medical results from the Institute of Clinical Pathology and Medical Research dated 19 January 2004; a Final Report made by Dr DR on 19 January 2004, providing findings of abnormal liver function; and, three letters to Dr L from Professor F dated 14 January 2004, 14 April 2004 and 13 October 2004.
In relation to the letters from Professor F, the first letter dated 14 January 2004 informs Dr L of some of the causes of the father’s abnormal liver test readings. The diagnosis is obesity-related liver disease, possibly exacerbated by alcohol.
The second letter dated 14 April 2004 provides an update on the father’s condition. The father has lost 7 kg in weight, and with his liver tests improving dramatically since January.
The third letter dated 13 October 2004 provides a further six month update on the father’s condition. The father regained 2kg in weight, and his liver tests had become more abnormal.

Exhibit “W8”: Orders of 12 June 2009

The sealed order made on 12 June 2009 was tendered by counsel for the mother and lodged with the Court on 12 May 2010. It was ordered that leave would be granted to the father to issue a subpoena to the HSBC Bank for video footage. The matter was to be relisted on 11 December 2009. Leave was granted to all parties to relist the matter on 7 days notice by arrangement with the Court. The Court noted the parties had agreed to the father being provided with $6500.00 of the parties’ funds (held by the mother’s solicitor) for the purpose of any psychiatric treatment he may require.
In the ‘Minute of Consent Notation and Orders’, the father indicated to the Court that he would attend a meeting with a psychiatrist and obtain a referral from Dr K for that purpose. The Court ordered that the Independent Children’s Lawyer provide copies of the single expert’s report to Dr K and to any psychiatrist who the father consults upon referral. As a result, the mother’s solicitors were to release and pay $6500 to the Independent Children’s Lawyer from the funds held in trust and to use the fund to pay all fees by the father to any psychiatrist who the father consults.

Exhibit “W9”: Subpoena 13 – School Records for C (A Catholic Primary School)

The school attendance records were tendered by counsel for the mother and lodged on 12 May 2010. The subpoena requested all files, records, correspondence, copies of correspondence, reports and counselling notes from A Catholic Primary School, A, in relation to C.
The documents provided included Nomination of Fee Payer and Authority for Split Fee Arrangement forms, a student reflection, National Assessment Program Report 2009, Basic Skills Test Individual Student Report 2007, Enrolment Form, National Data Collection Form, Computer Use Agreement, Acceptance Notice, Parent Interview, Certificate of Baptism, Class Attendance Rolls and Academic Reports.
According to the Record of Exhibits, one of the reasons for the subpoena was to obtain the School Attendance Records. The father alleges 19 absences for lateness.

Exhibit “W10”: Outline of Submissions on Property for Mother

The Outline of Submissions was tendered by counsel for the mother and lodged on 31 May 2010. The Outline included non-contentious backgrounds on the parties involved, including dates of birth, date of marriage, date of separation and date of commencement of proceedings. The mother’s solicitor also provided details on the parties’ assets, liabilities and financial resources, based on balance sheets already filed by each party. However, the mother does not accept the father’s balance sheet, as the father treated the mother’s gambling losses as an ‘add-back’ against her.
The Outline of Submissions made comment about the party’s respective credibility when providing evidence to the Court. The Outline suggested that the mother’s manner and presentation was consistent with her affidavit, and also indicated that she accepted concessions made against her, particularly in regards to gambling. The Outline suggested that the father’s evidence is difficult to accept due to his mental health condition or dishonesty. The basis extends from the father’s reluctance to seek medical assistance and failure to report accurate facts to medical practitioners.
Furthermore, the Outline of Submissions provided details on contributions made by the parties. The Outline credits the mother of owning the A property, providing accommodation for the parties and children from August 1997 until October 2007. The father solely occupied the premises from October 2007 to 16 September 2008, making no financial contribution to the mortgage or expenses of the property.
The mother asserted the parties lived separately and apart from August 1995 until 1997. The father made no financial contribution to the mother or to the chid, refusing to meet a child support assessment. There was no dispute that the mother was the overwhelming financial contributor. The mother rejected the notice of any form of share trading activities, arguing that any contribution made by the father was not sufficient to file any tax return with the ATO and any income that the father derived was insufficient to relieve the mother of her contributions. The mother’s significant contribution is claimed to have continued following separation.
The Outline of Submissions also considered s 75(2) of the Family Law Act1975 (Cth), reiterating the minimal amount of assets to be divided and contributions made by the parties. The mother further submitted that she has re-partnered and that both parties have no ongoing medical conditions.

