K & K

[2003] FamCA 1358

[2003] FamCA 1358

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

SITTING AT BALLARAT

No. MLF3414/2001

IN THE MARRIAGE OF:

MR K

(Husband)

and

MRS K

(Wife)

THE HONOURABLE JUSTICE MUSHIN
REASONS FOR JUDGMENT

DATES OF HEARING:24, 25, 26, and 27 November, and 2 and 5 December, 2003.

DATE OF JUDGMENT: 5 December, 2003.

Appearances: 

Mr. Serra of counsel instructed by Mr. A. Webb, Saines & Partners, for the husband.

Mr. Pavone of counsel instructed by Mr. G. Jackson, Graeme Jackson Pty. Ltd., appeared for the wife.

JUDGMENT  [12.30 pm]

1. The essence of these proceedings concerns the question of contact between Mr K and his children.  There are also competing applications for alteration of property interests pursuant to Part VIII of the Act.

2. After all the time that has been spent with evidence and submissions it is now my task to give you the result and the reasons for that result.  What I am now going to say for the next hour or so is the reasons why I have arrived at the result that I have and I will finally tell you the result.  In doing so there are a couple of things that you need to know.  The first of them is that you have both been represented by extremely able and professional counsel who have each put on your respective behalf that there is to put in the best possible way that it can be put.  Secondly, you have been represented by solicitors who have drawn excellent affidavits and again put everything that can be put on your behalf. 

3. Thirdly, ultimately this is my decision.  It is a decision of the umpire in respect of disputes which two people have been unable to resolve between themselves and I can only do the best that I possibly can.  In doing so there is no doubt that you will hear things you do not like from me.  I have no choice but to say it as I see it and I would not be doing the right thing for you, and particularly your children, if I did not do so.  In doing so I try not to be hurtful, but unfortunately, particularly in this case, there are some very strong things which need to be said. 

4. When I decide which facts are those which are appropriate to find, the law says to me that I must decide that not on the criminal basis of beyond reasonable doubt but as to what is more probable than something else.  It is called the balance of probabilities.  That can be done in several ways, but the two main ways are for me, if possible, to make decisions with regard to what my life experience tells me is more probable than the other because I don't leave my life experience behind me when I come through the door of the court.  The second, preferably avoidable way, is to decide either on individual issues or generally that one or other party’s evidence is to be relied on above that of the other.  I regret that this is a case in which I must take both courses and at this stage I look at the second one. 

5. I found Mrs K to be essentially a witness of the truth.  She is a person who, in my view, has gone through an extremely difficult time and in doing so has carried herself as well as I could imagine somebody carrying themselves in those difficult circumstances.  I regret to say the same is not the case with regard to Mr K.  As I will explain in detail in due course, Mr K has embarked on at least four major incidents of violence directed directly against Mrs K but also against her former partner, Mr C.  His bitterness and anger towards his former wife is absolutely palpable and on most occasions at crucial times in his evidence I found that he was not aware of the consequences and significance of what he was doing and saying.  Even with many efforts by me to warn him of the consequences of his evidence he did not seem able to heed those warnings.

6. Accordingly I regret to have to find that on questions of credit generally, unless I find to the contrary, I prefer the evidence on disputed facts of Mrs K over that of Mr K.

7. The parties married in Town D in 1987.  They did not live together prior to their marriage.  They separated on 1 January 2001 and have lived separately and apart since that date.  The circumstances of that separation were indeed torrid and I will come to those in due course.  Mrs K was born in Town D in 1964 and is aged 39.  Mr K was born in Town D in 1960 and is aged 43. 

8. At the time of their marriage there was some degree of discrepancy between them with regard to their asset position.  There is some dispute on the evidence which given the lack of corroboration I find difficult to determine precisely.  On any view, it would appear that Mr K contributed at least $17,000 to the benefit of the family, and on one view of the evidence, it could have been as high as approximately $25,000.  The essential source of the funds was some realty that Mr K had at the time of the marriage to which Mrs K did not contribute, but he also had a car which he ultimately sold. 

9. In terms of the other matter of contribution in the property part of this case, which is perhaps somewhat unusual, there is evidence that Mr K’s mother advanced to the parties a total of approximately $13,000 in three instalments of $5000, $5000 and $3000.  Those are the essential differences with regard to unusual contributions. 

10. Other than those matters, it is common ground that throughout the cohabitation of the parties they essentially contributed equally.  Mr K was essentially engaged as the primary breadwinner for the family and he obviously worked very hard and with great application to his business.  This took a great deal of travelling and involved being away for some nights in a row on a regular basis. 

