HUTLEY & HUTLEY

FAMILY COURT OF AUSTRALIA

HUTLEY & HUTLEY

[2012] FamCA 679

FAMILY LAW – CHILDREN – Parental Responsibility – allocation of equal shared parental responsibility in circumstances where the presumption did not apply – where allocation of sole parental responsibility to the mother would exacerbate the ongoing conflict between the parties and its adverse affect on the children – where allegations of the family violence and abuse were exaggerated by the mother and minimised by the father – where both children demonstrated regressive behaviours due to exposure to parental conflict.

FAMILY LAW – CHILDREN – where there was no dispute that the children live with the mother – where the Court ordered the children spend time with their father on alternate weekends during school terms and for block periods during school holidays – where the father’s work commitments made it impracticable and not in the children’s best interests for the children to spend more time with him.

FAMILY LAW – CHILDREN – injunctions – where there was no injunction made restraining the father from drinking in the presence of the children despite an interim injunction to that effect – where injunctions were made restraining parents from causing or permitting the children’s exposure to denigration of either of them – where injunctions were made restraining the parents from using corporal punishment on the children.

FAMILY LAW – PROPERTY – Contributions – where the wife’s contributions were assessed at thirty seven and a half (37.5) per cent and the husband’s assessed at sixty two and a half (62.5) per cent – where the wife’s submissions that her non-financial contributions should be given more weight due to the husband’s aggressive conduct towards her were rejected by the Court – Marriage of Kennon (1997) 22 Fam LR 1 applied – where the husband had contributed a significant lump in tortious damages close to the date of separation – where an adjustment of ten (10) per cent was made in favour of the wife by agreement between the parties.

Crimes Act 1900 (NSW) s 61AA
Family Law Act 1975 (Cth)

Aleksovski & Aleksovski (1996) FLC 92-705
Goode & Goode (2006) FLC 93-286
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003)
Marriage of Coghlan (2005) 33 Fam LR 414
Marriage of Doherty (1995) 20 Fam LR 137
Marriage of Kennon (1997) 22 Fam LR 1
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Hutley

RESPONDENT:

Mr Hutley

INDEPENDENT CHILDREN’S LAWYER:

Peter Hamilton & Associates

FILE NUMBER:

NCC

1535

2011

DATE DELIVERED:

16 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

30 and 31 July 2012 & 1 and 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms V. Carty

SOLICITOR FOR THE APPLICANT:

Mason Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D. Blackah

SOLICITOR FOR THE RESPONDENT:

Ashlaw & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr M. Weightman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Hamilton & Associates

Orders

Parenting Orders

All former parenting orders relating to the children T, born … February 2003, and R, born … August 2005, are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure the children spend time with the father, unless otherwise agreed:
(a)During NSW public school terms, each alternate weekend, commencing at the conclusion of school on the first Friday of each school term and concluding at the commencement of school the following Monday, or Tuesday if Monday is a public holiday;
(b)During NSW public school holidays, for the first half of such holidays in even numbered years and the second half of such holidays in odd numbered years; and
(c)On Father’s Day from 9.00 am until 5.00 pm if not otherwise spending time with the father.
For the purposes of implementation of Order 4 hereof, the NSW public school holidays are deemed to commence at the conclusion of school on the last day of term, the holidays are deemed to end at noon on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.
Order 4 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)On Mother’s Day from 9.00 am until 5.00 pm.
For the purposes of implementing Orders 4-6 hereof:
(a)The father will collect the children from and return the children to school, or if the changeover does not occur on a school day;
(b)The parties shall cause the children to be exchanged at the nominated time at the J Shopping Centre.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Tuesday and Thursday when the children are living with the mother, between 6.30 pm and 7.00 pm, and for that purpose the mother shall ensure establishment of the telephone connection between the children and the father on the telephone number provided to her by the father;
(b)The mother each Saturday and Wednesday when the children are spending time with the father, between 6.30 pm and 7.00 pm, and for that purpose the father shall ensure establishment of the telephone connection between the children and the mother on the telephone number provided to him by the mother; and
(c)The parent with whom the children are not then staying, on the children’s birthdays, between 6.30 pm and 7.00 pm, and for that purpose the parent with whom the children are staying shall ensure establishment of the telephone connection between the children and the other parent on the telephone number provided by that other parent.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The father shall forthwith enrol himself to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.
The mother shall present the children to the Independent Children’s Lawyer within 7 days hereof for the purpose of the Independent Children’s Lawyer explaining these orders to the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon compliance with Orders 12 and 13 hereof or the expiration of any applicable appeal period, whichever is the later.

Property Settlement Orders

The parties shall do all such acts and things and sign all such documents as may be necessary to forthwith list the real property and improvements comprised in Lot …, being the property more commonly known as A Street, Central Coast town D, NSW (“the property”), for sale by private treaty.
For the purposes of implementing Order 16 hereof:
(a)The listing agent shall be as agreed between the parties, and in default of agreement, with the agent chosen by ballot from the respective choices of the parties;
(b)The listing price for the property shall be as agreed between the parties, and in default of agreement, the price nominated by the listing agent;
(c)In the event of the property not being sold within 3 months from the date of its listing for sale then it shall be put to sale by public auction on the following terms:
i)The auctioneer shall be as agreed between the parties, and in default of agreement, the auctioneer chosen by ballot from the respective choices of the parties;
ii)The auction shall take place within 6 weeks of the deadline date for sale by private treaty;
iii)The reserve price shall be as agreed between the parties, and in default of agreement, the reserve price nominated by the auctioneer;

(d)In the event that the property is not sold by auction, or private negotiation within a further 7 days, then it shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise upon the same terms and conditions as applied to the first auction.

Upon completion of the sale of the property pursuant to Orders 16 and 17 hereof, the proceeds of sale shall be applied as follows:
(a)Firstly, to pay all costs, commissions, and expenses of the sale, and to pay any Council and water rates and maintenance levies outstanding in respect of the property;
(b)Secondly, to discharge any encumbrance registered over or affecting the property;
(c)Thirdly, to pay $60,508 to the mother’s solicitors on behalf of the mother;
(d)Fourthly, to pay 47.5 per cent of the balance then remaining to the mother’s solicitors on behalf of the mother; and
(e)Lastly, to pay the balance then remaining to the father’s solicitors on behalf of the father.
The mother is declared the sole legal and beneficial owner (as between the parties) of, and the father shall execute all such documents as may be necessary to transfer to the mother all legal and equitable title in, the following items of property:
(a)The Toyota … vehicle; and
(b)The camper trailer.
The father is declared the sole legal and beneficial owner (as between the parties) of:
(a)       The wine collection;
(b)       The tools and miscellaneous equipment in his possession;
(c)       The antique buffet and hutch, table and chairs; and
(d)The gym equipment in the mother’s possession.
Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant;
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

Miscellaneous Orders

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act.
Any and all outstanding applications are dismissed.
Costs are reserved for 28 days.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1535 of 2011

Ms Hutley

Applicant

And

Mr Hutley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings have unfortunately encountered real difficulty in subjugating their own interests to those of their two young children. Their dispute with one another has figured more prominently in their thoughts than the welfare of their children.
The children, who have been extensively exposed to the parties’ inter-personal conflict, have suffered miserably. The pressure exerted upon them has been immense and the emotional torment they have both experienced has caused them to act aggressively to other children and adults and, despite loving both parties dearly, to divide their loyalties.
Even more disturbing than the parties’ causation of emotional harm to their children was their apparent inability to unconditionally commit to rectification of the situation when confronted with the problem and its cause. The parties are both intelligent, but neither willingly accepted responsibility, preferring to blame the other and absolve themselves.
Despite the parties’ fixation upon their disagreement over a host of historical factual issues, the principal issue ultimately motivating the Court’s determination of parenting orders is the need to protect the children from further exposure to the parties’ antipathy.
Although the proceedings related principally to parenting orders, dispute remained about the adjustment of the parties’ very modest property interests. These reasons deal with both aspects of the litigation.

