HENLEY & HENLEY - [2012] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HENLEY & HENLEY

[2012] FMCAfam 303

FAMILY LAW – Children – disclosures eldest child – conduct of parties – shared care or limited time.

FAMILY LAW – Property – post separation contributions wife – husband’s capacity for work.

Family Law Act 1975, ss.4, 60B, 60B(2), 60CA, 61C, 60CC, 61DA, 75(2) and 79

Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Farnell & Farnell (1996) FLC 92-681
Re NHC & RCH (2004) FLC 93-204
Townsend and Townsend (1995) FLC 92-569
AJO v GRO (2005) FLC 93-218

Applicant:

MR HENLEY

Respondent:

MS HENLEY

File Number:

ADC 2142 of 2009

Judgment of:

Cole FM

Hearing dates:

11, 12 October 2010, 17 November 2010, 16 December 2010, 10 May 2011, 30 June 2011, 1 July 2011, 5 & 6 September 2011

Date of Last Submission:

16 September 2011

Delivered at:

Adelaide

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms H Tinning appearing on 11 and 12 October 2010 and Mr Henley in person thereafter

Solicitors for the Applicant:

Von Doussas

Counsel for the Respondent:

Ms A Horvat

Solicitors for the Respondent:

Denise Rieniets & Associates

Counsel for the Independent Children’s Lawyer

Mr B McQuade

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of SA

ORDERS

Children’s issues

That with effect from 5 April 2012, the following orders shall apply:

The wife have sole parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2007.
The children live with the wife.
The children spend time with the husband as follows:
(a)from the conclusion of school Friday until the commencement of school Monday each alternate weekend, the first such weekend to be 27 April 2012;
(b)from the conclusion of school Thursday, the first such Thursday to be 3 May 2012 until the commencement of school Friday each intervening week; and
(c)save as set out in these orders, for one-half of the school term holidays from the conclusion of school until 5.00pm on the middle Saturday of the term holidays.
Handovers for the purposes of the above time, shall occur with the responsible party collecting the children from and delivering them to school at the commencement and conclusion of each period of time.
Notwithstanding any other orders to the contrary, the children spend the following occasions with the parties:
(a)with the wife on Mother’s Day from 10.00am until 5.00pm;
(b)with the father on Father’s Day from 10.00am until 5.00pm;
(c)each alternate Easter from the conclusion of school on Thursday or 5.00pm until 5.00pm on Easter Saturday commencing in 2012; and
(d)every other Easter from 5.00pm, on Easter Saturday until 5.00pm on Easter Monday commencing in 2013
(e)with the husband:
(i)from 12.00 noon on 24 December 2012 until 12.00 noon on 25 December 2012 and each alternate year thereafter;
(ii)from 12.00 noon on 25 December until 12.00 noon on 26 December 2013 and each alternate year thereafter
(f)with the wife:
(i)from 12.00 noon on 25 December until 12.00 noon on 26 December 2012 and each alternate year thereafter;
(ii)from 12.00 noon on 24 December until 12.00 noon on 25 December 2013 and each alternate year thereafter
(g)on the children’s birthday:
(i)in the event the same falls on a school day then the parent who does not otherwise have the children in their care overnight on the evening of the birthday shall spend time with the children from 3.30pm until 6.00pm;
(ii)in the event the birthday falls on a public holiday, a weekend day or a non school day, then the parent who does not have the children overnight on the evening of the birthday shall spend time with the children from 2.00pm until 7.00pm unless the birthday falls on a day when there is ordinarily an afternoon handover then in such event the handover shall occur earlier at 2.00pm; and
(iii)at such other time as is agreed between the parties
The children spend one half of the Christmas school holidays with the husband as follows:
(a)with the husband for the duration of the first, third and fifth weeks of the holidays with the first week commencing at 5.00pm on the last Friday of school term until 5.00pm the following Friday;
(b)that during the 2013/2014 Christmas holidays and each alternate Christmas school holiday period thereafter the children shall spend time with the husband as follows:
(i)for the first half of the Christmas school holiday 2013/2014 and each alternate year thereafter with such time to commence at 5.00pm on the last Friday of the school term; and
(ii)for the second half of each intervening Christmas school holiday period with such time to conclude at 5.00pm on the last Friday of the school holidays.
Handovers shall occur at school or the childcare facility the child is attending (if a school day) or otherwise at the [N] Police Station.
The parties are restrained and an injunction is hereby granted restraining them from denigrating or criticising the other parent or in the presence of the children.
The parties utilise a Communication Book for the purposes of communicating any issues relevant to the children’s care, welfare or development.

Property settlement

The net proceeds from the sale of the former matrimonial home be disbursed as follows:
(a)in payment of the sum of $4,227 to the husband forthwith;
(b)in payment of the sum of $28,197.18 to the wife’s father;
(c)in payment of the debts due and owing in respect of the Westpac personal loan, ACCU Credit card, Capital Gains Tax upon the sale of the [P] property; and
(d)in payment of the remainder to the wife.
The husband transfer and assign the following:
(a)any interest he may have in the Holden Commodore in the wife’s possession to the wife forthwith; and
(b)any interest he may have in the wife’s superannuation benefit, bank accounts, furniture and chattels in the wife’s possession and vest in the wife absolutely.
Any interest the wife may have in the proceeds of the sale of the Holden Calais, the husband’s [omitted] collection, the furniture and chattels in the husband’s possession any remaining funds from the husband’s Workcover claim and the husband’s superannuation benefits vest in the husband absolutely.
The wife indemnify the husband and keep the husband indemnified in respect of the Westpac personal loan, ACCU Credit card, Capital Gains Tax that may be assessed upon the sale of [P], and the debt due and owing to the wife’s father.
Liberty to the parties to apply as to consequential orders.
The Independent Children’s Lawyer be discharged.
All applications be otherwise dismissed as finalised.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Cole delivered this day will for all publication and reporting purposes be referred to as Henley & Henley.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 2142 of 2009

MR HENLEY

Applicant

And

MS HENLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter are seeking orders in respect of their children and a division of the assets.
The children are [X] born [in] 2004 and [Y] born [in] 2007.
[X] will be eight this year and [Y] will be five. The children currently spend equal time with each parent.
The wife seeks orders that have the children live with her and spend one night per fortnight with the husband.
The husband seeks the current arrangements continue save that the children spend one week about with each parent, rather than the current alternating four day and three day arrangement.
The wife’s Application is supported by the Independent Children’s Lawyer.
In respect of the parties’ property, the wife seeks that the assets be divided such that she receives 60 per cent of the net value of the pool.
The husband initially sought a 60/40 division in his favour, however amended this in his closing submission to seek an equal division of the assets.
There is a dispute as to what is in the asset pool and what items should be added back.
I will deal with the children’s issues and then give consideration to the division of the matrimonial assets in the course of these reasons.

Background

The parties commenced cohabiting in December 1993. The husband at that time had five children from previous relationships namely, [name omitted] (aged 32 this year), [name omitted] (aged 26 this year), [A] and [B] (aged 24 this year) and [name omitted] (aged 22 this year). None of the children were residing with him.
In 1994, the wife alleges the husband broke her arm. The husband denies the allegation but concedes the wife was injured. The ambulance and hospital records corroborate the husband’s version of the events.
The wife, in addition, alleges a history of verbal abuse, coercion, threats and intimidation. The allegations are denied by the husband.
The wife, in 1996, commenced employment with [omitted]. She has stayed in that employment throughout the history of this matter.
The parties separated for a few months, effecting an informal property settlement, and then reconciled in late 2001 resuming co-habitation in the house purchased by the wife at [omitted].
The parties married [in] 2003. Their children were born in 2004 and 2007.
In March/April 2007 the husband injured his shoulder and wrist in a workplace injury. I will refer to his Workcover claim later.
The husband, through the course of his relationship, has been engaged in various occupations including [omitted]. He is currently taking some time out from his employment as a [omitted] pending the completion of these proceedings.
On 19 May 2009 the wife took the children and left the former matrimonial home.
On 2 June 2009 the wife commenced proceedings in this Court.
On 16 June 2009 orders were made pending further order that:
1.The parties have equal shared parental responsibility for the children.
2.The children live with the husband:
(a)for four nights each alternate week from 9.00am Saturday until 9.00am Wednesday, commencing 20 June 2009; and
(b)for three nights every other week from 5.00pm Sunday until 5.00pm Wednesday, commencing 28 June 2009.
3.The children live with the wife:
(a)for four nights each alternate week from 9.00am Wednesday until 5.00pm Sunday, commencing 24 June 2009; and
(b)for three nights every other week from 5.00pm Wednesday until 9.00am Sunday commencing 1 July 2009.
4.The children be delivered to the residence of the other party at the conclusion of each period referred to in paragraphs 2 and 3.
An order was also made by consent that the parties be restrained by injunction from taking the children to a psychologist or counsellor without the written consent of the other.
Following the Conciliation Conference, orders were made on 2 February 2010 listing the matter for trial on 15, 16 and 18 June 2010, and appointing an Independent Children’s Lawyer.
On 19 May 2010, upon noting the husband’s Workcover had not been determined amongst other things, the trial on 15 June 2010 was vacated and the matter listed for trial on 11 and 12 October 2010, it being suggested that further negotiations may reduce the estimate of three days hearing.
On 3 June 2010 the husband filed an Application seeking an injunction restraining the wife from distributing the proceeds of sale of the [P] property. Between the filing of the Application and the date of the matter coming before the Court, the wife effected settlement of the sale of the property by bringing the settlement date forward and subsequently distributed the proceeds prior to the Court date.
The trial commenced on 11 October 2010. Counsel appeared for the husband for the first two days, after which the husband was self- represented. The trial concluded on 16 September 2011.

