JACOBS & SHAEFFER

This case involved a dispute between a mother and father concerning parenting orders for their three children and the division of their property. The father also sought to set aside consent orders made on 29 August 2006. The proceedings were heard by Faulks DCJ.

The court was required to determine several legal issues. In relation to the children, the court had to consider allegations of family violence against the father, the father's capacity to emotionally care for the children, and whether shared or equal parental responsibility and time were appropriate. Regarding the property dispute, the court needed to ascertain whether the consent orders should be set aside due to a miscarriage of justice, whether mortgages purportedly entered into by the father were genuine, and if genuine, the likelihood of their enforcement.

The court's reasoning regarding the property division focused on the husband's conflicted position as executor of his mother's estate and a debtor to it. The court found that the husband's delay in applying for probate and his failure to disclaim his executorship indicated that the debts owed to the estate were unlikely to be enforced. Applying the principles from *Af-Petersens & Af-Petersens*, the court determined that these unlikely-to-be-enforced obligations should not be taken into account in the property division.

In its final orders, the court discharged all previous parenting orders, made no orders regarding two of the children, and granted the mother sole parental responsibility for the youngest child, E. E was ordered to live with her mother but spend time with her father on an alternating weekend basis, half of school holidays, and specific arrangements were made for birthdays and Christmas. The court also made orders restraining both parents from speaking negatively about each other in E's presence and established communication protocols. Crucially, the court set aside the consent orders made on 29 August 2006 pursuant to s 79A of the *Family Law Act 1975* (Cth) and ordered the husband to pay the wife $205,370 within 42 days. If this payment was not made, the property was to be sold, with the wife to receive 60 per cent of the total property (excluding superannuation) after sale. The wife was appointed trustee for sale of the property, with specific provisions for consultation and agreement on sale terms.