Background

The parties met in 1997 and began their cohabitation in the Riverina area in 1998.[1]
[1] Mother’s second affidavit, paras 39-40; Father’s affidavit, paras 79-80
They married in July 2000 and separated on 12 August 2010.[2]
[2] Mother’s first affidavit, paras 2, 52
The parties have two children. They were born in February 2003 and August 2005 and are now aged nine and seven years respectively.[3]
[3] Mother’s first affidavit, para 3
The mother’s employment in the Riverina district afforded her the right to breed livestock, from which she derived capital sums that were contributed towards the purchase of real property by the parties.[4]
[4] Mother’s second affidavit, paras 41-44, 52
In 2006 the father was injured in a motor cycle accident for which he was later compensated in 2009 with a payment of damages in the sum of nearly $206,000.[5] That money was applied towards capital purchases, including the acquisition of a parcel of real property at Central Coast town D as an investment, and payment of expenses for the benefit of the family.[6]
[5] Mother’s second affidavit, paras 47-50
[6] Mother’s second affidavit, paras 54-56
Throughout the relationship both parties undertook paid employment, performed household duties, and provided care and supervision to their children.
Upon final separation in August 2010 the husband vacated the rented family home in Newcastle and rented separate accommodation in the Hunter Valley closer to his employment.[7] The mother remains living with the children in the former matrimonial home and the father has since moved back to Newcastle into alternate rented accommodation with his new partner closer to the former matrimonial home.
[7] Mother’s second affidavit, paras 58
The mother commenced these proceedings in June 2011 and interim parenting orders were made with the consent of the parties on 13 July 2011, providing for the children to live with the mother and spend time each alternate Saturday with the father. The father was also restrained from consuming alcohol at and about the time spent by the children with him.
Those orders were varied with the parties’ agreement several months later on 31 October 2011 when the children’s time with the father was expanded to encompass each alternate weekend, including overnight on the Saturday night. The restraint upon the father’s consumption of alcohol was maintained. Additionally, the parties were each restrained from inflicting corporal punishment upon the children and from allowing the children to be exposed to denigration of the parties. Those are the interim orders that still prevail.

Proposals and primary evidence of the mother

The mother began the trial pressing for the orders set out within her Further Amended Initiating Application filed on 7 March 2012, but later abandoned those orders. Instead, she tendered a minute of proposed orders at the conclusion of the evidence,[8] and then later adopted in preference some of the parenting orders proposed by the Independent Children’s Lawyer.
[8] Exhibit M8
In respect of parenting orders the mother generally proposed that she have sole parental responsibility for the children and that the children live with her. She further proposed that the time spent by the children with the father encompass alternate weekends and periods during school holidays, but that the duration of such time be restricted until the youngest child begins secondary school. The mother also proposed certain injunctions, including a permanent embargo upon the father consuming alcohol when the children were with him.
In respect of property adjustment orders, the mother proposed she receive the bulk of the sale proceeds realised on the sale of real property at town D, the division of personalty, and superannuation splitting orders. The idea of her proposal was to effect a division of the matrimonial pool so as to leave her with 50 per cent of it.
In support of her proposals the mother relied upon:
a)Her affidavit filed on 15 June 2012;
b)Her affidavit filed on 23 March 2012;
c)Her financial statement filed on 15 June 2012; and
d)The affidavit of her sister, Ms C, filed on 23 March 2012.

Proposals and primary evidence of the father

The father pressed for the orders set out within his Amended Response filed on 9 March 2012.
In relation to the children, he proposed that the parties have equal shared parental responsibility for them, that they live with the mother, and that they spend substantial and significant time with him. According to his proposal the children would spend time with him for five nights per fortnight, half of all school holidays, and on other special occasions.
As to property adjustment orders, the father proposed the sale of the D property, division of the sale proceeds substantially in his favour, and the mother’s surrender of various items of personalty to him. He asserted he should receive 70 per cent of the matrimonial pool.
In support of his proposals the father relied upon:
a)His affidavit filed on 27 July 2012;
b)His financial statement filed on 27 July 2012; and
c)The affidavit of his partner, Ms L, filed on 27 July 2012.

Additional evidence

The parties and the Independent Children’s Lawyer also relied upon evidence provided to the Court by the Family Consultant and a single expert psychiatrist.
The evidence of the Family Consultant was contained within an affidavit affirmed on 14 September 2011 annexing her initial Assessment and her subsequent affidavit affirmed on 9 February 2012 annexing her Family Report. The Family Consultant was cross-examined on that evidence.
Dr B, psychiatrist, was appointed as a single expert witness at the request of the parties at an early stage of the proceedings.[9] The single expert subsequently provided two reports to the Court, dated 17 October 2011[10] and 15 December 2011.[11] Although the parties and Independent Children’s Lawyer initially informed the Court the single expert was not required for cross-examination,[12] the parties changed their minds and the single expert was cross-examined on the contents of his reports.
[9] Consent orders made on 13 July 2011
[10] Exhibit C
[11] Exhibit D
[12] Notation A made 21 February 2012; Notation B made 2 April 2012

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer refrained from making any proposal as to parenting orders at the commencement of the trial.

Just prior to the commencement of final submissions the Independent Children’s Lawyer tendered a minute of the orders he proposed.[13]
[13] Exhibit ICL3
The Independent Children’s Lawyer supported the father’s proposal for the parties to have equal shared parental responsibility. It was common ground the children should live with the mother.
In terms of the children spending time with the father, the Independent Children’s Lawyer considered that the existing interim arrangement should continue until the father completed the post-separation parenting program he was ordered in October 2011 to undertake. Upon successful completion of that program, the Independent Children’s Lawyer proposed the children spend time with the father each alternate weekend from after school on Friday until the commencement of school on the following Monday, together with tranches of time in school holiday periods and on other special occasions.