11. At the time of the marriage Mrs K was employed as a production worker.  She continued that until her confinement with the first of the children to whom I shall shortly refer and since then has been essentially involved as homemaker and parent.  There is no question in my mind that throughout the period of the parties' cohabitation the parties conducted what is essentially referred to as a traditional division of labours with Mr K, as I have said, being devoted to a very high degree to breadwinning and Mrs K to homemaking and parenting.  I will go to the statutory aspect of this in due course.

12. The relationship of the parties during their marriage was on the balance of probabilities less than satisfactory.  I accept the evidence of Mrs K that Mr K was abusive of her, particularly in a verbal and emotional sense.  She does not suggest that there were literally physical assaults by him and she certainly does not run a case under what is known as the Kennon principle with regard to the role of family violence in property cases.  But the ground work for what has occurred in the last few years was undoubtedly there, at least in the latter part of the marriage.  It is clear that Mr K was quite stunned by the breakdown of the marriage, which was initiated by Mrs K, and to this day finds it difficult to understand why Mrs K brought the relationship to an end. 

13. Looking at it from my point of view and given what I have observed of the parties, it must be noted that the breakdown of the marriage is entirely understandable.  Two parties grew apart, probably for various reasons, and at least part of those reasons involved matters of unsatisfactory treatment by Mr K of Mrs K from her point of view.  It is not necessary for me to make any finding with regard to that conduct. 

14. To the extent that Mr K criticises the relationship which Mrs K commenced with Mr C as being the cause of the breakdown of the marriage, the evidence does not satisfy me as to that proposition.  Mr K has clearly blamed Mrs K and therefore Mr C for the breakdown of the marriage.  I am sorry to have to find that I think he is unreasonable in doing so.  Even if that not be the case, nearly three years after the breakdown of that marriage is too long to be dwelling on it.  It is time to move on.  I have to say to Mr K that if he does not move on he is at significant risk of losing a second fine partner.  The risks are significant and it is abundantly clear. 

15. There are two children at the heart of these proceedings.  X was born in 1991.  He is aged 12 years.  Y was born in 1994.  He is aged nine and a half years.  They are the precious children of both parties.  They are loved profoundly by both parties and the damage being done to them is perhaps irretrievable.  It is my most regrettable duty to find that that damage is being done by Mr K. 

16. At the time of the parties' separation Mr K left the matrimonial home at E Street, Suburb F.  Mrs K and the children remained living there.  There was an incident shortly after the separation in which I accept the evidence of the wife that Mr K kicked the door in.  Mrs K and the children left in terror, and rightly so.  There are regrettably three other incidents to which I will shortly turn, particularly in light of the fact that there has been ongoing contact between Mr K and the children to a very high degree. 

17. Essentially the contact for some considerable time has been two out of three weekends from Friday afternoon to Monday morning.  That has continued with very little problem, the fact of no problem being somewhat surprising in all the circumstances of this case. 

18. The problems which have arisen between them started with Mrs K obtaining an intervention order against Mr K under the Crimes (Family Violence) Act not long after the parties' separation.  I think that was in January 2001.  In April 2001 mutual intervention orders were made by consent.  The history has continued.  In particular, Mr K has - and I accept Mrs K’s evidence - threatened to give her the biggest belting of her life, wielded a sledge hammer at her and her brother and sister-in-law, smashed furniture, smashed the windscreen of a motor vehicle when it was in her possession, threatened to kill her in the presence of the children, assaulted Mr C at contact changeover, screamed abuse and called her a "fucking slut" and smashed her camera.

19. Let me speak about several of those incidents in detail.  In August 2002 there was an incident in which Mr K attended at sport for one or both of the children.  Mrs K had a camera with her and she had been advised by the police to take photographs of Mr K to substantiate her allegation that Mr K was breaching the intervention order by being in places where she was.  It appears that Mrs K with Mr C and the children left the venue and were sitting somewhere outside, perhaps in the foyer of the sports centre, and Mr K walked past on his way out.  On his own evidence without provocation from anybody he called Mrs K "a Kelvinator".  It is a term I had not heard before used in that context.  But I was told that it meant that she was frigid.  It would appear that she took at least one photograph of him at that time.  He grabbed the camera.  There is a dispute as to how the camera was taken back again.  I prefer the evidence of Mrs K that he threw it on the ground smashing it. 