Exhibit “H1”: Minute of Orders Sought by Father

A Minute of Order was tendered by the father on 26 March 2010. The father sought an order in relation to both children. S was said to be at liberty to choose residence and contact arrangements with both parties, with the expectation that the Independent Children’s Lawyer arrange an interview with S to convey the extent of the order.
However, despite that order being sought, the father sought an order for sole parental responsibility for the children upon the condition that he reasonably consults with the mother about the children’s long term care, welfare and development.
According to the father’s minute of orders, the mother would be able to spend time with C every alternate Sunday from 9:00am to 6:00pm. As part of the terms, Ms O would need to be present on these occasions and the mother must collect the children from the father’s residence (with the father expecting to collect the children from the mother’s residence). Furthermore, if the father was intending to travel overseas, the father must provide the mother with four weeks written notice prior to the intended departure. The father is to provide a detailed itinerary including contact numbers for the children while overseas.

The father claimed that between 2002 and 2008 he effected 140 share trades (I note the father’s assertion that there were no trades after the separation). I accept that estimate from the father. As at March 2008 the share portfolio consisted of shares in two companies only and had a market value of $81 293.57. When sold in August 2008 the portfolio yielded $91 592.
Until 2004 the father also had received his Student Financial Supplement payment. The payments had commenced in June 1998 when he received $3699. Then in the next four years he received between $6632 and $7865 each year to 2003. In 2004 he received $4023. I am prepared to accept that the father contributed those monies during that time. There is no specific evidence as to how this income was contributed.
In her submissions, the mother asserts that the father made no financial contributions during the period when the parties lived separately and apart. Further, the mother says the father refused to meet a child support assessment which was issued in the same period. I accept that evidence.
The mother asserts she contributed her earnings from her employment throughout the relationship and a retrenchment payment that she received of approximately $33 000. I accept that evidence. The father concedes that the mother was “[the] main bread-winner.”

Non-Financial Contributions

The father asserted that he made non-financial contributions to the maintenance of the A property during the relationship. However, the father conceded that these non-financial contributions were not of real substance. The father alleged he had done tiling in the unit owned by the mother. The mother said that the tiling was minimal and largely consisted of the father assisting the mother to choose the tiles and removing old tiles. I accept the mother’s evidence that the father did not replace the old tiles with new tiles.

Homemaker and Parent Contribution

In her submissions, the mother asserts that she was the primary caregiver for the children and that she was primarily responsible for the fulfilment of the role of homemaker throughout the relationship. In his submissions, the father asserts that he was the primary caregiver of the children throughout the relationship, except after the birth of each child and outside of the mother’s hours of work. During these periods, the father asserts that the parties jointly cared for the children.
The father claimed he had been able to care for the children before and after school as he was attending university part time for the majority of the marriage.
I accept the evidence of the mother in relation to the parties’ respective contributions as home makers and parents. Notwithstanding that the father was a student and did not work outside of the house, during the cohabitation, I find it was largely the mother who was responsible for the care of the children. I find that in the later years of the marriage from about 2004 to 2007 the father did assist by supervising the children before and after school. Even though the mother worked overtime during the week I find that on most occasions she was still responsible for feeding the children and seeing them off to bed.
Before the children commenced school the mother would take the children to be cared for by a lady she had employed. I accept that the mother did not commence working overtime until C had commenced her schooling.

Post Separation Contributions

Following the separation the father has provided no financial support for the mother or the children.
In her submissions, the mother asserts that she solely made financial contributions to the mortgage repayments of both the A property and New Zealand property until the time at which each property was sold post separation. The evidence is unclear as to when she ceased making the mortgage payments for the A property. I am prepared to accept that she paid some of these payments post separation. Her evidence has been that the property had to be sold because she could not maintain the mortgage payments.
In her submissions, the mother asserts that she contributed to the payment of the shortfall incurred on the sale of the New Zealand property post separation by way of a personal loan. She was able to negotiate with the Westpac Bank in New Zealand to accept a payment of $5000 instead of a larger sum which the bank was claiming. In his submissions, the father argues that the shortfall ought to be added back as he had no knowledge of the purchase of the New Zealand property.
Post-separation, the mother was the primary caregiver of the children. The mother further asserts that she solely provided the financial support of the children. I accept that assertion. The father makes no claim to the contrary.