Parenting orders

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”), in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations (s 60CC(2))

It was common ground that the children enjoy close and loving relationships with both parties. The children certainly derive benefit from those meaningful relationships and there was no genuine debate about the consequent need for orders to ensure that situation continues.
The parties’ cases were targeted more specifically to issues of relevance under s 60CC(2)(b) of the Act. Considerable evidence was adduced concerning the need to protect the children from harm they may suffer through exposure or subjection to abuse or family violence. The parties made reciprocal allegations of both abuse and family violence.
Although the mother conceded the father had never actually hit her,[14] she adduced evidence and told the Family Consultant of aggressive and intimidating behaviour committed pervasively by the father towards her over the entirety of their relationship.
[14] Mother’s first affidavit, para 126; Family Report, par 21
The mother gave evidence of discrete incidents of hostility in 1999, 2002, 2003, 2005, 2009 and 2010 prior to their separation,[15] but it is necessary to keep that evidence in context. The incidents, while bitter, were intermittent and, as the mother eventually conceded in cross-examination, many are best categorised as heated arguments in which each party was a willing participant. The mother agreed she needed to accept some responsibility for the parties’ arguments. In fact, she admitted having told the children’s psychologist that she had been a “willing and active participant” in the arguments witnessed by the children and she made similar admissions to the Family Consultant.[16]
[15] Mother’s first affidavit, paras 4-40
[16] Children and Parents Issues Assessment, page 5; Family Report, para 37
The mother agreed with the evidence of the father about the various issues over which they argued during their relationship.[17] Clearly, they both had different perspectives, which was a constant source of tension between them. They were apparently unable to discuss those issues without rancour.
[17] Father’s affidavit, para 40
The last altercation between the parties occurred on 27 November 2010, shortly after their marital separation, and is most likely attributable to the realisation their marriage was beyond salvation. The mother said it was the worst incident of violent behaviour between them.[18] On that day the mother voluntarily visited the father’s home with the children so the parties could attend a social function together while the children were minded. Unfortunately, later in the evening the parties argued, agreed their marriage was at an end, and were then involved in a scuffle. The police were summoned. Although there is marked disparity in the parties’ versions of the event, the father was charged and later found guilty of assaulting the mother.[19]
[18] Family Report, para 22
[19] Mother’s first affidavit, paras 55-58
Several things are obvious from that incident. First and foremost, the father assaulted the mother. Importantly though, the mother was unafraid to be alone with the father in his own home after their separation, despite her allegations of his protracted violent history. She had little option but to admit her absence of fear in cross-examination. Moreover, the mother must have considered the father’s home to be a sufficiently safe environment to take the children, since it was intended she and the children would stay overnight.
The mother even conceded she happily invited the father into her own home on numerous occasions after that incident. For a period of approximately 12 months following separation the parties continued a sexual relationship with one another. In August 2011 the mother mischievously sent a vitriolic text message to the father’s current partner telling her how much she enjoyed her sexual relationship with the father.[20] Logically, having committed to the decision to end their marriage, the mother would not have invited the father into her home and voluntarily conducted a continuing sexual relationship with him if she genuinely feared for her safety in his company.
[20] Affidavit of Ms L, para 19
Indeed, the mother admitted in cross-examination that she does not now have any fear of the father. Although she made that admission on the basis that she no longer has any interaction with the father, it is still illustrative that the prospect of any future violent conduct between the parties is remote. The mother harbours no continuing apprehension of it.
In cross-examination the Family Consultant agreed with the proposition that the potency of the past family violence was in the lower range.
The single expert was more guarded than the Family Consultant in respect of the mother’s allegations of family violence. He did not form any view about the “degree” of physical conflict and violence, but noted there was “a lot of verbal argument”, much of which occurred in the presence of the children.[21] He did not regard either party as “inherently violent”.[22]
[21] Exhibit C, page 20
[22] Exhibit C, page 21
The father conversely made allegations of the mother perpetrating family violence on various occasions. He was not challenged about that evidence,[23] although the mother denied some of the evidence when the matter was taken up with her in cross-examination.
[23] Father’s affidavit, para 41
I am satisfied on the evidence that the relationship between the parties was tempestuous, often involving heated argument and sometimes involving physical intimidation of the mother by the father, but I am not satisfied the relationship was characterised by a perpetual atmosphere of oppression or intimidation as the mother implied. In all likelihood the mother exaggerated the history of altercations between them and the father minimised it. In truth, the incidents of overt violence were rare, but the father sporadically bullied the mother in moments of conflict. Obviously such a relationship dynamic is to be deplored, but such a situation needs to be differentiated from an abusive relationship in which the mother was guilelessly and coercively trapped, which this relationship was not.
I pay no heed to the mother’s evidence about the father’s historic assaults of other adults.[24] Even though the father admitted once pushing the paternal grandmother many years ago, the circumstances were not meaningfully elaborated and it was not submitted the incident had a material bearing upon determination of the current narrow dispute about the amount of time to be spent by the children with the father.
[24] Mother’s first affidavit, paras 7-8
Nor do I pay any heed to the evidence of the father’s alleged sexual advance towards the maternal aunt.[25] Even if the event occurred as described by the maternal aunt, it simply serves to demonstrate the father’s rudeness and belligerence, just as numerous of his comments and text messages do.[26] It is not evidence of “family violence” as defined in the Act.
[25] Mother’s first affidavit, para 26-27; Affidavit of Ms C, paras 15-21
[26] Mother’s first affidavit, pars 87, 94, 98, 125; Affidavit of Ms C, pars 25-26
There is no evidence of any conduct between the parties since November 2010 that could potentially amount to “family violence”. I am not satisfied there is any current need to protect the children from physical or emotional harm through exposure or subjection to family violence committed between the parties in the future.
There is undoubtedly a need to protect the children from the harm they are liable to suffer through their continuing subjection to the parties’ intense conflict, but that is an issue for consideration under s 60CC(3) rather than s 60CC(2) of the Act.
Besides evidence of violence directed towards her, the mother also adduced evidence of the father’s abuse of the children.[27] It is puzzling why such evidence was adduced when the mother had already admitted to the single expert she did not believe the father would ever hurt the children.[28] In any event, the father denied the mother’s allegations in his affidavit, although he conceded having disciplined the children physically in the past.[29] The husband admitted in cross-examination that in an earlier affidavit filed by him in the proceedings he also conceded “grabbing the children by the hair behind the ear” if they were misbehaving in public. He must necessarily have done so to cause pain, or at the very least discomfort, to deter the children from the behaviour he found objectionable, for otherwise there was no point to it.
[27] Mother’s first affidavit, pars 22, 128, 133
[28] Exhibit C, page 6
[29] Father’s affidavit, par 18
Correction of a child by use of measured corporal punishment is a legitimate statutory defence to a charge of assault in NSW (s 61AA of the Crimes Act 1900 (NSW)), but most would still regard it as unwise. While the father’s past punishment of the children may fall short of an assault, or “abuse” as defined in the Act, his conduct has induced in them a sense of wariness about him.[30] The husband’s treatment of the children at times in the past should be regarded as misguided discipline rather than abusive behaviour.
[30] Family Report, pars 71-72, 75, 77, 84, 85
The father alleged the mother formerly abused the children and cited an example of her inflicting a welt on the buttock of the eldest child with an implement.[31] The father was not challenged about that evidence and I therefore accept it as truthful and accurate. In view of the mother’s apparent concern about the father’s alleged abuse of the children, one would reasonably expect her to have challenged such evidence of her alleged abuse of the children if it was denied.
[31] Father’s affidavit, para 18
Notwithstanding the past physical punishment of the children by both parties, each attested to their current employment of behavioural strategies which do not entail physical discipline. Beyond a general injunction restraining corporal punishment of the children by the parties, I am not satisfied there is any continuing need to protect the children from physical or emotional harm that may arise from exposure or subjection to abuse.
Neither party alleged “neglect” of the children.