20. There was another incident when he deliberately broke the windscreen of a car in the possession of Mrs K.  He told me in evidence that he knew Mr C was driving it and he wanted to deliberately make it unroadworthy so that Mr C could not drive it.  That is a totally unsatisfactory thing to do. 

21. There is another incident which took place in the local police station.  The parties had arranged for contact changeover to take place at the police station.  Inside the police station were Mrs K, Mr C and the two children. Mr. K had delivered the children, was already outside the police station and thought that he saw Mr C make a face at him or mouth some words which he regarded as being provocative.  In the first place, there is no acceptable evidence to satisfy me of that proposition.  Secondly, he was outside the police station on his way out and had no reason to go back inside.  He should have, even if that had happened, turned the other cheek and he did not.  He went back into the police station, went up to face Mr C who stood up and Mr K head-butted Mr C creating a great deal of blood and breaking his nose.  He was arrested by the police, taken away to the cells.  It does not matter if he was handcuffed or not.  That is of no consequence whatsoever. 

22. This was in the presence of the children.  On any view, that is abuse of the children, despite the fact that not a finger was laid on them.  The children could quite properly expect to be traumatised by that event.  The fact that they are so well-adjusted is an absolute credit to Mrs K. 

23. The final incident to which I wish to refer in detail occurred in June this year.  That was a Monday. Mr K had made arrangements directly with the children without consulting Mrs K for the children, or at least one of them, to be with him for sport I think on the Sunday.  They did not turn up.  It was Mrs K one out of three weekends with the children and she was entitled to say what was going to happen then; she did.  There is no criticism to be made of her.  On the Monday morning Mr K went to the children's school.  He wanted to see them and the staff of the school would not let him do so.  Knowing that the children were at school, he then went around to the house occupied by Mrs K.  It appears this was about 9 o'clock in the morning. 

24. His work vehicle is a large vehicle.  Mr C was with Mrs K in the house.  Mr C’s new vechile was parked outside the house.  Mr K lined up Mr C’s vehicle and did approximately $18,000 damage to it by smashing into it.  Mr K then went to the back of his work vehicle and collected a weapon, precisely how described does not matter.  Mr K broke into the house by breaking a window or door and went in threatening Mrs K and Mr C, both of whom ran outside the house.  He chased them down the street.  Mr C got away and Mrs K escaped over the fence of a yard a little way down the street. 

25. Mr K followed her with the weapon and cornered her in the garden in a corner of the fence where she could not escape.  He is a much larger person than she is and I can see that he would also be a strong person.  Standing only a few feet away from her he was threatening her with the weapon held up over her head.  She was terrified.  I accept Mrs K’s evidence that the owner of the house came out and started shouting at Mr K who then collapsed crying, putting the weapon down and realising the absolute profundity of what he was doing. 

26. He was arrested by the police.  He pleaded guilty to various offences and breach of an intervention order.  I think that was the second or third breach of an intervention order.  He was sentenced to jail for over two years.  He had spent I think 82 days on remand, had to serve another five after he was sentenced by a Judge in the County Court and has now presently hanging over his head something in the vicinity of two years of a suspended sentence on various conditions, including attending anger management which I think might be starting reasonably soon.

27. This is some of the worst family violence of its type that I have seen in a long time.  Although Mr K says that he understands the profundity of what he has done, I am not sure that he does.  In over a day in the witness box he was unable to persuade me of that, despite the fact that he was given numerous chances to do so. 

28. Immediately on being released from jail Mrs K agreed to the resumption of contact in accordance with the previous contact arrangement, something which in my view was overly generous by her.  I certainly would have suspended contact on those facts when he got out of jail until he had been to anger management and had psychiatric assessments.  The fact that she did so is a profound credit to her. 

29. Those are the facts with regard to the child areas of the case.  I am now going to proceed to the property areas and return to the child areas with regard to my ultimate decision. 

30. In the area of property there is one major asset, the proceeds of the sale of the matrimonial home.  The figure which I have been given for that is $195,861 of which $30,000 has been distributed to each of the parties previously by way of partial alteration of property interests, leaving a present net amount of $135,861 which is held in trust and I am assuming there is other interest in that which will increase that figure by a little. 

31. The husband has a car valued at $12,000.  There is then the question of the husband's business.  I have referred to the nature of the business.  Mrs K seeks to value that at $35,000 which she comes to as a result of an inspection of the various books of account of the business and which is made up as follows:  stock $22,745, work vehicle $8,000, debtors $9,440; total $40,185, less the liabilities of creditors and a credit card debt.  She comes to a figure of $35,173, but in doing that has left out of the calculations unpaid income tax of $16,185 and unpaid goods and services tax of $3,340.  There are accountant's fees of $3050 and credit card debt of $4311.  Mr K’s calculations based on a similar methodology arrives at a minus value of about $10,000. 