Evidence

The wife relies on:
a)her Application filed 2 June 2009;
b)her Financial Statement filed 2 June 2009;
c)her Affidavit filed 1 July 2010;
d)her trial Affidavit filed 14 September 2010; and
e)her affidavit filed 10 May 2011.
The wife gave evidence and was cross examined.
The husband relies on:
a)his trial Affidavit filed 29 September 2010;
b)the Affidavit of Mr D filed 7 October 2010;
c)the evidence of Ms W, [X]’s teacher; and
d)the evidence of Mr K, the school Guidance Officer.
The husband, Ms W and Mr K gave evidence and were cross examined. Mr D did not give evidence.
The Independent Children’s Lawyer relied on the evidence of:
a)Ms B contained in her reports of 26 October 2009 and 19 July 2010; and
b)Dr F, the general practitioner whom the wife and children attended upon, in respect of the attendance upon her by [X].
Ms B and Dr F gave evidence and were cross-examined.
The wife filed an Application in a Case on 15 February 2012 seeking to suspend the husband’s time. The application arose from disclosures allegedly made by [X] about a Mr S who was purportedly residing with the husband.
The matter was resolved by agreement on 14 March 2012, all parties indicating they did not wish to re-open the case.

The family reports

The two reports did not support equal shared care. A reduction in the husband’s time was recommended and subsequently a further reduction to one night per fortnight. The recommended reduction warrants a discussion of the reports and the evidence in respect of the issues raised which I set out below.
In her report published 26 October 2009, Ms B recommended that:
1.The parties have equal shared parental responsibility.
2.The children reside with Ms Henley and spend alternate weekends from Thursday after school until Monday after school with Mr Henley with time with Mr Henley to increase to substantial and significant time when both children are attending school.
3.The children spend half of the school holidays, alternate Easters, alternate Christmases each alternate year from 10.00am Christmas Day until 10.00am Boxing Day every other year.
4.That handovers occur at a neutral place such as McDonald’s car park in [M] or as otherwise negotiated.
An updated report was requested and was subsequently published on 19 July 2010.
Ms B, in her second report, recommended that:
1.The wife have sole parental responsibility for the children.
2.The children reside with the wife.
3.The children spend a night each alternate week from the conclusion of school Friday until 4.00pm Saturday with Mr Henley.
4.Handovers occur at the children’s school or the [M] Children’s Contact Centre or [M] Police Station subject to the availability of the Contact Centre.
At the time of the first report the child [X] was five and a half and [Y] was aged two and a half. In her evaluation in the first report Ms B noted at paragraph 100 that:
“The children present as positively attached to both adults. The only remarkable difference was [Y] with Mr Henley where he repeatedly asked for his mother. He had not seen her for three days and was likely to have been anxious that she may leave without him. From observations [Y] and [X] indicated no hesitancy or fear with either parent and were spontaneous in their interaction with both. Mr Henley engaged well with the children who responded to his high levels of interaction. [Y] was assessed as slightly more closely attached to Ms Henley with no remarkable difference noted with [X].”
At paragraph 101 she noted that:
“The nature and quality of the parents’ relationship with the children prior to separation is in dispute. It is the report writer’s opinion that Ms Henley has provided the primary care role. She worked for three days a week and attended the office two days maintaining full time employment while caring for the children. On the two days Ms Henley attended the workplace the children went to childcare despite what appears to be the lengthy period of time Mr Henley was available to provide care due to unemployment, part time and being on Workcover. …”
At paragraph 103 she notes that:
“Ms Henley has made significant claims of ongoing severe emotional, psychological and physical abuse. South Australian Police reports are said to exist but were not made available to the report writer. Ms Henley’s presentation and her description of the abusive relationship were consistent with the report writer’s experience of survivors of domestic violence.”
Paragraph 104 continued:
“Mr Henley’s presentation is consistent to that of perpetrator of abuse. He made every effort to discredit Ms Henley throughout the assessment process whilst Ms Henley’s focus remained on the children’s best interests.”
Ms B follows on by saying at paragraphs 105 and 106 of the report:
“Families SA records appear to indicate that Mr Henley had a series of abusive relationships prior to meeting Ms Henley resulting in him fathering five children. It may be prudent for the Court to consider subpoenaing Families SA case notes to establish the links between Mr Henley’s alleged violence and the remarkable lack of parenting relationship with all five of his children, two of which were placed in State care.
Of considerable concern are two historical allegations made against Mr Henley of sexual assault of teenage girls in his care. Ms Henley’s sister went as far as laying charges while the second allegation noted on Families SA records appears to have not gone anywhere. While the events are historical and no criminal convictions were made, they do raise some doubt in the light of other historical records to Mr Henley’s credibility and character when assessing his suitability as a long term carer for children of such vulnerable ages.”
At paragraph 108 she notes:
“Of concern was that from [X]’s presentation she appeared to be overly aware of the significance of her comments to the report writer. This strongly suggests divided loyalties, triangulation and possibly undue pressure placed on her. Given her young age and level of maturity it is recommended the Court give limited weight to her statements.”
At paragraph 110 she notes:
“It is assessed Ms Henley’s claims of domestic violence have credibility based on both hers and Mr Henley’s presentation and past Families SA records, albeit historical. Ms Henley appears to have been the primary carer of the children and offers a more stable environment as evidenced by her stable work history. The parenting relationship is highly conflictual and a conciliatory approach to joint parenting is unlikely to succeed unless clear structures are put in place.
At the time of the second report [X] was aged six years and two months and [Y] was three years and two months.
In the second report published on 19 July 2010, Ms B noted in paragraph 101 that:
“New information available to the report writer from SAPOL indicates that Mr Henley as having a long, conflictual history with the authorities with numerous reports of violations of restraining orders against former partners, of making threats and using intimidation against others. At other times he has reported himself as victim in conflict against people known to him and strangers. It would appear that Mr Henley has a rich history of interpersonal conflict, some of which the report writer suspects is personality based.”
At paragraphs 102 and 103 she went on to state that:
“It is the report writer’s opinion that Ms Henley’s presentation of being a victim of an abusive relationship as well as Mr Henley’s presentation at both assessments is congruent with the report writer’s knowledge and experience of coercive, ongoing violence. In such cases intimidation, creating alternative reality, discrediting, using threats and bullying are common tools used to maintain power and control. It would appear that since separation Mr Henley has continued to maintain and escalate his behaviours in an effort to maintain control over Ms Henley while she attempts to start a new life. These dynamics are well documented in the literature as are the associated negative impacts on children who find themselves used as powerful pawns.
Examples such as, Mr Henley filming handovers with intention to produce evidence at trial demonstrates a greater focus on winning the litigation than the impact on the children. The report writer is unable to comment on any content however considers this to be a tactic of intimidation and not in the children’s best interests.