Best interests of the child – additional considerations (s 60CC(3))

The eldest child stated to both the single expert and the Family Consultant his desire to spend more time with the father[32] and the youngest child expressed a similar sentiment.[33] The mother admitted the children had made similar comments to her.
[32] Exhibit C, pages 8, 15; Family Report, paras 66, 77
[33] Family Report, para 90
Caution needs to attend acceptance of the children’s stated views. That is because they are still young and do not have the maturity to understand the implications of their expressed views and also because of the pressure they have perceived to intercede in the conflict between the parties. Other than to observe that their mutual wish to spend more time with the father is consistent with the warmth of their observed interaction with him[34] I attribute no weight to the children’s expressed views.
[34] Family Report, paras 79, 91, 92
The parties’ attitudes to the responsibility of parenthood and their capacity to provide for the emotional needs of the children are substantially impaired. So focussed have they been on their inter-personal conflict they have all but ignored the deleterious consequences for the children, which reflects poorly upon them as parents.
As the parties’ relationship disintegrated during 2010 the children’s behaviour regressed and even now, some two years later, their behaviour remains troublesome.
In 2010 the eldest child began misbehaving at school.[35] He also suffered from encopresis. The problem was of such seriousness that a doctor was consulted and the child was referred to a psychologist.[36]
[35] Mother’s first affidavit, para 41
[36] Mother’s first affidavit, paras 42-44; Family Report, para 80; Exhibit M2
In 2010 the parties also received adverse reports about the youngest child’s behaviour at pre-school.[37] A specialised behaviour plan was devised for him and, some months after the eldest child’s referral, he was referred to the same psychologist. The youngest child also suffered from encopresis.[38]
[37] Mother’s first affidavit, paras 45-47
[38] Family Report, para 94; Exhibit M2
There was apparently some respite in the children’s behaviour in 2011, but it regressed again and the children re-commenced therapy with the psychologist. At least for the youngest child, the regression has involved recurrence of his encopresis.[39]
[39] Family Report, paras 30-31, 33, 95
It is hardly possible to over-state the seriousness of the situation when a child is afflicted by encopresis, which is an extreme physiological response to stress.
The explanation proffered by the single expert was that the parties’ conflict probably caused the children’s affliction by encopresis. So, in this instance, two healthy young boys have been so overwhelmed and stressed by the intense conflict to which they have been exposed by their parents that they either lost the basal ability to control their bowel and sphincter, or alternatively, were so angered and frustrated by their predicament that they resorted to such a profound form of protest. The mere explanation is enough to convey the gravity of their despair.
The eldest child is again acting aggressively at school.[40] Following a recent consultation in early June 2012 the psychologist reported that he is “very angry” and “just wants to fight”.[41] Only days after that consultation the eldest child was suspended from school for fighting.[42]
[40] Mother’s first affidavit, para 108
[41] Mother’s second affidavit, para 31
[42] Mother’s second affidavit, para 35
The youngest child’s aggression was also recently displayed when he used profane language towards his rugby coach.[43] The child, despite being only six years of age at the time, was later temporarily suspended from the club because of his aggressive behaviour towards the coach and other children.[44]
[43] Mother’s second affidavit, para 10; Father’s affidavit, para 28
[44] Father’s affidavit, para 66, Annexure MH2
The eldest child reported to the Family Consultant that he was feeling somewhat better,[45] but that was before his recent school suspension, so it follows he has experienced little improvement. There is no change at all in the condition of the youngest child, who remains worried, sad and scared.[46]
[45] Family Report, para 65
[46] Family Report, paras 83, 86-88; Affidavit of Ms L, para 26
The mother, perhaps on the advice of the psychologist, attributed blame for the children’s aberrant behaviour to the father.[47] I do not accept the validity of that opinion. It is glib and superficial to attribute blame solely to one parent.
[47] Family Report, paras 32, 80-82, 105; Exhibit M2
Just as simplistically, the father wrongly attributed their aberrant behaviour to inexperienced staff at the youngest child’s pre-school, the mother’s decision to return to the workforce (inferring she spent insufficient time with them), and the mother’s need to “get over it”.[48] The fault does not lie solely with the mother either. The father’s past refusal to acknowledge his role in the cause of the children’s disturbance was either disingenuous or insightless[49] – more likely the former considering in the past he was able to make appropriate concessions about his lamentable conduct to his general practitioner.[50]
[48] Family Report, paras 52, 58, 104, 107
[49] Family Report, paras 42-44, 53
[50] Family Report, para 44
The likelihood is the children’s behaviour is a response to them being overwhelmed by the entrenched parental conflict to which they have been exposed, just as the single expert and Family Consultant explained. That was the pre-eminent issue of concern to the children.[51]
[51] Children and Parents Issues Assessment, page 3; Exhibit C, page 3
I accept as correct the opinion of the Family Consultant that:[52]
…the children appear to have been involved in and exposed to high levels of age-inappropriate information pertaining to the adult dispute in both households, which appears to be contributing to the children’s feelings of stress, sadness, and responsibility. Therefore, unless both parents are better able to prioritise the children’s needs and protect them from the parental dispute, then the psychological burden that the children are experiencing with respect to these issues will only further impair their developmental progression.
[52] Family Report, para 109