Conclusion of Assessment of Contributions to Non-Superannuation Assets

In the written submissions of the mother, in relation to property matters, the mother does not assert a percentage figure that the Court should find in relation to the comparative contributions of the parties, nor does she make any submission as to the amount of adjustment which should be made pursuant to s 75(2). She did, however, specify in her minute of order what orders she sought for property adjustment. In those orders, she seeks the entire available fund held in the parties’ name by her solicitor. That would represent a very high percentage of the parties’ assets to the mother. Further, the mother would retain her superannuation.
I assess the contributions of the parties (as at the date of trial) to the acquisition, conservation and improvement of the property of the parties to the marriage, including such property which is no longer the property of the parties to the marriage, to be 70% to the mother and 30% to the father.
The principal matters which give rise to the mother having a larger share in the assessment are as follows:
(i) The disparity in the parties’ initial contributions. That disparity significantly favoured the mother. The property she brought to the marriage was subsequently used as the family residence from 1997 until 2007.
(ii) The contribution made by the mother from the date of birth of S until cohabitation recommenced in August 1997. During this time, she cared for S on her own and without financial assistance from the father.
(iii) The disparity in the income earned by the parties during the cohabitation. Again, this disparity significantly favoured the mother and also included a redundancy payment of about $33 000.
(iv) The disparity in the assessment of home maker and parent contributions. Again, I have found that the mother’s contributions outweighed the father’s in this area.
(v) Post separation, the mother has had the primary care of the children, although they have spent time with the father. The father has paid no child support since the separation. This period is now in excess of two and a half years. This represents a considerable contribution by the mother.

Assessment of Contributions to the Superannuation Entitlements

The mother’s superannuation has been accumulated over a period of time commencing prior to the date of the cohabitation. The father’s contribution to superannuation appears to have largely been made post separation when he obtained paid employment.
The mother’s superannuation entitlement arises as a result of her employment. She had an entitlement (although unquantified) at the date of commencement of the parties’ cohabitation in January 1995. Thereafter there was a period of two years in which the parties were separated and I accept the mother continued to contribute to her superannuation through her employment.
I assess the contributions to the parties’ superannuation to be in the same proportions as contributions to the marriage generally.
The assessment is 70% to the mother and 30% to the father.