She notes at paragraph 108 that the observed interaction between the parties and the children has indicated little difference in regards to the parent/child quality. The report writer considers [X]’s level of compliance and engagement as being more of a learned survival tactic than any true indication of attachment.
At paragraph 72 of the report she had noted that observations of the children interacting with either parent were unremarkable in terms of any perceivable difference or quality in parent/child interactions. The children played in a comfortable manner and sought physical proximity with both parents. Rapport was good as was eye contact. The children’s level of play was slightly more animated when with Mr Henley.
At paragraphs 75 and 76 she notes as follows:
“[X] throughout the interview made repeated statements wanting to reside with Ms Henley and for the Court to be aware of this. [X] stated ‘Dad will get angry with me if I tell the Court, last time I saw you he got angry because I told you I wanted to live with Mummy and he said I should have told you I wanted to live with him’ but ‘I want to live with Mummy all the time and maybe spend one night with Daddy’.
[X] reported that Mr Henley had pressured her to say Ms Henley had a boyfriend who came into her bedroom. [X] indicated this was untrue and there was no boyfriend. Mr Henley had forced her to make these statements to her doctor and other members in the community.”
She notes in the report at paragraph 85 that on 21 June 2010 Mr Henley presented alone to Dr F to ask why tests were being conducted (in respect of the alleged enuresis) and alleged that [X] did not bed wet or wet during the day in his care or at school. He also reported Ms Henley had a new partner.
At paragraph 87 it is noted Dr F advised that Mr Henley attended upon Dr F with children present and advised [X] had something to say. [X] then disclosed that Ms Henley had a boyfriend who comes into her bedroom at night and takes Barbie’s clothes off and she wanted to reside with her father. She reports that Dr F then requested Mr Henley to leave the room of which he complied. [X] then told the doctor she was fearful of her father, disclosed that Ms Henley did not have a boyfriend. [X] stated “Don’t tell my Dad he told me to lie Mum doesn’t have a boyfriend”. [X] further stated that she wanted to reside with

Ms Henley and denied being hurt or touched inappropriately.
At paragraph 89 it is noted that Mr K, [N] School, Student Counsellor, reported interviewing [X] on 15 March 2010 after Mr Henley had expressed some concerns, about this disclosure about the Barbie Dolls. During this interview (prior to the interview with Dr F), [X] made the disclosure about her mother’s boyfriend called “[first name omitted]” who came into her room and played with her Barbie Dolls. On further questioning, Mr K assessed there was nothing untoward about this interaction and no statements were made by the child that indicated she was at any risk of harm due to Ms Henley’s association with this man. Mr K assessed notification to the Child Abuse Report Line not warranted.
At paragraph 90 Ms B notes that:
“Mr K was aware [X] had been wetting at school in term 1 and 2, 2010.”
At paragraph 91 of the report, Ms B notes:
“SAPOL subpoenaed records indicate that between 1991 and 2009 there were 65 police incidents/apprehension reports involving Mr Henley in some capacity or other.”
At paragraphs 92 and 93 she refers to other SAPOL incident reports that occurred between 1992 and 1996.
At paragraph 93 she refers to Mr Henley being charged with unlawful sexual intercourse with Ms Henley’s 14 year old sister. She notes that charges were later dropped.
At paragraph 94 she notes that from 1994 to 2000 Mr Henley reported 14 incidents to SAPOL where he considered himself a victim of assault.
At paragraph 95 she notes that Ms Henley reported the husband for violence in 1997 and on two occasions in 2001. She further notes

Ms Henley was charged with assault in 1996.
At paragraph 96 it is noted from 2000 to 2002 there was seven police incident reports involving Mr Henley with allegations of violence and intimidation against a neighbour and Ms Henley.
At paragraph 97 she notes the SAPOL records regarding the alleged police attendance in March/April 2010 were not available at that stage.
No convictions appear to be recorded. No specific dates are given for the incidents. The bulk of the events appear to have occurred prior to 1996. In other words, the evidence would appear to be historical and there is little that can be referred to with respect to events that have recently occurred. Nevertheless, it would appear that the number of the reports made has been a significant factor in Ms B’s consideration of this matter.
Ms B, at paragraph 101 of her second report, had noted Mr Henley’s history of involvement with the police and suggested this may be personality based.
The inspection of the subpoenaed SAPOL files occurred on 7 July 2010.
The interview with Mr Henley occurred on 6 July 2010, (there being a typographical error on the report which says 6 July 2009).
The viewing of the SAPOL files clearly had an impact on the report writer’s assessment of this matter. However these factors were not put to Mr Henley. Whilst the number of matters in which Mr Henley has had involvement with the police is cause for concern; I have difficulty accepting this as a foundation for any conclusions against Mr Henley, without it being put to him in an appropriate way.
Ms B in her first report had drawn the conclusion that Ms Henley’s presentation and description of the abusive relationship was consistent with the report writer’s experience of survivors of domestic violence. Ms B also concluded that Mr Henley’s presentation was consistent with that of a perpetrator.
Her second report confirmed this conclusion. It is apparent that Ms B found Mr Henley a difficult person and as someone who initially presented as keen to engage with the report writer but only on his terms.
She notes that he at times struggled to maintain his composure and as the session progressed increasingly became defensive, hostile and argumentative towards the report writer. She states that Mr Henley appeared to be trying to bully and intimidate the report writer.
She assesses his presentation at both assessments as congruent with her knowledge and experience of coercive ongoing violence. She does not address other options nor does she appear to address the impact that the litigation may have had on his demeanour towards the report writer including:
a)the initial supporting Affidavit of the wife that sought to rely on allegations of domestic violence from 1994 including the incident of the broken arm; and
b)the initial family report which drew adverse conclusions against him.
She relies on information provided by Families SA following a lengthy telephone consultation with Mr J, Social Worker on 15 October 2009.
The events canvassed in the conversation occurred in reference to the period of time prior to and just after the relationship between these parties commencing.
It is noted, amongst other things, that there are numerous child protection intakes involving domestic violence from 1991 to 1994 that are documented with Mr Henley as the alleged perpetrator. It is also noted there are numerous intakes pertaining to the impact of

Mr Henley’s violence on [name omitted], an older child of Ms H.
Ms B expressed concern that the twins, namely [A] and [B], had been placed into care and were not placed with Mr Henley, when their mother was unable to care for them. She noted that Mr Henley’s explanation for this, namely that there was some sort of conspiracy between the Department and the foster carers, was not credible.
She conceded, however, that Mr Henley made no concessions to her that he was not capable of caring for the children at the time.
She stated that there might have been other reasons why he was not considered as a viable parenting option, however, she said his explanation “did not assist me in having to come to any other conclusion that there must have been some issues at the time”.[1]
[1] Page 34, paragraph 35 of transcript 12 October 2010
The report writer, to her credit, had recommended the subpoenaing of the Families SA files. This was not done.
The issue was raised during the course of the trial. However, by this time, it was considered that the application was made too late, the information was voluminous in nature and historical.
In the course of cross-examination Ms B conceded she had obtained information regarding a series of allegations made by various parties to the Department, in respect of events that occurred on or before the period the parties commenced living together, and there was no capacity to assess the reliability of the allegations because the notifier was not known, the motivation of the people behind the allegations was not known and there were no findings in relation to the allegations from the Department.
The fact that Mr Henley was the subject of the allegations and had not been able to maintain a relationship with his five other children, save and except for the resumption of a relationship with two of them within the last 12 months, were, however, factors that clearly influenced

Ms B’s assessment of Mr Henley’s behaviour.
Ms B’s evidence was:
“It was my professional opinion that after the first assessment of Ms Henley and the information that I have gained in that first assessment, that her presentation was that – was congruent with that of a victim of domestic violence, and Mr Henley’s presentation was also congruent with that of a perpetrator of domestic violence. And that was based on my 25 years of experience working with families where there is domestic violence. So I drew on that experience, I drew on the assessment of both their presentations. I also drew on the Families SA information that I gained, that there had been past concerns raising Mr Henley’s behaviour, with past partners, so my assessment was that it was not just an isolated incident with

Ms Henley; there had been previous allegations and concerns raised regarding previous partners. So, based on the presentations that where made to me at the time, the Families SA information that I had, my assessment was that it was congruent that there had been coercive ongoing domestic violence in this relationship.”[2]
[2] Page 6, paragraph 40 of transcript of 11 October 2010
On the basis of that, Ms B accepted the wife’s allegations in respect of the violence that was alleged to have occurred during the period of the relationship. She questioned the husband regarding the wife’s allegations and he responded denying all allegations of violence throughout the relationship. She did not, however, put the husband’s version of events to the wife.
In addition, she did not address, for example, in respect of the broken arm incident in 1994, why Ms Henley was recorded as having told the ambulance officer that she had broken her arm in the course of having intimate relations with Mr Henley and why she subsequently advised the hospital staff in the same terms as to how the incident occurred. She also did not address how the allegation of the arm being broken deliberately by Mr Henley did not arise until these proceedings commenced in 2009.
I therefore have difficulty that a conclusion based on:
a)the presentation of the parties;
b)the information supplied by Families SA in a telephone conversation (who made no findings in respect of the numerous allegations); and
c)that information provided by SAPOL, although no charges were laid
can be drawn that Ms Henley is the victim and Mr Henley is the perpetrator of domestic violence.
This is not to say that there are significant concerns regarding the numerous contacts that Mr Henley has had with Families SA and SAPOL. I am uncomfortable with a conclusion being drawn and support for that conclusion being based on the untested allegations of notifiers which were not put to Mr Henley and from which no conclusions were drawn by the Police or the Department at the time.
I am also uncomfortable with the fact that a great deal of this information is historical, the bulk of it appearing to occur around the time of the parties commencing cohabitation or just prior to that date.
I do, however, accept from the evidence of Ms B that the principles of shared care such as child focused, business-like, parenting relationships including mutually respectful, dignified and safe communication where parents do not denigrate the other parent to the child do not apply in this instance.
I have also considered a number of concerns properly highlighted by the report writer regarding, amongst other things, the repeated disclosures of [X], the parties’ behaviour at handovers, the Barbie Doll incident and [X]’s enuresis which will be addressed when considering the evidence of each of the parties.
When considering Ms B’s recommendations, it is also of concern to me that whilst enquiries were made with the children’s teachers and the school guidance counsellor, no explanation is given for the fact that despite the finding by the report writer that the children are at risk of being exposed to coercive domestic violence and abuse, all external indicators at the school would appear to suggest that the children are progressing satisfactorily and their performance would appear to place them well within their age group.
Ms B was questioned about this by me during her evidence.
Her advice was that it was possible for the children to be doing well at school whilst subject to extreme circumstances at home. When asked how important their presentation and functioning at school was, Ms B when pressed suggested that it would amount to 60per cent of her assessment of their functioning.
When asked by Counsel for the Independent Children’s Lawyer what influenced her to change her recommendations she mentioned amongst other things:
a)the SAPOL information (that has been previously referred to);
b)the concerns raised regarding the escalation of conflict at handovers and the impact on the children (I will address this later);
c)[X] demonstrating her anxiety by wetting (and I will refer to that later);
d)the statements made to her by [X];
e)her conversation with Dr F (which I will refer to later).
[X], on the evidence before me, has been forthcoming in her comments to amongst others Dr F, Ms B and Ms W.
She has been able to express herself easily to people with whom she has infrequent or little contact.
She has not however through her behaviour or otherwise raised significant concerns with the people who see her daily, her school teacher (save for two conversations to which I will later refer) and to a lesser degree, the school counsellor. They report she is making satisfactory progress. It is this contrast that gives me cause for concern.