The conflict has infected the lives of the children to such an extent that they now try to police the father’s compliance with the injunction not to drink alcohol,[53] take photographs and recordings within the father’s household,[54] quiz the parties directly about “who is telling the truth?”,[55] check the mother’s mobile telephone to verify the father’s reports about nasty messages,[56] and feel the need to boost the parties’ confidence by displaying loyalty and reassuring them that they love them and wish to stay longer with them.[57] It is truly saddening that the youngest child feels as though his happiness depends upon the happiness of his parents.[58]
[53] Father’s affidavit, para 75
[54] Family Report, paras 33, 49, 50, 69; Father’s affidavit, paras 75-76
[55] Father’s affidavit, par 80(a); Family Report, para 73
[56] Family Report, para 73
[57] Father’s affidavit, par 80(c), 103
[58] Family Report, para 89
The parties have certainly rendered the children complicit in the litigation. The mother admitted she had interrogated the eldest child about the father’s compliance with the injunction against alcohol consumption, even though she knew it was harmful to the child for her to do so.[59] Similarly, the father engaged the eldest child in debate about the mother’s own drinking habits when the child raised the injunction against alcohol consumption with him[60] and told the child the mother was sending him nasty messages.[61] Both parties admitted providing the eldest child with exculpatory explanations about allegations they believed had been wrongfully made against them by the other.[62]
[59] Family Report, para 34
[60] Family Report, para 48
[61] Family Report, para 73
[62] Family Report, paras 35, 51, 73
The Family Consultant’s opinion about the damage caused to children exposed to such conflict could not be clearer or more foreboding. She reported:[63]
Children who are exposed to issues of family violence are likely to experience some interruption to their development. Children may exhibit aggressive behaviour, poor emotional regulation and learning difficulties. Their sense of security, trust, and their understanding about what is interpersonally safe and appropriate behaviour is likely to be impaired, which can make children increasingly vulnerable as they mature.
[63] Family Report, para 101
Although the Family Consultant there referred to “family violence”, she explained in cross-examination that exposure of children to any form of parental conflict will have those repercussions.
The Family Consultant recognised that the child’s psychologist attributed the children’s behaviour to their exposure to family violence committed by the father, but the Family Consultant sensibly acknowledged that such an opinion was based upon the history given to that psychologist by the mother. In the view of the Family Consultant, the children’s behaviour was just as consistent with their exposure to the parties’ broader conflict.
It barely requires articulation, but orders must be made with a view to abating the children’s exposure to the parties’ continuing conflict. The real question is how that is to be successfully achieved.
The Family Consultant’s solution was the imposition of a highly structured and predictable residential environment in which the children are cared for by emotionally well-regulated parents with consistent parenting styles.
Those strategies would not be a surprise to the father because he told the Family Consultant he believed the children needed stability and consistency between the two households.[64] However, his evidence betrayed his knowledge that such stability and consistency does not presently exist. He deposed to his belief about the “very different” parenting styles of the parties[65] and said in cross-examination the parties do not have a “clear and consistent plan”.
[64] Family Report, para 54
[65] Father’s affidavit, para 40(d)
Making provision for changeovers to occur wherever possible at school would also avoid the prospect of the parties having to interact with one another face-to-face. The mother agreed in cross-examination that such an arrangement would eliminate conflict that occurs at changeovers.
The issue of the father’s past and future alcohol consumption attracted enormous attention in the proceedings.
The mother has always perceived a connection between the father’s alcohol consumption and abusive behaviour by him[66] and it seems that the children have also correlated the father’s alcohol consumption with aggressive behaviour.[67]
[66] Mother’s first affidavit, paras 130-131, 136; Family Report, paras 26-28; Exhibit C, page 6
[67] Family Report, paras 71-72
The father minimised the issue of his alcohol consumption when discussing it with the Family Consultant[68] and in his evidence,[69] but he finally made appropriate admissions in cross-examination that it been problematic, saying he had not been “man enough to recognise it before”.
[68] Family Report, paras 45-46
[69] Father’s affidavit, para 25
There could be little doubt the father has historically consumed more alcohol than an average adult and more than he considered was really healthy for him. He made admissions of that sort to his doctor and psychiatrist in the past, who expressed mild alarm about the extent of his drinking patterns.[70] He also told the single expert he had been attempting to reduce his intake, inferring it had been excessive.[71]
[70] Family Report, para 97; Exhibit M3; Exhibit M7
[71] Exhibit C, pages 10, 12
The Independent Children’s Lawyer requested the father to undertake a series of liver function tests designed to demonstrate whether the father’s past drinking patterns had been so excessive as to cause liver damage.[72] The father willingly undertook the tests, but the results were not analysed so their meaning remains a mystery and the exercise was futile. The mother and Independent Children’s Lawyer insisted on tendering as exhibits some test results,[73] together with an article about the traditional markers of excessive alcohol use,[74] but the exhibits proved nothing in the absence of expert explanation. The Independent Children’s Lawyer properly conceded as much in final submissions and, although no similar concession was made for the mother, the absence of any submission at all for her on the topic was tantamount to such a concession.
[72] Exhibit ICL2
[73] Exhibit ICL1; Exhibit M5
[74] Exhibit M4
For what it is worth, the father’s partner was cross-examined about the liver function tests taken by the father and she said the father’s doctor had told him the results revealed nothing adverse.
Irrespective, any conclusion that the father does, or at least did, consume too much alcohol is not, in isolation, probative of anything in particular. The only relevance of the father’s drinking habits is the manner in which, if at all, they affect the best interests of the children. In light of the evidence adduced and the submissions made, the only ways in which the father’s drinking habits could conceivably affect the interests of the children are the inducement in them of continuing anxiety about him drinking and then acting aggressively, his quality as a role model to them in those circumstances, and the prospect of his intoxication impairing his capacity to properly care for them.
The latter consideration can be ruled out as an issue. I am not satisfied the father would willingly or recklessly compromise his capacity to care for the children by becoming intoxicated whilst the children were spending time with him.
As to role modelling, the father would be no less a role model than the mother or any other adult would be by moderate use of alcohol. It is a fact of life that adults consume alcohol. One might reasonably think that children would benefit from role modelling by adults who drink alcohol moderately and sensibly, rather than by adults who are compelled by Court order to abstain from any consumption. The former, but not the latter, would teach children how alcohol should be responsibly handled in social settings, which instruction would be useful to them as young adults.
The principal argument of the mother and Independent Children’s Lawyer was that, because the children correlate the father’s alcohol consumption and aggression and therefore remain apprehensive of its occurrence, allowing the father to continue drinking around the children would perpetuate that anxiety, which would not be in their best interests. For that reason they argued the father should be indefinitely restrained from consuming alcohol while the children are spending time with him and for a period of time in advance of each visit.
The single expert “found it difficult to form a clear view” as to whether the father was a “problem drinker”.[75] Although the single expert conceded the issue was “not clear cut”, he recommended the imposition of a restraint precluding the father from consuming alcohol when the children were with him. The reasoning was that it would be a show of respect and a safeguard.[76]
[75] Exhibit C, page 18
[76] Exhibit C, page 23
The Family Consultant, when cross-examined, endorsed the view of the single expert that the father should be permanently restrained from consuming alcohol during visits by the children to him and at times proximate to that.
Having considered the arguments of the mother and Independent Children’s Lawyer, supported as they were by the opinions of the single expert and Family Consultant, I am not persuaded to impose upon the father a permanent restraint against his consumption of alcohol. There are two reasons for that.
Firstly, an injunction restraining the father from consuming alcohol has been in place since the interim orders were made in July 2011 and that injunction has proven an abject failure in quelling the parties’ dispute over the issue.
Secondly, the parties’ continuing dispute over the issue has harmfully embroiled the children. The mother conceded she told the children that the father was not allowed to drink alcohol in their presence and they have become obsessed by the issue, scolding the father when they believed he may have been drinking, taking photographs of the father as proof of the fact for the mother’s benefit, reporting back to the mother and delivering the photographs and recordings to her, which she still retains. The children’s hyper-vigilance is compounded by their knowledge of the mother’s anxiety over the issue.
I accept the submission that there is a risk the children may be disturbed by continuing anxiety about the father’s consumption of alcohol in their presence. However, the gravest risk is of the children suffering emotional harm through subjection to the mother’s continuing anxiety and her interrogation of them about the father’s compliance with any permanent injunction. The interim injunction has stimulated rather than suppressed controversy over the issue and that would likely continue if the injunction was made permanent.
I accept the evidence of the father and his partner that they have moderated their drinking habits and would be careful about their alcohol consumption when in the presence of the children. Any anxiety experienced by the children about the father becoming aggressive when drinking in their presence, about which the mother and Independent Children’s Lawyer are fearful, will likely abate when they observe in future that the father can drink alcohol moderately in their presence and not become aggressive. In such circumstances, the heat the issue currently attracts will dissipate.
On balance the greater detriment to the children is likely to flow from the imposition of a permanent injunction restraining the father from consuming alcohol. I therefore decline to make any such injunction. In view of the children’s immersion in the controversy over the imposition of the injunction it would be advisable for the Independent Children’s Lawyer to neutrally explain the orders to the children so as to put their minds at ease.
There are no existing family violence orders.[77]
[77] Family Report, par 7
The parenting orders are practicable and inexpensive to implement because the parties’ households are only a drive of 10-15 minutes apart.[78]
[78] Family Report, par 10