Section 75(2) Considerations

The parties cohabited for between 10 and 11 years. They have two children aged 15 years and almost 12 years. The children live with the mother and will do so into the foreseeable future.
The mother is 47 years of age and in full time employment. The mother has an income of $1300 per week gross. She has a gambling addiction which she endeavours to resist with the aid of counselling. In the past her addiction has seen her lose significant amounts of money.
The mother is still working overtime with her employer. She averages three nights per week. She is home by 8:30pm.
The father is 42 years of age. He has a significant mental illness. That illness, if untreated, may result in the father finding it difficult to maintain employment. I consider that to be the case not as a consequence of any direct evidence from Dr Q but rather as a logical extension of her diagnosis. The matter which concerns me is that the father might have a delusion which compels him to act in a strange way at his place of employment and thus drive his employer to terminate his employment. He is at the moment still a part time or casual employee. The father also submitted that if I accepted the diagnosis of Dr Q then that would have implications in relation to his financial future.
The father currently earns somewhere between $614 and $650 per week gross. He is employed by K Company Pty Ltd. His description of his work duties suggest he works in the warehouse area of the company. He has been in this employment for 1 year and 8 months. His employment has grown from 3 days to 5 days per week. He proposes to graduate to middle management which would provide him with an income of between $60 000 and $80 000 per year.
The father gave evidence that he had developed expertise in share trading. He said he had concentrated on shares in oil producers. He would study world markets for some hours each day before making any trades. It seems he started with a loan of $30 000. The share portfolio in 2008 when liquidated was worth $91 593. This, it seems, predominantly represented 2 to 3 years of trading and then market forces. There was some trading in a share portfolio held by the mother in trust for S prior to 2003. No detail of the value of that fund in 2003 has been provided. It seems the father may have some capacity in this area. He told me in submissions he may take up share trading again with a friend.
Given the mother’s greater income it is to be expected that in the future she will accrue greater superannuation benefits than the father.
The determination I have made for the division of the parties assets, based upon assessment of contribution, will see the mother retain 70% or $100 636 worth of net assets and the father retain 30% or $43 129.
The determination I have made, based upon assessment of contributions to the parties’ superannuation, is that the mother is assessed as entitled to $99 996 of the parties’ superannuation and the father is entitled to $42 855.
When considering the father’s claim to have the mother’s gambling losses quantified and included as a notional asset in the balance sheet, I said I would take the losses into account under s 75(2). In relation to the mother’s gambling, I have determined that her losses were closer to $100 000 than the $40 000 estimated by her. Between December 2009 and the end of May 2010 the mother has lost $5000 gambling.
The father proposes that his relationship with Ms D will be a long term one. She is in part-time employment. She attends TAFE one day per week. She is also hoping to do more with her jewellery manufacturing. She currently has a market stall where she sells jewellery on weekends.
During the marriage an education fund was built up for S. It is difficult to know how much was in the fund at any particular time. The mother agrees she liquidated the fund. She said she used it to meet the mortgage. She also conceded that some may have been gambled. It is agreed that when liquidated the fund had a value of $18 408. The fund must have been contributed to from the mother’s income. The father said that he had included this fund in his calculation of loss of $107 000 by the mother through gambling. Given that I have already made my determination in relation to the estimate of the mother’s gambling losses I see no other role for an adjustment in relation to the use of S’s education fund by the mother. Further I consider that the cost of S’s future education will probably be predominantly met by the mother rather than the father.
From the date of final separation in October 2007 until September 2008 when the property was sold the father had occupation of the A property. There is no suggestion that he contributed to the mortgage on the property although he must have paid the utility charges.
The mother will retain the major responsibility for the care and support of the children into the future. The father has demonstrated a marked reluctance and or ability to contribute towards the cost of maintaining the children. It seems probable the mother will receive very little support from the father in the future to assist in the maintenance of the children.
I have been asked by the father to include as a notional add back to the balance sheet the loss incurred by the mother on the investment in the New Zealand property. I consider that there is nothing about the facts in this case which would see me depart from the view taken by the Full Court in Browne & Green. Had the mother been successful in her investment than the father would have been entitled to benefit from her investment whether he knew of her intention to invest or otherwise. There is no suggestion, in the evidence, that the investment was a hazardous one. It was an investment in real estate which clearly the mother thought would provide her with a good return. She had the view that the rental earned from the property would meet the financial commitment she had incurred to buy the property. I said I would take this loss into account at this point; however, I cannot see any ability to take this into account in any meaningful way. It was an unfortunate investment the consequence of which should not be held to be the mother’s sole responsibility.
I take into account that the mother has a credit card liability of $22 000. I take into account that the father has a credit card liability of $786.
The mother has borrowed the whole of the legal costs she has paid ($76 306). She borrowed the funds from the paternal grandparents. The mother says that the debt is to be re-paid. For reasons earlier set out I have not included this debt in the balance sheet. I do take it into account at this point.
The father sought to include as a balance sheet liability his debt for student loan and tertiary education fees of $68 291. These are debts which have been incurred by the father many years ago when he was studying at university. The repayment is not required until his income reaches a certain level. I take that liability into account here.
For some time during the marriage the father was treated for alcohol dependence. That appeared in medical records and suggested to be in about 2003. There is no evidence of the amount of money spent by the father on alcohol during the period of dependence. I consider it unlikely to be more than about $60 per week as that is all the father had available. In the absence of any such acceptable evidence I really cannot take this factor into account.
The orders to be made in relation to the children will see the children spending limited time into the future with the father if he is prepared to subject himself to treatment. If he does not do that then the children may not spend time with him until they are over 18 years of age. Whether the children spend day time only with the father or no time at all it will cast a large burden upon the mother.

Conclusion on s 75(2)

Considering and weighing all of the above matters I consider that a small adjustment is warranted in favour of the mother. I consider that adjustment to be 5%. I consider the adjustment should apply to both the asset pool and the parties’ superannuation.
There are many considerations which warrant adjustments in favour of each party. It is difficult to single out items which tip the balance without specifying all of the matters considered above. I would say however that I do see the ongoing financial support of the children by the mother to cast a particularly onerous burden upon the mother.

Overall Division of Assets

The above determination will see the mother receive 75% of the parties’ assets and the father receive 25%. The mother will retain 75% of the parties’ superannuation and the father will retain 25%.