The law

The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i)     each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)    the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The husband seeks equal shared parental responsibility for the children whilst the wife seeks sole parental responsibility. This will be discussed in due course.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending that time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).

I will refer to these matters later in these Reasons.

Section 60CC primary considerations

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

Both parties concede there has been benefit to the children having a meaningful relationship with the other party.
The difficulty is the terms and conditions upon which that relationship is conducted.
The wife suggests that the risks of abuse arising from the husband’s contact with the children outweigh the need for the children to have frequent and regular contact with their father. It is her submission that any meaningful relationship will only prosper in restricted circumstances. The equal shared care arrangements she submits, should not continue.
Whilst I think there is weight in the wife’s submission that the arrangements for the shared care of the children should not continue, I have difficulty with her position that the husband’s time should now be restricted to one night per fortnight.
It was not foreseen when Ms B was cross examined that this trial would continue over the course of the next 12 months.
These children have now, through circumstances outside of their control, been in a shared care arrangement since July 2009. They have had significant time with their father. A change such as that sought by the wife would be significant.
In addition, there is little or no evidence as to how a meaningful relationship could prosper when restricted to one night per fortnight. The level of conflict between the parties and lack of communication would support a conclusion that it would not.
Furthermore, I am not convinced, for reasons which I will set out, that there are grounds for such a drastic reduction in the children’s time with their father. The evidence would, however, suggest there are significant issues with equal shared care and the children would be better served by having one base.

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

The issue of family violence was raised by the wife at the commencement of these proceedings. She referred in particular to an event that allegedly occurred in 1994 where she alleges the husband deliberately broke her arm. In paragraph 9 of the Affidavit filed on 2 June 2009, she says the husband told the ambulance crew and doctors she had fallen. She said nothing.
Following that event, the wife continued to reside with the husband, separating for a short period of time in 2001, resuming co-habitation with him and having two children with him prior to finally separating in 2009.
When questioned about the matter however, she did not dispute that when the incident occurred, she informed the ambulance officers that the arm was broken whilst she was having intimate relations with

Mr Henley.
She subsequently informed the nursing staff at the hospital of how the event occurred in similar terms.
It is not apparent that she complained to anyone about this incident until proceedings were instituted in this Court.
When questioned by the husband, Ms Henley referred to a number of further incidents that were not set out in her trial documents. When asked why this was not put in the Affidavit, she responded that there had been a number of incidents in the early stages of their relationship.
When questioned further, her response was it would be impossible to put them all in as there was a large amount over a large number of years. She went on to describe an incident not mentioned in the affidavit when the husband was violent to her and dragged her through the bushes when they were attending a race day. This was denied by Mr Henley.
An allegation that one partner has been violent to the other is a serious matter. In the course of proceedings, it should be properly set out in the affidavit of the complainant, enabling them to set out clearly their recollection of the event. It would also mean that the alleged perpetrator would be able to consider and properly respond to the allegation.
Whilst it can be difficult for victims of violence to talk about the event, they can at least take advantage of the opportunity to do so in the controlled environment of their solicitor’s rooms. That is a very different thing to telling their story for the first time under cross-examination.
Furthermore, if done in that manner, there can be no suggestion that the “victim” sought to ambush the other party. Due process would have been followed. That did not occur here and this is unfortunate.
Counsel for the Independent Children’s Lawyer and the wife submit I should find there is a need to protect the children from physical or psychological abuse. They refer to amongst other things:
a)the husband’s behaviour toward the wife;
b)the disclosures made by [X] and the reporting of these disclosures; and
c)the enuresis experienced by [X].
I have commented on the evidence in respect of the husband’s behaviour to the wife. I have noted with concern that Ms B in forming her conclusion, is significantly influenced by information received from sources such as SAPOL and Families SA. I have also noted her comments regarding the husband’s behaviour to her. Whilst the husband may not have interacted well with Ms B I am unable to accept that her conclusion is the only answer.
There is no dispute that there was a high level of interaction with the Police and Families SA by the husband prior to the relationship commencing.
Following the commencement of the relationship this became less and less to where there was little activity until the parties separated in 2009. Police were then called regarding allegations of inappropriate behaviour at a handover, but nothing as at the conclusion of the hearing had come of that.
Whilst Ms B may be right to comment on the husband’s involvement with SAPOL and Families SA; when the information is historical, there are no conclusive outcomes and there is little or no activity in recent years then I have difficulty accepting her conclusion.
The wife in failing to set out the allegations of violence and her reasons for not raising it before, particularly when the allegation is as serious as that concerning the events of 1994, causes me concern. I am not prepared to find the wife’s arm was deliberately broken in 1994 nor am I prepared to find there was a violent incident at the races during the parties’ marriage.
Mr Henley can be a person whose evidence at times was verbose. I accept that the wife’s response to this may be to shut down and retreat. In other words, whilst he may be difficult and may not be likeable, I am unable to find that he is as the wife says.
[X]’s disclosures are a matter for concern. This little girl has disclosed, amongst other things:
a)that her father got angry when she and her brother were in the bath and smashed a plastic jug (her mother, Ms W and Ms B);
b)that her father made her say her mother’s boyfriend was coming into her room at night and undressing her Barbie Dolls (Ms B, Dr F); and
c)that her father got angry with her after the first report (Ms B).
The disclosures themselves are discussed elsewhere. The husband says she was coached by the wife. The evidence does not support this.
The disclosures regarding the Barbie Dolls suggest the husband coached the child. That may be, however if the child was to be coached then one questions why the story was not more alarming. As Mr K the school counsellor concluded, there was nothing in it save that if there was a boyfriend, [X] may resent being displaced by him, the child having been sleeping in her mother’s bed at that time.
It is the number of disclosures and the fact that they in one way or another reflect on the husband that causes me concern.
It is clear from the evidence of Ms B, the wife and the husband that there is some cause for concern. Each party has taken the opportunity to complain to the police about the other’s actions.
Whether those concerns are elevated into a finding that there has been physical or psychological abuse or the children are at risk of being exposed to physical or psychological abuse, is another matter.
That is not to say there has not been inappropriate conduct. This can be addressed further in the course of these Reasons.

Section 60CC(3) additional considerations

(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

[Y], at the time of both reports being undertaken, was too young to express a view in respect of this matter. His reaction to the current arrangements furthermore, did not attract the scrutiny that was applied to [X].
[X], on the other hand, was 5 years and 6 months on the date of publication of the first report ([Y] being 2 years and 6 months).
[X] had commenced school in April 2009. She was interviewed on two occasions. Ms B reports that on the first interview she immediately indicated a preference to spending more time with Ms Henley and less time with Mr Henley. However, soon after, qualified her statements saying she wanted to spend time with both.
She also indicated briefly, on the second interview when she arrived with Mr Henley, a preference to spend more time with Ms Henley and then changed her mind.
At the time of the second report, [X] was aged 6 years and 2 months and [Y] was aged 3 years and 2 months.
[X] was interviewed jointly with [Y] on one occasion and separately on a second occasion.
Ms B reports she presented as anxious in that her comments were to be expressed only to the Magistrate and sought on numerous occasions, reassurance from Ms B as Mr Henley had been angry after her early interviews with the report writer from the October 2009 family report.
She made repeated statements of wanting to reside with Ms Henley and for the Court to be aware of this.
[X] told Ms B on the second report that she gets scared and feels sad a lot of the time. She wets herself at various locations including school, when with Ms Henley and when with Mr Henley.
[X] advised her that Mr Henley was frequently medium to very angry while Ms Henley only gets angry when she is naughty to her younger brother [Y].
Ms B reported that [X] was clear in her position of wanting to reside with Ms Henley and only spend some time with Mr Henley. Her presentation and statements were consistent throughout both interviews.
Her consistency over the course of the interviews is a factor that needs to be considered whilst taking into account her young age.