32. I think both means of doing that are invalid in the circumstances of this case and I do not accept either valuation.  In my view, the appropriate way to look at this business is as an income stream.  It provides an income of around about $40,000 a year to Mr K.  I accordingly decline to put any capital into the list of assets.

33. At the time of the separation there was apparently an amount of about $6,000 allegedly taken by Mrs K.  Mrs K says it was $3,000.  The question is whether it should be regarded as an asset.  In my view, it should not be.  The reason for that is that she had to rehouse herself, particularly herself and the children, and in my view, particularly given that she was not in paid employment, needed that money for essentials for living.  I accordingly omit it as an asset.

34. Mr K alleges that Mrs K took stock of his business valued at approximately $15,000.  Mrs K denies it.  This is one word against another.  There is no inventory of the stock beforehand.  There is no inventory of the stock afterwards.  It was kept in the garage of the home while Mrs K was living there and only Mr and Mrs K had the keys.  However, I am not satisfied that that stock was there.  There needs to be an inventory and valuations, both before and after, and until that occurs the issue has not been established and I accordingly omit it. 

35. Mr K has a boat valued at $3,500, superannuation valued at $23,409 and securities investment of $3,300.  Mrs K has superannuation valued at $11,669. 

36. I accordingly find the assets as being the net proceeds of the sale of the matrimonial home, $195,861, noting that it might be a little bit more, car $12,000, boat $3,500, superannuation of the husband $23,409, wife's superannuation $11,669, husband's investment $3,300.  I find the net assets $249,739.  In finding that figure I note the issue of the money of Mr K’s mother, the $13,000 to which I have already referred.

37. I have already noted that there is a question and in fact a contradiction in evidence between Mrs K senior and Mr K with regard to the purpose of the use of that money.  I am not satisfied Mrs K, the wife in this case, knew about that money, and in any event, I do not think it is appropriate to be included as a debt.  It can be included as a financial contribution made directly on behalf of the husband in accordance with the legislation to which I am now about to refer, and I treat it accordingly.

38. Of the $249,739 of the net assets Mr K presently has the sum of $30,000, being money already dispersed, a car of $12,000, a boat of $3,500, his superannuation of $23,409 and the investment of $3,300 being a total of $72,209. 

39. I am empowered to alter the interests of the parties or either of them in their property or the property of either of them as I consider appropriate.  However, I must not make any such alteration unless I consider it just and equitable to do so.  In considering whether it is just and equitable to make an alteration of property interests I am bound by the provisions of section 79(4) of the Act to which I now turn.  The first three paragraphs of that section concern matters of contribution.  The first two paragraphs deal with financial and non-financial, direct and indirect contributions made by or on behalf of the parties to the marriage or either of them to the acquisition, maintenance and preservation of the property of the parties or either of them.  The third of the paragraphs deals with the contribution as homemaker and parent to the family constituted by the parties and their children.

1. It is common ground that throughout the parties' cohabitation the contributions were equal.  I think that is correct, except for, in my view, the fact of the grandmother's money and the question of the initial contribution by Mr K to which I have already referred.  That initial contribution ultimately found its way into the matrimonial home at time when Mrs K was also making a financial contribution by way of her income from her production work to which I have already referred.

2. Neither party suggests that I should be treating this matter other than globally.  This is in accordance with the decision of the High Court in Norbis v Norbis (1986) FLC.  I also note that I am to treat the contribution as homemaker and parent as substantial and not in a token way in accordance with the decision of the High Court in Mallett v Mallett (1984) FLC. 

3. In deciding what might be called "special contributions", that is the initial contribution by Mr K and the grandmother's contribution, it is not necessary for me to take a dollar by dollar mathematical calculation.  In my view, it is appropriate that Mr K be given some credit for both of those contributions and accordingly I find that globally as between the parties contributions are to be found as being 55 per cent in favour of Mr K and 45 per cent in favour of Mrs K.

4. There is no other order affecting the children or parties which might be of significance in these proceedings.  I then to turn to the various matters contained in section 75(2).  Obviously the most important matter is the fact that Mrs K has the overwhelming responsibility of providing for the children.  Even if appropriate child support were being paid by Mr K, that would be a very significant matter which, in my view, would warrant an adjustment of at least 10 per cent.  Given that Mr K has a debt to child support of about $10,000 and his attitude to Mrs K and the payment of child support directly to her being extremely poor, in my view, that is a very important matter indeed.