Just and Equitable

The division of assets would see the mother receive $107 824 worth of net assets and the father receive $35 941. The mother will retain $107 138 in superannuation and the father $35 713.
In the circumstances of this case I determine that result to be just and equitable.

The Orders to be Made

The father has applied for a splitting order. The mother opposes such an order. My conclusion in relation to the division of superannuation is that the father has an entitlement to $35 713 of the joint pool of superannuation. Yet the superannuation currently standing in his name is only $3044. He therefore needs to receive a splitting order which provides him with a further $32 669.
If I was to decline to make a splitting order then I would need to make a further adjustment to the capital which the father is to receive from the division of the parties’ other assets. This would mean in practical terms providing him with a greater share of the cash fund in the balance sheet. In my view the father would have to receive a further $10 000 in order to do justice between the parties.
Reviewing therefore the consequence to the mother of either making a splitting order as sought by the father or refusing to make such an order and instead requiring a further payment to the father of $10 000 it seems to me that the course of action which would be the most just would be to make the splitting order. The principal reasons for that determination are as follows:
a)The mother will probably have to bear the bulk of the future cost of supporting the children financially. The period of greatest burden will probably fall upon her during the next five years. She needs to have all the cash reserves she can muster to see her through that time.
b)The mother is still relatively young. I consider she will have the opportunity to bolster her superannuation by applying her earnings at a later time when the children may no longer be a large strain on her finances.
c)On the father’s part I have real concerns about his ability to earn a large income in the future. That will mean that his contributions to superannuation will probably be relatively low. He would benefit from having a “jump start” to the accumulation of superannuation through the benefit of a splitting order made at this time.
d)I accept that the father may well benefit from an additional $10 000 in cash, however, he is the party who sought the splitting order.
The parties’ submissions dealt with this issue in a transitory manner. No submission of detail was made. No submission was made which outlined the merits of making or declining to make a splitting order.
The mother in her submission said that there was no evidence that a trustee of any fund was on notice of an application being made for a splitting order. That is true, however, this is a case in which the father has been self represented throughout the whole of the time the matter has been in my docket. The Act requires that the trustee be accorded procedural fairness. Section 90MZD(1)(a) provides:
(1) An order under this Part in relation to a superannuation interest may be expressed to bind the person who is the trustee of the eligible superannuation plan at the time when the order takes effect. However:
(a) in the case of a trustee who is not a secondary government trustee--the court cannot make such an order unless the trustee has been accorded procedural fairness in relation to the making of the order;

Given that an order cannot be made without giving the trustee of a relevant fund (in this case the Colonial First State) notice of the intended order and thereafter provide a period of time in which the trustee can raise objection to the proposal, the Court can make an order which would operate only after the trustee had been given notice and had thereafter not sought to be heard in relation to the proposed order. In practical terms the Court’s experience would show that it would be most unusual for the trustee of such a fund to raise an objection or wish to be heard on the matter.
I will make a splitting order.
I propose orders which will give effect to the following division.
The mother will receive:

Assets	($)
· Mother’s property in the Philippines	$2,035
· Mother’s household contents	$2,000
· Mother’s partial property settlement	$4,400
· Loan by mother to her brother	$2,000
· Gift by mother to her brother	$19,000
Liability
· Loan from Mrs W	$5,000
Net Assets retained:	$24,435
Cash Adjustment required:	$83,389
Net assets received:	$107,824

The father will receive:

Assets	($)
· Father’s partial property settlement	$8,500
· Father’s partial property settlement	$4,400
· Cash adjustment required:	$23,041
· Total Assets received	$35,941

The parties will receive funds from the controlled monies account in the amounts referred to in the table above. The fund is an interest bearing fund. I am not aware of the current balance in the fund so I will express the order to be made as a percentage of the fund so that it captures any interest earned since the hearing concluded.
The parties are to do all things necessary to cause the funds held in the controlled monies account to be paid as follows: 78.35% to the mother and 21.65% to the father.
The parties are to otherwise retain the assets standing in their sole name. Each party is to be responsible for any liability standing in their name.
Subject to the splitting order each party is to retain the balance of any superannuation standing in their own name.

I certify that the preceding six hundred and forty-eight (648) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 4 November 2010

[2010] FamCA 1024

15 October 2010

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Family Law

Equity & Trusts

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