(b) the nature of the relationship of the children with:

(i) each of the children’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

The relationship of the children with their mother did not appear to be the subject of the same attention as that of the husband.
Mr Henley commenced these proceedings alleging mental health issues on the part of Ms Henley. There was no significant evidence introduced in respect of this matter.
The observed interaction in the family assessment reports indicate a strong and close attachment between the children and each parent.
The husband in his Application seeks an arrangement whereby the parties share the care of the children. Implicit in that Application is the fact that he does not have any significant concerns regarding the nature of the relationship of the children with the wife.
A great deal of time and attention, however, was focussed on the relationship between the two children and their father.
Ms B in particular supported the wife’s view that [X] is scared of her father. She puts forward the view that her observed interaction with her father is essentially a survival mechanism. This is corroborated in the second report of Ms B where she reports the wife’s view that [X] modifies her behaviour when in the presence of her father to ensure that there are no repercussions.
The wife also suggests that [X] has demonstrated the stress that she is under through wetting herself whilst in her presence and certainly at school. The difficulty with this allegation is it is not corroborated by the teachers.
This is corroborated by Ms B reporting [X]’s concerns that her comments may be reported to Mr Henley and “Dad would get angry at her”.
She reports [X] expressing fear at handovers and recalling on one occasion that Mr Henley slammed both doors on Ms Henley at the doorstep and stating “Dad was holding his bag to stop us from going to Mummy, I wanted Mum. I was afraid and really worried that me and [Y] would get hurt.”
Ms W, [X]’s teacher, when giving evidence reported that she had been [X]’s class teacher from reception in 2009 and grade 1 in 2010. She reported that she was quite happy with [X]’s progress. She had observed no difficulties in the relationship between [X] and her father. Her evidence when questioned by the husband was “when I have observed you with [X] she seems quite happy, she jumps all over the top of you as in a friendly sort of way”.[3]
[3] Page 8, Paragraph 25 of transcript of 17 November 2010
In respect of the allegation that [X] was wetting her pants at school,

Ms W gave evidence that Ms Henley has expressed concern about [X] wetting her pants at school. She said I would have answered her the same, that I have not been aware of it happening and would have advised to put some dry clothes, underwear in her bag as other parents do.
She did, however, note in her daily classroom notes a conversation she had with [X] following the parties’ separation, when she had been crying in the classroom. She asked [X] what was wrong and [X] said: “I am scared at Dad’s. He yelled at me and said ‘I am the Dad and not you’ because I told [Y] to move up in the bath. And he smashed the jug and it broke. He just had the handle in his hand. Then he got me out of the bath and dried me. If Dad brings me to school I want you to ring my Mum to take her home.’” She went on to say she discussed this with the counsellor and decided to monitor [X] to see if it happened again. She did not note nor did she recall any further incidents.
Further, in the course of her evidence, she reported a conversation she had with [X] when she asked her who she would prefer to live with. Her response was “Mum”. When asked did she say why she answered “because Dad sometimes yells”. When asked when she had that conversation with [X], she said it was yesterday. She confirmed the conversation arose out of a conversation they had had about a hair cut incident. This happened in the course of the class discussing hair and hair colour when [X] was asked by Ms W what was the story about getting your hair cut. Her answer was “Dad made me. He made me say that I wanted to.” The conversation occurred the day prior to

Ms W attending at Court in July 2010.
She later, in her evidence, said when she was talking about her hair cut I just asked her what else had happened, was there anything else that has happened. She said “He made me say Mum has a boyfriend but she doesn’t.” I asked why would Dad do that and she said “I don’t know”. Her words were “I don’t know but he did”.
Ms W later reported to Mr McQuade in the course of cross examination that at the time of talking about the hair cut [X] was not upset, she was not crying, she just stated the fact and stated how she felt. The child, at the date of hearing of the matter, had been in Ms W’s class for over one year.
Save for the incident arising from a conversation regarding a hair cut that [X] did not want to have; and the prior disclosure of Dad getting angry while [X] was in the bath, Ms W does not report any incidents which caused concern regarding [X]’s relationship with her father. In fact, the report would be the child is progressing well, displaying no signs that would warrant concern, and appears to have a good relationship with the husband.
Ms W’s observations, albeit in the context of a class of 29, occurred over a protracted period of time as opposed to the unfortunately short period of time that report writers get to spend with the children.
This is also over a period of time in which a child who has reported as having made a number of disclosures, does not appear to have confided any other concerns she may have to Ms W.
Furthermore, her discussions with the school counsellor, Mr K, and his observations of [X] and her father again do not appear to support a conclusion that this is a child that is scared of her father. It does not exclude a conclusion that her father may, when disciplining her, raise his voice in such a manner as to scare the child. It does not, however, support a conclusion that the child is continuously scared and is able to undertake a survival mechanism lasting over one year that would cloak her behaviour in such a manner as to avoid repercussions from her father.
Mr K, the school counsellor, gave evidence that he had cause to address issues about [X] on eight occasions, although he came into contact with her on two occasions, the remainder being contact with [X]’s parents.
He knew [X] and was familiar with her in the school and in the playground.
Mr K has been teaching for 30 years and has spent some 14 years as a school counsellor.
He reported that save for those two occasions that he had come into direct contact with [X], there had been no concerns raised that required his attention.
He noted that on 9 March he had a conversation with the husband where he recorded that:
“[X] had been bedwetting but there had been a lot of changes in her life.”
On 3 May he notes a conversation with the husband as follows:
“Wetting her pants at school. Mummy’s boyfriend keeps scaring me. Mum is not always there. [Mr Henley] says that he struggles to send [X] back.”
On 15 March he noted a conversation with [X] about her mother’s boyfriend coming to the room and undressing her dolls. He did not consider that she had been coached. He noted [X] was forthcoming and did not need prompting when telling her of the events.
He advised Mr Henley that her concerns may well be to do with the separation and he did not consider the matter warranted a report to the child abuse line.
He reported that his observations of the child with Mr Henley in and around the school did not raise any concerns. He reported similar observations of Mr Henley with the parties’ son [Y]. He noted one occasion where:
“[X] ran out – I was surprised that she didn’t bowl people over when she came up and ran straight to you and gave you a hug.”
Mr K is responsible for the support of a number of children. I find it difficult, however, in view of the conclusions reached by Ms B, to conclude that [X] is demonstrating survival behaviour whilst with her father.
There certainly appear to be some issues with respect to the relationship between [X] and her father. The disclosure that he made [X] talk about her mother’s boyfriend, the disclosure about the bathroom incident with the jug and the disclosure about the husband making her say she wanted a hair cut, are matters of some concern. Whether they are of such concern as to warrant a restriction of the husband’s time to one night per fortnight, however, is something that I am having difficulty with.

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

I have concerns about the ability of either party to undertake this task. Noting the history of this litigation and the efforts of the parties in the course of the litigation, I see little evidence of either party shifting their focus from the other to the children. The wife considers herself a victim of the husband’s coercive violence whilst the husband considers the wife to be manipulative and a liar. Their regard for each other would support a finding that an equal shared care arrangement is not at present workable. It would also be a factor against the reduction of the husband’s time to one night per fortnight.

(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person

The parties separated in 2009. Litigation commenced in June 2009. The children have been living in a shared arrangement since then. There is little or no sign of their parents’ hostility toward each other decreasing. Difficulties are encountered agreeing on the use of items such as a communication book. There is little to suggest that the parents are able to co-operatively engage in the business of parenting.
The children, pursuant to the changes proposed by the wife will get to spend less time with their father. Whilst I do not agree with the reduction sought, I accept the submission that in these circumstances the children will benefit from having one base.
They will have one person primarily responsible for them. The exposure of the children to the difficulty of having to move between the houses of their parents, and share time equally with them will be less.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect that child’s right to maintain personal relations and direct contact with both parents on a regular basis

The evidence is that the parties intend to remain residing in the [omitted] area.
The wife without notice flagged an intention to move to [omitted], some 20 minutes drive from [N]. There was no evidence to support this in the documents filed for trial. Some evidence was led about a block of land that she had purchased in [omitted] together with her intentions to build upon that property.
At present, however, the wife remains residing in [N] and the children remain attending the [N] School. I therefore do not propose to take that issue any further.