Conclusions and Orders

The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence (s 61DA(2)). He undoubtedly assaulted the mother in November 2010 because his guilt was established in criminal proceedings. The virulence of the family violence is irrelevant to displacement of the presumption.
Even though the presumption of equal shared parental responsibility does not apply such an order may still be made if the children’s best interests justify it.
The Family Consultant made no recommendation in the Family Report about the allocation of parental responsibility. When asked about it in cross-examination she was plainly inclined to the allocation of equal shared parental responsibility because of the manner in which both parties had exemplified their past ability to successfully collaborate over decisions concerning the children.
The father and Independent Children’s Lawyer both advocated for the allocation of equal shared parental responsibility for the same reason.
The mother, however, desired sole parental responsibility for the children, although she professed her willingness to consult with the father in writing about issues of importance to the children.[79]
[79] Exhibit M8, Orders 1-2
If invested with sole parental responsibility the prospect of the mother genuinely consulting the father over issues of long-term importance to the children would be quite remote. Such an inference necessarily arises from the mother’s answers in cross-examination that the father had “nothing valuable to contribute” in relation to parental responsibility and that she did not regard him as either a “good man” or a “good role model”.
If the mother holds out her willingness to consult with the father it must necessarily follow that she is prepared to communicate with him, even if only in writing. Her past explanations of not wishing to communicate with the father at all as the reason for allocation of sole parental responsibility to her therefore have no bearing.[80]
[80] Family Report, para 36
The parties do have proven ability to communicate constructively when they are minded to do so. They have negotiated alternate arrangements for the children outside the interim parenting orders,[81] arranged to share the care of the eldest child when he was suspended from school for two days, and even recently went out together with the children for morning tea.[82] The mother concedes that in recent months the parties were quite amicable.[83] Their burgeoning conviviality only failed because of the father’s recovery of chattels from the mother’s home without her permission in May 2012,[84] for which incident they are equally blameworthy. The mother unreasonably refused the father’s requests to collect the chattels so he finally decided to enter the mother’s home without her permission to recover them anyway.
[81] Family Report, para 38
[82] Father’s affidavit, par 60
[83] Mother’s second affidavit, paras 3, 8
[84] Mother’s second affidavit, paras 16-19; Father’s affidavit, paras 31-33, 64
The father clearly wants to participate in decisions relevant to the children’s welfare. He recently made arrangements to attend the parent/teacher interviews at the children’s school[85] and the parties jointly consulted with the children’s psychologist.[86]
[85] Father’s affidavit, para 56
[86] Father’s affidavit, para 60; Exhibit M1
The children’s best interests are served by issues of long-term importance to their welfare being the subject of consideration and comment by both parties. I am satisfied the parties should have equal shared parental responsibility for the children. The parties are both intelligent individuals who are able to communicate in writing, either by email or text. In fact, the mother said she resorted to that method to avoid confrontation. She should continue to do so.
The orders require the parties to keep one another appraised of their current contact details. That will assist in the exercise of their equal shared parental responsibility and facilitate the children’s telephone and electronic communication with both parties.
Having determined to allocate equal shared parental responsibility, the Act obliges the Court to then consider the children living with the parties for equal time, or alternatively, living primarily with one and spending substantial and significant time with the other.
It is impracticable for the children to live with the parties for equal time. So much is obvious from the fact that such an arrangement was not proposed by either party or the Independent Children’s Lawyer. The father works full-time and it is a journey of at least 55 minutes between his home and his place of work. It is not feasible for the children to live with him for equal time because the time he devotes to work and travel extends well beyond the margins of school hours.
It is common ground the children should live primarily with the mother. The debate centred around the amount of time the children should spend with the father.
Ultimately, there was only marginal disparity between the parties about the duration of time to be spent by the children with the father each alternate weekend. It was agreed the time should start at the conclusion of school on Friday afternoons. The difference of opinion was about when the time should conclude. The mother and Independent Children’s Lawyer advocated for the time to conclude at the commencement of school on Monday mornings, but the father pressed for an additional night so the time concluded on Tuesday mornings before school.
The Family Consultant’s opinion was consistent with the proposal of the mother and Independent Children’s Lawyer, because that best promoted the children’s stability during the school week. The single expert also held a similar view.[87]
[87] Exhibit C, page 23
The father also proposed that the children spend time with him for one extra night in the intervening week. The mother and Independent Children’s Lawyer both opposed that proposal, as did the Family Consultant. In the opinion of the Family Consultant, the father’s proposal was approaching her definition of “shared care”, which she explained as undesirable because of the high conflict.[88]
[88] Family Report, pars 112, 117
The proposal of the mother and Independent Children’s Lawyer is more attractive than that of the father. Given the uncontentious need of the children for stability, structure, and consistency in parenting style, that need is better served by the children spending time with the father on alternate weekends, commencing at the conclusion of school on Friday and concluding at the commencement of school on Monday.
The father contended such a regime would not meet the definition of “substantial and significant time” found within the Act (s 65DAA(3)). I do not agree. The children will spend time with the father on weekdays, days of the weekend, holidays and other special occasions. In any event, even if the father’s submission was correct and such arrangement was not “substantial and significant time”, a more expansive arrangement for alternate weekends than that proposed by the mother and Independent Children’s Lawyer is not in the children’s best interests for the reasons explained (s 65DAA(2)(c)).
Nor am I satisfied that a more expansive arrangement is reasonably practicable (s 65DAA(3)(d)). The father’s work commitments add another dimension of complication. On weekdays it is his habit to leave home for work at around 7.30 am each morning and not arrive home until after 5.30 pm each evening. Clearly, he will already need to make alternate arrangements to leave work early on Friday afternoons and arrive at work late on Monday mornings each alternate week in order to collect the children from school at the commencement of their weekend visits with him and then return the children to school at the end of those visits. There was no explanation given by the father about how he could achieve that other than to say his work hours were flexible. It is not difficult to accept such an explanation when that arrangement was also willingly endorsed by the mother and Independent Children’s Lawyer. But it is altogether another thing to simply assume, in the absence of any evidence, that each and every fortnight the father would additionally be able to leave work early on Monday afternoons and arrive at work late on Tuesday mornings to collect and deliver the children to and from school at those times as well.