5. The issue of child support has been dealt with quite a bit during these proceedings.  Mr K has paid school fees for the children to attend the agreed school.  However, in review proceedings before the Child Support Registrar the matter was taken into account and the arrears of $10,000 approximately have been taken into account in assessing child support in the way that it has, such as to yield arrears of approximately $10,000.  I regret to have to say from his evidence I really have almost no confidence that Mr K will be prepared to pay child support directly for Mrs K.  His attitude towards her remains extremely negative and unsatisfactory.  I also take that matter into account.

6. During his final address counsel for the husband submitted that I should find contributions to be 70-30 in favour of the husband and with 20 per cent in favour of the wife for 75(2) factors.  While I understand that the 20 per cent was from a lower base and that is to be taken into account, in my view it remains appropriate to make an adjustment of 20 per cent, particularly because of the child support issue, the disparity in income which is as to around about $40,000 a year for Mr K as against family allowance and appropriate supporting parent's benefit for Mrs K.  I note that she will attempt to find employment and I think she is resourceful enough to do so, at least part‑time.  I do not know what the employment possibilities are here in Town D, but I make no criticism of her for not having done so.  She has been in difficult circumstances since the parties' separation, particularly with the onslaught, at least metaphorically and at times literally, that has been directed towards her by Mr K, and she cannot be criticised, in my view, for not obtaining employment.

7. However, she is not skilled in the workforce, whereas Mr K has a long-standing established business and accordingly a disparate income between them can be expected to be maintained for at least many years to come, if not for the indefinite future.  Accordingly, in my view, it is appropriate that the adjustment as between them should be as to 65 per cent to Mrs K and 45 per cent to Mr K.  Given that Mr K has just over $72,209 of assets, 35 per cent of $249,739 is $87,408.  I do not need to be precisely accurate.  Mr K is to receive from the moneys which are deposited in trust the sum of $15,200 and the balance is to be paid to Mrs K.

8. Let me now return to what is the important aspect of this matter and the difficult aspect of this matter, and that is, the children's issues.  It is quite clear that the children are to live with Mrs K.  That is no longer challenged, although this was an equal sharing residence case at one stage.  In considering the question of the children the legislation requires me to regard the children's best interests as the paramount consideration.  I am to take into account the various matters in section 60B and particularly the principles contained in that.  They include that parents should share in the upbringing of their children.  That does not necessarily mean equal sharing.  It also requires parents to retain the duty and responsibility for the care of their children subject to their best interests.  However, those principles are subject to my not finding that they are contrary to the children’s best interests

9. In considering those best interests I am required to take into account the various factors in section 68F(2).  In this regard I must refer to the affidavit of Mr G, psychologist.  Mr G was cross‑examined during these proceedings, appearing by video.  The first matter that I must take into account are the wishes of the children.  Mr G referred to those wishes as being to spend more time with their father.  The status quo is important; that is, the primary care of the children has been with Mrs K since the parties' separation, although with significant contact with their father despite the fact of his conduct to which I have referred. 

10. The attitude of the parties towards the parenting of their children is a very important differentiating factor.  I must also consider questions of abuse and family violence, and I am dealing with those together.  There is never a situation in which children are not involved in family violence.  It matters not one iota that throughout the nearly three years of the parties' separation Mr K has not laid a finger on them.  They have witnessed family violence against their mother, and particularly their mother's partner, and in particular that appalling assault at the police station.  They know that their father has been in jail for serious criminal offences against their mother. 

11. One of the children made a very poignant statement saying that Mr K had Ms H and he did not see why Mrs K could not have Mr C.  I think that is a statement that needs to be listened to because it says it all in one simple childlike question.  I accept Mrs K’s evidence that Mr K has destroyed the relationship between Mrs K and Mr C.  To the extent that Mr G is critical of Mrs K for not telling him the truth about that relationship, I do not find that surprising.  With everything that Mr K has perpetrated against Mrs K it is hardly surprising that Mrs K wanted to minimise her relationship with Mr C on the basis that she had every reason to believe that were she not to do so she would put both herself and Mr C at even greater danger than they have been for the last several years.