(f) the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

Ms Henley is engaged in full time employment at [omitted]. She works from home on Monday, Wednesday and Thursday working in the office on Tuesdays and Fridays between 9.00am and 2.30pm. She is able to drop the children off at school and collect them from school.
She resides in a rented two bedroom house situated at [N]. Her father is her next door neighbour and she remains in contact with her mother and sister who reside in the Adelaide southern suburbs.
Mr Henley resides in a three bedroom rental home in [N]. He is not engaged in full time employment having worked as a [omitted] working an average of six hours per week being one hour in the morning and one hour in the afternoon.
A number of concerns arose in the course of the evidence in this matter about his capacity to provide for the needs of the child including the emotional and intellectual needs. They included:
a)the allegation that he made his daughter lie to Mr K (the school counsellor), Dr F (the child’s general practitioner) and Ms B about the wife having a boyfriend and the boyfriend coming into her room at night to undress her Barbie Dolls;
b)his behaviour during handover sessions including the video taping of the handovers in such a manner that the children would be aware of his actions;
c)[X] crying at school over her father’s reaction to the children’s behaviour while they were having a bath; and
d)the number of disclosures made by [X] against Mr Henley.
The evidence in respect of the above matters would suggest that there were times when the husband’s conduct did not appear child focussed. The recording of the handovers and the assembling of people to witness the handovers for example, were done, the husband says, to ensure he would not be the subject of false allegations. His explanation fails to address the message it sent to the children and would suggest the focus on them was overridden by his focus on the litigation.
That is not to say that I do not have some concerns about the capacity of the wife. A great deal of her focus in this matter has been on historical information and she has not hesitated to dredge up events that occurred prior to her relationship with the husband which she must have been aware of either at the time of commencement of cohabitation or shortly thereafter.
It is notable that she initially proposed a shared care arrangement, however, her position then moved toward substantial time and now moves to follow the recommendation of the report writer.
I am not completely convinced by the wife’s evidence and note that she has been capable of taking matters into her own hands such as her efforts in respect of the settlement of the sale of the [P] home thereby making the husband’s application for the freezing of the proceeds of sale void.
Nevertheless, on the balance, I consider she would be better placed to provide the children with a home base.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant

The children are aged eight and five this year. Their parents separated in May 2009 and have been engaged in litigation since that time.
There is clearly a need for the conflict to end and the striving for the advantageous position to cease.

(h) if the child is an Aboriginal child …

Not relevant.

the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents

The husband concedes that he has, amongst other things, filmed handovers and called on neighbours and family to act as witnesses at handovers, to avoid any allegations or any adverse criticisms of his conduct. This behaviour subsequently ceased, however, the fact that it occurred and the likelihood that the children were aware of it is concerning.
The way he dealt with the alleged undressing of his daughter’s Barbie Doll also raises concerns. His evidence is that she raised this on a number of occasions. He initially received advice from Mr K. He then raised the matter in the communication book however the wife did not respond. He then pursued the matter in a series of SMS messages and an interview with Dr F and in the interview with Ms B.
Mr K advised that the matter did not warrant notification to the child abuse line. Mr Henley, however, did not appear to be ready to let the matter go or to seek assistance as to how he should address the matter in view of what he says amounted to repeated allegations of [X] being scared of the wife’s boyfriend.
Instead of taking the matter back to Mr K, he chose to consult Dr F and the counsellors at Anglicare. There is a concern that he was attempting to garner evidence as opposed to dealing with the issue that presented to him.
In addition, he maintained that [X] did not wet herself in his care. He then conceded in the course of examining Mr K and subsequently in the course of cross-examination by the Independent Children’s Lawyer that she had wet her pants whilst in his care at a playground. This would suggest that at the very least, he has been somewhat selective in his memory of events.
His view of [X]’s disclosures was and is that she has been coached by her mother. He does not canvas other options, his evidence being that the wife is a manipulative person and a liar. His position is that [X]’s disclosure, that he made her lie, can only on his evidence be explained by the wife’s actions.
In other words, if a problem presents for the children then the impression is that Mr Henley looks to the wife for the cause.
With respect to the wife, it is notable that in commencing these proceedings she chose in addition to her allegations of coercive violence, to rely upon a bank of historical information concerning the husband’s behaviour. In so doing the argument immediately became one about the parties and not the children.
It is notable, however, that the wife in the course of this relationship has been able to combine her parenting and work commitments. This included having the children attend daycare prior to the parties separating, the husband being on Workcover at the time.
Whilst like the husband she has a similar tendency to focus on the other parent as the cause of all issues, I consider she is more able to take in the wider picture when considering the needs of the children and her parental responsibilities.

(j) any family violence involving the child or a member of the child’s family

I have addressed the issues of family violence when considering the risks to the child of family violence or being exposed to it. A lot of attention was focussed on the alleged smashing of the plastic jug by

Mr Henley. I accept that the jug broke. I have difficulty, however, with the suggestion that he was able to smash a plastic jug.
I also accept in view of the evidence of Ms W, that Mr Henley became angry with the children. I note that [X] subsequently disclosed to

Ms W when she noticed [X] crying at school, that her father had got angry and smashed the jug. How a child who at the age of six defines smashing a jug is open to interpretation. Whilst I have some concerns, I consider the conclusions that I am asked to draw from amongst other things, the historical information that is many years old, and the presentation of the parties, to be a step too far.
There is no evidence that would support a conclusion that the wife would involve the children or a member of the children’s family in any family violence. The allegations about Mr Henley on the other hand are of greater concern. They are not enough, however, to conclude that he is violent.
I am not advised that there is any family violence order that applies to the child or a member of the child’s family.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Equal shared time requires, due to the very nature of the arrangement, a level of cooperation and communication that is not evident here. To allow the arrangement to continue would, I consider, raise the risk of further litigation. The children in this matter need a base, with one person being responsible for their upbringing. That person should for the reasons set out, be their mother.
Regardless of the allegations of coaching, I accept that [X] has made a number of disclosures. There is also the issue of the enuresis she was said to be experiencing in her mother’s care. I have already noted that neither her teacher nor the school counsellor noticed this as a matter for concern, although it is noted, by the counsellor, as having been raised by Mr Henley.
I am not convinced on the evidence before me that a shared care arrangement is working for these children for a number of reasons including the inability of the parents to put their differences aside to focus on the business of parenting. I would not support it continuing. This does not mean it should be reduced to the time recommended by Ms B. The children need a base but they still need the opportunity to spend time, albeit limited, with their father. I would therefore favour a version of the earlier recommendations of Ms B and make appropriate orders. I also would consider it appropriate that where possible, handovers should occur at school to minimise parental contact.

Parental responsibility

Section 61DA of the Family Law Act 1975 requires the Court to apply a presumption of equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the interests of the child for the parents to have equal shared parental responsibility.
I have noted the concerns regarding [X]’s disclosures amongst other things. I have also noted my concerns regarding those events where the husband has appeared to demonstrate a lack of focus on the needs of the children. I have noted the conflict and the inability of the parties to communicate. Equal shared parental responsibility requires a degree of co-operation. That is not evident here. I do not consider the application of the presumption of equal shared parental responsibility to be in the children’s best interests. I would therefore accept the submissions of the wife and the Independent Children’s Lawyer that the wife should have sole parental responsibility for these young children.

Property

In determining what orders should be made for the division of the matrimonial assets, I am required to take an approach that involves four inter-related steps, namely to:
a)identify and value the property, liabilities and financial resources of the parties at the date of the hearing (“the asset pool”);
b)identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) of the Family Law Act 1975 (“the Act”), and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“the contributions”);
c)identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) of the Act so far as they are relevant and determine the adjustment (if any) that should be made to the contributions-based entitlements the parties established at step two (“financial resources and needs”); and
d)consider the effect of these findings and determination and resolve what order is just and equitable in all the circumstances of the case (see Hickey & Hickey & Attorney for Commonwealth of Australia (Intervenor) (2003) FLC 93-143).
I will now consider these matters.

The asset pool

The wife submits that the assets and liabilities are comprised of the following:

Assets

Sale proceeds of [N] Property (in conveyancer’s trust account)

   $86,310.96

Household contents with husband

     $6,000.00

Husband’s [omitted] collection

     $7,000.00

Joint 2000 Holden Commodore Executive (with wife)

     $4,650.00

Husband’s 1990 Calais (proceeds of sale)

     $2,700.00

Husband’s Workcover payments

   $37,410.20

$144,071.16

Liabilities

Westpac personal loan as at 9 October 2010

       $243.07

ACCU Credit Card as at 6 September 2010

   $11,902.63

CGT upon sale of [P]

     $9,033.95

Debt to wife’s father re sale of [P]

   $28,197.18

   $49,376.83

Net Equity

   $94,694.33

Superannuation

Wife [C] (as at 30 June 2010)

   $34,526.44

Husband [S] (as at 30 June 2010)

     $7,912.39

Husband [H] (as at 7 July 2010)

     $1,513.02

Husband [A] (as at 30 June 2010)

        $540.72

   $44,492.57

The husband in his trial Affidavit did not specifically identify the final matrimonial asset pool.
It is apparent from his Affidavit and the evidence subsequently given at trial that he did not accept that:
a)the wife’s father had a 23 per cent interest in the [P] property; and
b)the credit card debts should be brought to account.
There is also an issue in respect of the amount claimed for the Workcover payment received.
The value of the [omitted] collection was agreed in the course of the trial and the evidence of the value of the remaining items was accepted, there being no serious challenge to the wife’s evidence.