The same consideration applies in respect of the father’s additional proposal, opposed by the mother and Independent Children’s Lawyer, for the children to spend time with him for one extra mid-week night each fortnight. The evidence is silent about how the father could manage such parenting arrangements around his work commitments. It cannot be imputed the father could rely on assistance from his partner because she works full-time at the same place as the father and keeps the same work hours as him. The father’s partner also said in cross-examination that the father swims most mornings of the week for exercise. That exercise regime would also tend to complicate the father’s arrangements around the children’s school commitments.
The father’s proposal for the children to spend the extra night per fortnight with him has all the flavour of an order he desires for himself rather than for the benefit of the children. As the Independent Children’s Lawyer pointed out in submissions, the children derive benefit from time spent with the father by reference to its quality, not its quantity.
The father sought orders for the children to spend time with him in the Christmas school holidays in a structured way so as not to impinge upon his specialised work commitments at that time of year.[89] The Independent Children’s Lawyer also proposed orders making allowance for the father’s work commitments in January each year.[90]
[89] Father’s affidavit, para 68; Amended Response, Order 5
[90] Exhibit ICL3, Orders 2(b)(iv), 2(b)(v)
I decline to make orders for the Christmas school holidays that are fashioned around the father’s work commitments for reasons advanced by the father’s own counsel. The father has four weeks leave every year which he can co-ordinate with the time the children spend with him during school holiday periods. He can also resort to unpaid leave to have the children in his care. However, there is no requirement the father must always be personally present when the children spend time with him. There is no good reason why the children cannot spend time with the paternal grandparents during school holiday periods. In fact, it would probably be of benefit for them to do so occasionally. If the children’s time with the father during the Christmas school holidays falls at a time when his work commitments preclude his daily care for them then he will probably make satisfactory alternate arrangements for them, including staying with grandparents.
The mother also sought modified orders during school holiday periods at least until the youngest child commences secondary school,[91] but her reasons were different. She considered that the children would not cope emotionally with prolonged separation from her until they have acquired greater maturity. While the mother may genuinely believe that, I do not accept it as fact. There is no evidentiary basis to find that the children could not emotionally manage spending half of their school holiday periods with the father.
[91] Exhibit M8, Orders 4.2, 4.3
The exchange of the children will occur via the school during school terms. That will avoid the prospect of conflict at face-to-face meetings between the parties. Whenever the changeover cannot be implemented at the school the venue will be the shopping centre presently used for that purpose. Even though the parties will then probably meet, it will at least be in a public place. That will be an inducement for them to behave courteously.
As an additional measure, an injunction is made restraining both parties from causing or permitting the children to be exposed to denigration of one by the other. The parties previously agreed to the imposition of such an interim injunction and they could not be heard to argue reasonably against a permanent injunction in similar terms.
The orders require the father to complete a post-separation parenting program. Consent orders were made in October 2011 requiring both parties to complete such a program. The mother did but the father did not. His explanation for his failure to comply with that order is unconvincing and reflects poorly on his attitude. He has had more than sufficient time within which to comply. His attendance should have been a priority. Nonetheless, I am not prepared to make the amount of time spent by the children with him conditional upon his completion of the program, since that is just a technique to enforce the father’s attendance rather than an order which meets the best interests of the children.
Obviously the benefits afforded by a post-separation parenting program are dependent upon various factors, not the least of which are the willingness to attend and be educated. Hopefully the father will be open-minded about how he can be educated by such program to relate better to the mother as a co-parent rather than as an ex-partner and about how parental conflict is emotionally damaging to children.
The orders also provide some structure to telephone communication, consistently with the Family Consultant’s recommendation.[92] That should rectify the deficiencies of the current ad hoc arrangements. Although the mother did not admit the father’s version of events, she asserted in cross-examination the father did not even bother to call. The parties’ evidence is irreconcilable and only serves to prove the need for greater regulation. The orders require the party with whom the children are then staying to initiate the telephone calls to the other, which will hopefully overcome the problem alleged by at least the mother.
[92] Family Report, pars 113, 119
For reasons explained earlier, an injunction is made to restrain both parties from using corporal punishment upon the children.

Property adjustment orders

Process of property adjustment

In determining the property adjustment orders that should be made between spouses the Court follows a recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]).
Firstly, the Court should identify and value the matrimonial pool of property, comprised of assets, liabilities and financial resources at the date of the hearing.
Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) of the Act, and determine the contribution-based entitlements of each party as a percentage of the matrimonial pool of assets.
Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), and s 75(2) of the Act, and determine the adjustment, if any, that should be made to the contribution based entitlements of the parties.
Finally, the Court should consider the effect of those findings and resolve what order is just and equitable in all the circumstances of the case.

The matrimonial pool of property

I find that the matrimonial pool of assets, liabilities and resources is comprised as follows (to the nearest dollar), consistently with the agreement of the parties:

No.	Assets	Party	Value	Total
1	D property	Joint	690,000
2	Toyota vehicle (…)	W	20,000
3	Camper trailer (…)	W	4,000
4	Wine collection	H	nil
5	Gym equipment (W’s possession)	H	2,000
6	Tools and miscellaneous equipment	H	2,000
7	Antique buffet and hutch, table, chairs	H	4,000
8	Balance of furniture	W	3,000
9	NAB account balance	H	2,000
10	Bank account balance	W	603
Sub-total	727,603	727,603
Add-backs
11	Paid legal fees	H	44,630
12	Paid legal fees	W	7,104
Sub-total	51,734	779,337
Liabilities
13	Mortgage (D property)	Joint	546,754
14	Go credit card	W	836
15	Visa credit card	W	21,279
16	Ignite credit card	H	nil
Sub-total	568,869	210,468
Superannuation
17	Colonial First State	H	68,843
18	Colonial First State	W	38,614
Sub-total	107,457	317,925
Net pool	317,925

The Court is generally exhorted to deal with the parties’ contributions to superannuation entitlements separately from other assets, but that is not obligatory (see Marriage of Coghlan (2005) 33 Fam LR 414 at 428-429). Neither party directly addressed the issue in submissions, but inferentially, they each treated superannuation as another asset. It is appropriate to adopt that course in the circumstances of this case because the superannuation interests of the parties were wholly accumulated after the commencement of cohabitation, the differential in the value of their superannuation interests is not remarkable, and each party has a long working life ahead of them to accumulate more superannuation.