12. I regret that I must take a very different view of this case to that taken by Mr G in his reports.  Of course, Mr G did not have access to the facts to the degree which I have had and it is also not his task to make decisions on who is telling the truth.  However, Mr K’s lack of insight into the significance of his own behaviour, even when he was given the opportunities to which I have referred above, was apparently not evident to Mr G.  I think that that lack of self awareness by Mr K is fundamental to this matter.  It was put to Mr G during cross-examination and he clearly recognised its significance.  With the greatest of respect, on all of the material I cannot see how this matter could ever have been one in which equal sharing of residence or anything close to that might have been in the best interests of either child.

13. The question of contact between Mr K and the children is, in my view, extremely difficult.  There are a number of authorities in this area, but perhaps not one more poignant than the decision of the Court of Appeal of England constituted by Dame Ann Elizabeth Butler-Sloss, the President of the Court of Appeal, with Thorpe and Waller LLJ in Re L; Re V; Re M; Re H reported at (2000) 2 Fam LR 334. I do not propose dealing with details of that judgment, but as a statement of the principles relating to family law and family violence it is compelling reading. It makes it clear that that balance between the need of children with an apparently good relationship with their contact parent to have ongoing contact and the effects of family violence on a family is a very difficult balancing act for a judge.

14. I find this one of the more difficult cases of its kind.  Part of me says that until such time as Mr K has undergone serious therapy to face and redress his problems of family violence the contact he should have with his children should be no more than at a contact centre.  That is two hours once a fortnight at an institution.  But I have decided that is not appropriate for the children.  I have to be careful about not punishing the children for the acts of their father and I must not punish the father for what he has done either.  But I need to say to him that the ways in which he has acted, he is a completely inappropriate role model for his children.  While he was in the witness box - and I have just seen him shake his head at that point- despite the number of opportunities he was given, he did not demonstrate to me a perception that he was able to fix it. 

15. To his benefit I have in fact come to the conclusion that it is extremely unlikely that he would physically hurt his children.  That is the thing that has saved him from an order for the most minimal contact.  I think I need to demonstrate to him that he needs to get professional assistance.  In order to do that I am going to reduce the contact.  I am not only going to reduce the contact but I am going to have it supervised by his partner, Ms H, who is one of the most positive influences on his life that I can imagine.  Mr K needs to listen to Ms H because she is a person of understanding, perception, insight and commonsense.  I think that she is for the best, particularly for these children, but also for Mr K.  She is sitting in court and heard this and I am not saying it just for her purpose.  I am saying it for Mr K.

16. I am required in considering the orders that I make to act, as I have said, in the best interests of the children.  They clearly will live with Mrs K.  Given the appalling relationship between the parties there is absolutely no point in having Mr K involved in any of the duty and responsibility of making decisions, either long-term or day‑to-day, except day-to-day when they are with him for contact.  Accordingly, there will be long-term and day-to-day care, welfare and development solely to Mrs K. 

17. I have decided on the following contact orders: commencing tomorrow between 10 am and 8 pm on one day of each alternate weekend for December and January; 12 noon to 6 pm on Christmas Day; from February the contact will increase to 10 am to 6 pm on Sunday of each alternate weekend commencing in the first week of February 2004 until the matter comes on before me.  These are interim orders.  They are subject to the supervision of Ms H at all times, the arrangement for transport of the children at the commencement and conclusion of contact to be between Ms H and Mrs K to the exclusion of Mr K and in the event that Ms H is unable to perform any of the duties provided in these orders she is to forthwith advise the wife of that fact and the wife to be thereupon authorised to suspend contact for any such period.

18. As soon as practicable Mr K will be required to attend a psychiatrist at his expense for the purpose of assessment and preparation of report for the court and any therapy which he or she might reasonably recommend, otherwise further extent applications will be adjourned part‑heard before me in the Melbourne registry of the court.  I think it will be on 11 February 2004 estimated for one to two days.  I will reserve liberty to apply and any application with regard to the above orders to be made to me in the first instance, if reasonably available. 

19. On matters of alteration of property interests, of the sum of $135,000 there shall be distributed to Mr K the sum of $15,200 and the balance to Mrs K.  As between the husband and the wife, all other property vests in the party who is presently having possession.

20. I hand down to counsel a draft of orders which are incomplete.  I am going to stand down for a few minutes to enable counsel to consider these matters.  They may make submissions to me with regard to the orders, although I have made the decisions in this case, but I will hear submissions with regard to the form of orders and any other matter, particularly with regard to the identity of a psychiatrist and timing of the report if it can be ready by February.  I understand that certain inquiries have been made and counsel have been advised.

I certify that this with the preceding 59 paragraphs
are a true copy of the Reasons
for Judgment delivered by Justice
Mushin on 5 December, 2003.

Associate