[P] property

The property at [P], was purchased in the wife’s name.
The property was listed for sale by the wife without the husband’s knowledge or consent.
A Contract was signed for the purchase of the property for the sum of $135,000. The Contract was executed on 9 March 2010.
The husband became aware that the property was on the market for sale on 19 May 2010. An Affidavit was sworn in support of an Application for an injunction restraining the wife from disposing of or encumbering the proceeds of sale and filed with the Court on 3 June 2010. The Application was listed on 23 June 2010 at 10.00am.
Service of the documents was effected upon the wife’s solicitors.
It is a matter of some concern that having been made aware of the Application, the wife elected to proceed with the settlement of this matter in any event.
The issue is that whilst there may be some argument that proceeding with the settlement of the purchase of the property avoided penalties, the wife also elected to proceed with payment of debts that she says were due and owing from the proceeds of sale which included:
a)Personal loan   $30,200.00
b)Aussie Mastercard   $4,800.00
c)Westpac Mastercard   $4,000.00
d)Citigroup Credit card   $5,489.49
e)Bankwest Light Mastercard    $5,900.00
$50,389.49
Her actions in the face of an application to the Court do not reflect well on her.
The wife subsequently provided copies of the statements for the debts paid out, those copies being annexed to her affidavit filed on 30 June 2010. The debts were not challenged in any substantial way by the husband. The common theme being that the wife ran the finances and he was unaware of the accumulation of debt. His evidence did not seriously challenge that of the wife and I accept her evidence of this issue.
It is of note that the wife did not elect to payout the money due and owing, she says, to her father.
It is also of note that no Affidavit was sought from her father although there was an approach to have him provide evidence at the opening of the trial. That application was rejected, this issue having been before the Court for some months.
The husband acknowledges that the unit was purchased for the wife’s father, the purchase of the unit was organised by the wife, and that he was told that the father was able to put in a small amount of approximately $10,000.
He further acknowledges that he witnessed a Contract signed between the wife and her father agreeing that the father had an interest in the [P] property. He questions, however, whether or not the father was entitled to this as he is unaware of exactly how much he contributed toward the purchase price of the property.
The evidence of the wife is that the father withdrew an amount of approximately $17,600 from his superannuation fund in January 2003. That amount was used as a deposit and to pay the associated fees for the purchase of the property in February 2003. There is no evidence to suggest that the parties had the funds to meet any fees such as stamp duty. It is open to me and I accept that the wife’s father is the source of these funds.
The husband, having agreed that the wife’s father has an interest in the [P] property, now seeks to challenge that entitlement. I have some difficulty with this. There is no evidence produced by the husband to provide an alternative source for the money. There is a document witnessed by him. There is identification of the source of the funds for the wife’s father. I would accept on the balance that the debt is due and owing to the wife’s father.
The wife submits that the amount due and owing is calculated as follows:
Sale Price $135,000 x 23.69 per cent                   $31,981.50
Less expenses and costs of sale
         $6,941.15 x 23.69 per cent  $1,644.35
Less CGT $9,033.25 x 23.69 per cent                     $2,139.97
Total  $28,197.18
Whilst I have concerns regarding the evidence showing the manner in which the property was acquired, the manner in which it was sold and the nature of the agreement between the parties and the wife’s father, on the balance of probabilities I would on this issue accept the evidence of the wife over that of the husband and accept the wife’s submission that the amount is due and owing to her father.

Husband’s Workcover payments

The husband did not, in his trial Affidavit, refer to his Workcover payments. However, in the course of his evidence, he disclosed that in late November or early December 2009 he had received $22,335 from Workcover for his right shoulder injury.
He further disclosed that on or before 28 March 2011 he had received some $11,200 for his wrist injury. His lawyers had taken their legal fees from this latter amount and the husband had received $1,165.
The husband was directed to provide documents for inspection by the wife’s solicitors which showed the Workcover’s decision was dated 13 March 2009. The second payment was set out in Workcover’s decision dated 8 February 2010 awarding the husband $11,424 for the left wrist.
His Workcover solicitor signed the standard form of order on 3 December 2010.
This information was disclosed and the directions for provision of the documents subsequently made in the course of the husband’s cross examination on 10 May 2011.
The husband’s former solicitors had consistently provided submissions in open court that the husband’s Workcover case was ongoing. There are notations on the order of this Court made 19 May 2010 that the husband’s Workcover claim has yet to be determined and again on the orders of 9 August 2010 that “issues remain outstanding with respect to the valuation of the [omitted] collection and the husband’s Workcover claim”.
The husband’s evidence that he was unaware that he was obliged to keep the wife and the Court appraised of the status of his Workcover claim until it had all finished, particularly in the face of his obligations to disclose in his Financial Statements, Affidavits, through numerous interim hearings about discovery and disclosure, and two attempts at Conciliation Conferences, is not credible.
The wife seeks to bring to account the full amount of the Workcover funds. This is the sum of $25,986.20 referred to in the decision of the Tribunal of 13 March 2009 and the $11,424 referred to in the decision of the Tribunal of 8 February 2010.
This ignores the evidence that of the latter amount the husband only received $1,694.44.
Of the earlier amount, it is reasonable to assume that some funds would have been deducted for expenses incurred on behalf of the husband. I would therefore accept his evidence that he received the sum of $22,335.
This means that the amount that should be brought to account in respect of the Workcover payments received by the husband should be $22,335 plus $1,694.44, being $24,029.44.
The husband’s evidence in respect of what was done with these funds is less than satisfactory and I would accept that this amount should be added back in total to the asset pool, being a premature distribution of property.

Household Contents

There is no valuation of the furniture and chattels in the husband’s possession. There is evidence that the parties took some steps to divide the chattels, the husband stating that he had to use Workcover funds to buy replacement items. There is no evidence of the value of the chattels in the wife’s possession. I will therefore exclude the wife’s and the husband’s furniture and chattels.

The Pool

This, in effect, means that the asset pool is comprised of:

Assets

Sale proceeds of [N] Property

   $86,310.96

Household contents

excluded

Husband’s [omitted] collection

     $7,000.00

Joint 2000 Holden Commodore Executive (with wife)

     $4,650.00

Husband’s 1990 Calais (proceeds of sale)

     $2,700.00

Husband’s Workcover payments

   $24,029.44

$124,690.40

Liabilities

Westpac personal loan as at 9 October 2010

       $243.07

ACCU Credit Card as at 6 September 2010

   $11,902.63

CGT upon sale of [P]

     $9,033.95

Debt to wife’s father re sale of [P]

   $28,197.18

   $49,376.83

Net Equity

   $75,313.57

Superannuation

Wife [C] (as at 30 June 2010)

   $34,526.44

Husband [S] (as at 30 June 2010)

     $7,912.39

Husband [H] (as at 7 July 2010)

     $1,513.02

Husband [A] (as at 30 June 2010)

        $540.72

   $44,492.57

$119,806.14

Neither party suggests that I take this on an asset by asset basis and I would propose to take a global approach to a division of the assets.

Add backs

The wife seeks to have added back into the pool:

50 per cent of Council rates and ESL (overdue) on sale of former matrimonial home

     $3,029.00

50 per cent of overdue mortgage payments for former matrimonial home

     $8,000.00

50 per cent of latest bills for former matrimonial home and joint debt payments

       $933.20

50per cent of joint debts paid by wife

     $9,050.86

Wasted funds by husband on builder

     $3,050.00

   $24,063.06

Consideration by the Courts has been given to the issue of adding back items into the asset pool for some time. The decision has often arisen in the context of one or both parties of receiving joint funds to pay legal fees.
In Farnell & Farnell (1996) FLC 92-681 the husband withdrew $20,000 from a joint account and spent it on legal fees. The trial judge treated the $20,000 as a notional asset which he added back to the total property pool. The Full Court dismissed the husband’s appeal.
His Honour Justice Fogarty said at paragraph 83,068 that:
My strong impression from sitting on Appeals in a large number of property cases over the years is that the common or usual practice is that, unless parties themselves choose to approach it another way,
(a) the liability of the parties for costs is generally disregarded in the sense they are not treated as liabilities to be deducted in order to arrive at the net property figure;
(b) costs already paid are not generally added back as notional property unless the particular circumstances justify it (such as here);
(c)the circumstance that each party does have legal costs needs to be taken into account in a general way considering the overall impact of the orders on the parties;
(d)the circumstance that the parties have or have paid legal costs is a basic factor in determining, at the conclusion of the proceedings, whether an order for costs should be made within the parameters of section 117.
In Re NHC & RCH (2004) FLC 93-204 the Full Court summarised earlier Full Court authorities on the issue and said:
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
One of the issues to consider is whether it can be said there has been a premature distribution of a proportion of the matrimonial assets (Townsend and Townsend (1995) FLC 92-569 Nicholson CJ at 81,654) from funds that existed at separation. Consideration should be given to whether the funds have been applied for the benefit of that party only, rather than for the joint benefit of the parties AJO v GRO (2005) FLC 93-218.
The evidence led by the wife in respect of these payments made by her provides little assistance when the Court is being asked to treat this as a mathematical exercise and is not accepted. I am not prepared to treat these amounts as add backs. I am conscious of the relevant authorities that say add backs should be the exception rather than the rule and find that to be the case in this matter. However, I would in view of the evidence before me, give consideration to these matters when considering the contribution of the parties.