Assessment of contributions

Neither party adduced any evidence of ownership of any asset of significance at the commencement of their relationship, in which circumstances I impute equivalence.
The father initially studied at university and worked part-time, but began full-time work in 2000 after two years of study. He completed his degree whilst working full-time.[93]
[93] Father’s affidavit, pars 81-86
The mother worked from the beginning of the relationship and helped support the father while he was a student.
With the acquisition of his degree and experience, the father’s income exceeded the mother’s. Following the birth of the children the father assumed the role of primary breadwinner and the mother assumed the role of primary homemaker.
The mother enjoyed, as part of her employment, the right to breed livestock for her own profit. She did so successfully. Although the evidence was somewhat convoluted, the mother probably received about $61,000 net from the sale of at least six animals over several years,[94] and perhaps another $10,000 from the sale of an animal not separately mentioned in her affidavit. The father was doubtful about the amounts, but his challenge of the mother was faint.
[94] Mother’s second affidavit, par 43; Father’s affidavit, par 92
The money derived by the mother from her livestock breeding activities was certainly contributed to the household. It is irrelevant whether the money was applied, either totally or partially, towards the purchase of real property in the township they were then living, about which the parties are in dispute.[95]
[95] Mother’s second affidavit, par 44; Father’s affidavit, par 93
In October 2006 the father was injured in a motor cycle accident on his way home from work, for which he later received compensation of nearly $206,000. Of that sum, a portion was attributable to care of the father by the mother.[96] The father conceded he was nursed to some extent by the mother for many months, during which period the burden of the children also fell exclusively upon her. Taking account of those facts is not repugnant to the attribution of proper weight to the contribution by the father to the household of the personal injury damages (see Aleksovski & Aleksovski (1996) FLC 92-705 at 83,437).
[96] Mother’s second affidavit, pars 47-51
The compensation money was used for the benefit of the family unit. The money was partially spent upon the acquisition of the real property at Central Coast town D as an investment,[97] being the only parcel of real property in which the parties currently have an interest.
[97] Mother’s second affidavit, pars 54-56; Father’s affidavit, par 88
Following separation the father maintained the mortgage repayments upon the investment property at the Central Coast and the mother retained all of the rental income. The parties later shared the rental income, but they dispute when the change in that arrangement occurred.[98] The husband also reduced his payments in respect of the mortgage once child support was formally assessed, about 12 months after separation.[99]
[98] Mother’s second affidavit, pars 59-60; Father’s affidavit, pars 96-97
[99] Father’s affidavit, par 97
For some time following separation the parties each continued to use the money saved in a joint account, into which their salaries were deposited, for payment of their expenses as and when the money was needed.[100] The evidence is silent as to whether that arrangement persists or when it ceased.
[100] Father’s affidavit, par 95
Self-evidently, the mother has borne the primary burden of caring for the children since separation. The time spent by the children with the father over the last two years has been relatively curtailed.
There was little dispute over the factual history of the parties’ contributions but surprisingly strident controversy over the effect of such contributions upon their respective entitlements. The mother assessed her entitlement at 40 per cent of the matrimonial pool whereas the father submitted the mother’s entitlement was only 20 per cent.
The father’s distorted assessment relied only upon his assertion as to the importance of the capital contribution of damages worth $206,000 little more than a year before final separation. However, his assessment overlooked the valuable capital contributions from the mother’s livestock breeding activities, her initial financial support of him whilst he studied, her care for him and the children during his convalescence after the motor cycle accident, for which some of the personal injury damages were attributable, and her primary care of the children since separation. The contributions of the parties throughout their relationship in the derivation of income, the performance of domestic duties, and the care of their children were otherwise relatively equal.
There can be little doubt the capital contribution of the father’s personal injury damages was a significant boon for the family, since it was used to discharge considerable debt and acquire investment real estate, but it must still be viewed in the context of all other financial and non-financial contributions.
The parties were correct to assess the father’s overall contributions as superior, but the proper measure of the superiority is a differential of 25 per cent, meaning the father’s entitlement is 62.5 per cent and the mother’s entitlement is 37.5 per cent. The father’s opinion that his contributions exceeded the mother’s by a factor of four is indefensible and the mother’s opinion about the extent of her entitlement pays insufficient regard to the importance of the father’s financial contribution of the personal injury damages award.
The mother submitted that her homemaking contributions attracted greater weight because of the arduous conditions, caused by the husband’s aggressive conduct towards her, under which she made her contributions (see Marriage of Kennon (1997) 22 Fam LR 1; Marriage of Doherty (1995) 20 Fam LR 137 at 141), but that submission is rejected.
In Kennon the majority stated (at 24), without dissent (at 66-67):
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that…
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past…
However, in our view, s 79 should encompass the exceptional cases which we described above…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had discernable impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass…conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
The Full Court also adopted (at 18) the views of the trial judge to the effect that in the absence of any evidence linking impaired state of health of a party with the nature and quality of contributions made by that party there is no basis for finding the party should receive an adjustment for that factor.
Here, there was no evidence at all that the wife actually even suffered any impaired state of emotional health. Nor was there any evidence, expert or lay, which reasonably bore upon the causal relationship between violent conduct of the husband, the mother’s alleged impaired state of health, and her contributions being rendered qualitatively greater because of that adversity.
Given the mother assessed her entitlement at 40 per cent in light of her Kennon argument, it logically follows that she would concede her entitlement was less if the Kennon argument failed.

Adjustment of entitlements

For reasons which were relatively similar, the parties agreed an adjustment was warranted in favour of the mother and that the adjustment was properly quantified at 10 per cent.
I am satisfied that is a proper adjustment. There is no need to explain why in the face of the parties’ concurrence.
The mother’s overall entitlement to the pool is therefore 47.5 per cent and the father’s is 52.5 per cent.

Just and equitable orders

The parties both propose that their only parcel of real estate be sold and the net proceeds divided between them.
The mother proposed a superannuation splitting order to allocate to her a portion of the father’s superannuation interest, but that proposal was effectively abandoned when the mother realised during submissions that she would prefer the liquidity of extra cash rather than a larger superannuation interest. The father was disinterested in any superannuation split.
Otherwise, there were only chattels to divide between the parties.
The mother wanted the Toyota vehicle and camper trailer,[101] about which the father did not argue.
[101] Exhibit M8, Orders 20-21
The father wanted the antique buffet and hutch, dining table and chairs, and gym equipment.[102] The mother did not argue about those items either.[103] I impute that the other chattels desired by the father[104] were the chattels he removed from the mother’s home in May 2012 and already rest in his possession. It is impossible to say with certainty because the father did not disclose what chattels he recovered on that occasion. Nor did the mother. The list of chattels referred to in her affidavit was not annexed.[105]
[102] Amended Response, Order 28(a)-28(d)
[103] Exhibit M8, Order 22
[104] Amended Response, Order 28(e)-28(r)
[105] Mother’s second affidavit, par 18
No evidence was adduced by the moving party and no submissions were made about some proposed orders,[106] in which case the orders are not made. The Court cannot be expected to make orders, which are not overtly consensual, in the absence of evidence and explanation.
[106] Exhibit M8, Order 23; Amended Response, Order 27
As a consequence of those conclusions, the mother will retain assets (items 2, 3, 8, 10), add-backs (item 12), liabilities (items 14, 15) and superannuation (item 18) with a combined net value of $51,206.
The father will retain assets (items 4, 5, 6, 7, 9), add-backs (item 11), liabilities (item 16) and superannuation (item 17) with a combined net value of $123,473.
The retention of those items by the parties accounts for all assets and liabilities other than the D property and the mortgage by which it is encumbered.

To ensure the mother has 47.5 per cent of the matrimonial she needs to receive the first $60,508 from the net proceeds of sale of the D property. That will redress the imbalance in the value of the assets currently retained by the parties, as the father would then have assets worth $123,473 and the mother assets worth $111,714 (= 51,206 + 60,508). The remainder of the sale proceeds of the D property will then be divided in the proportions of the parties’ entitlements.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 16 August 2012.

Associate:

Date:

[2012] FamCA 679

16 August 2012

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

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