Contributions

The parties started with minimal assets and acquired the current pool through their joint endeavours. The wife was able to maintain her employment whilst the husband was not. Childcare was used whilst the wife attended her workplace. Each contributed as and when they could.
There is no evidence on which I can rely that would support a submission that either party had more by way of assets or debts at the commencement of cohabitation.
The parties were in a relationship for nearly 17 years save and except for a period of separation in 2001.
It is notable that the wife has been engaged in full time employment save for some short periods when she gave birth to the parties’ children, for most of the period of the relationship.
It is also noted that the husband has, throughout the relationship, been engaged in various jobs – the most recent being his [omitted] employment. The husband’s employment history was disrupted somewhat by the Workcover injury sustained and, to some degree, that is offset by bringing the amounts received for Workcover to account in the matrimonial asset pool.
What is significant, however, is that post separation whilst both parties shared the care of the children the wife continued to be the major financial contributor towards the maintenance and improvement of the parties’ assets. The husband was at best employed on a part-time basis and had little or no income on which he could rely.
The wife seeks to bring to account by way of an add back funds totalling some $24,000 being a combination of overdue Council rates on the former matrimonial home, overdue mortgage payments on the former matrimonial home and bills for the former matrimonial home and joint debt payments, other joint debts paid by the wife and other funds expended on a builder, which were either deducted from the proceeds of sale of the former matrimonial home or in the alternative paid by the wife.
The wife was not seriously challenged by the husband in respect of the amounts claimed. The additional funds paid by the wife represent an additional contribution by her to the conservation of the matrimonial assets.
In the circumstances, I consider it appropriate to allow a further 5 per cent in terms of the contributions such that the wife would receive 55 per cent and the husband would receive 45 per cent when considering the parties’ contributions to the acquisition, conservation and improvement of the matrimonial asset pool.

s.75(2) factors - financial resources and needs

The wife remains employed on a full-time basis working partly from home and partly from the office. She has been in this position for some 16 years and there is no suggestion that there will be any change in her circumstances.
The husband has sustained injuries for which he has received Workcover payments.
There was little or no evidence on which I could rely to suggest his capacity for future employment is in question. He is able to maintain his current job of [omitted] for some six hours per week.
There is evidence to support a conclusion that the wife has been able to continue in her employment as a [omitted] whilst the husband has had difficulty continuing in the same job.
The husband’s employment has to a significant degree relied on his ability to physically carry out the job for which he was retained. I am not convinced, with his skills, that he would be able to obtain a secure employment as easily as the wife. Particularly in view of his age, the Workcover history and the fact that he has now not been in full time employment for some time.
The husband was born [in] 1961 and is aged 51 this year. The wife was born [in] 1973 and is aged 38 this year.
Save and except for the husband’s Workcover injuries, there is no evidence to suggest that either party has any significant health issues.
Pursuant to the orders that I will make, the wife will have the primary care of the children. Neither party will have the responsibility to support any other person.
The commitments of the parties necessary to enable them to support themselves are set out in their financial circumstances.
The husband may be eligible for a pension subject to him satisfying Centrelink’s requirements.
The evidence of both parties is that finances were difficult throughout the course of their relationship. I have no doubt, on the current evidence before me that this will continue to be the case. The maintenance of a standard of living that in all the circumstances is reasonable is therefore something that both parties will struggle with.
The duration of the marriage has not, on the evidence before me, affected the earning capacity of either party.
The wife wishes to continue in her role as a parent and will require some financial support. It is unlikely that there will be a significant amount of financial support forthcoming from the husband based on his current circumstances. It follows that the ability of the husband to obtain full-time work and receive a similar income is questionable.
In the circumstances, I would make a 5 per cent adjustment of the division of the assets in favour of the wife.

Are the orders just and equitable?

Pursuant to the orders that had been made, the wife will have the primary care of the children. It is unlikely that she will be able to obtain significant financial assistance from the husband.
The husband has a record of employment in relatively low skilled jobs. His ability to obtain an income to support himself and contribute financially to the children is in question.
Pursuant to the orders that I would make the wife would receive some 60 per cent of the net value of the asset pool. If the superannuation is to be included as part of the global assessment, the net value of the asset pool is $119,806.14.
The wife is to receive 60 per cent or $71,883.68.
The wife has in her possession
[C] superannuation policy   $34,526.44
the Holden Commodore worth  $4,650.00
Total  $39,176.44
This means that the wife would receive some $32,707.24 from the sale proceeds of the [N] property.
The husband would receive 40 per cent of the net value of the matrimonial asset pool, namely $47,922.46.
The husband has or has had in his possession the following:
Workcover payments  $24,029.44
[collection omitted]  $7,000.00
Proceeds of motor vehicle  $2,700.00
Husband’s [S] superannuation  $7,912.39
Husband’s [H] superannuation  $1,513.02
Husband’s [A]       $540.72
$43,695.57
This would mean that the husband would receive $4,226.88 from the proceeds of sale, which I would round to $4,227.00.
The proceeds of sale namely $86,310.96 would be disbursed as follows in payment of:
a)$4,227 to the husband;
b)$28,197.15 to the wife’s father;
c)$243.07 Westpac Loan;
d)$9,033.05 CGT;
e)$11,902.63 ACCU Credit Card
f)the remainder, $32,708.03, to be paid to the wife
For the reasons set out above I consider that the orders are just and equitable and would make no further adjustment.

Conclusion

The continuation of an equal shared care arrangement is not supported by the evidence. On the evidence, the children should be based with the wife and spend frequent time with their father. That should commence following the conclusion of the April school holidays.
The wife is unlikely, on the current evidence, to receive financial support from the husband. The evidence would support the wife receiving 60 per cent of the net value of the asset pool.
I make orders as set out at the commencement of these Reasons.

I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of Cole FM

Date: 4 April 2012

Assets
Sale proceeds of [N] Property (in conveyancer’s trust account)	$86,310.96
Household contents with husband	$6,000.00
Husband’s [omitted] collection	$7,000.00
Joint 2000 Holden Commodore Executive (with wife)	$4,650.00
Husband’s 1990 Calais (proceeds of sale)	$2,700.00
Husband’s Workcover payments	$37,410.20
$144,071.16
Liabilities
Westpac personal loan as at 9 October 2010	$243.07
ACCU Credit Card as at 6 September 2010	$11,902.63
CGT upon sale of [P]	$9,033.95
Debt to wife’s father re sale of [P]	$28,197.18
$49,376.83
Net Equity	$94,694.33
Superannuation
Wife [C] (as at 30 June 2010)	$34,526.44
Husband [S] (as at 30 June 2010)	$7,912.39
Husband [H] (as at 7 July 2010)	$1,513.02
Husband [A] (as at 30 June 2010)	$540.72
$44,492.57

Assets
Sale proceeds of [N] Property	$86,310.96
Household contents	excluded
Husband’s [omitted] collection	$7,000.00
Joint 2000 Holden Commodore Executive (with wife)	$4,650.00
Husband’s 1990 Calais (proceeds of sale)	$2,700.00
Husband’s Workcover payments	$24,029.44
$124,690.40
Liabilities
Westpac personal loan as at 9 October 2010	$243.07
ACCU Credit Card as at 6 September 2010	$11,902.63
CGT upon sale of [P]	$9,033.95
Debt to wife’s father re sale of [P]	$28,197.18
$49,376.83
Net Equity	$75,313.57
Superannuation
Wife [C] (as at 30 June 2010)	$34,526.44
Husband [S] (as at 30 June 2010)	$7,912.39
Husband [H] (as at 7 July 2010)	$1,513.02
Husband [A] (as at 30 June 2010)	$540.72
$44,492.57 $119,806.14

50 per cent of Council rates and ESL (overdue) on sale of former matrimonial home	$3,029.00
50 per cent of overdue mortgage payments for former matrimonial home	$8,000.00
50 per cent of latest bills for former matrimonial home and joint debt payments	$933.20
50per cent of joint debts paid by wife	$9,050.86
Wasted funds by husband on builder	$3,050.00
$24,063.06