LAFFY & ABBOTT

[2016] FCCA 65

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAFFY & ABBOTT [2016] FCCA 65

Catchwords:
FAMILY LAW – Parenting – where both parties seek orders for the primary care of the parties’ two children – where the children’s primary attachment is with the husband – where the wife makes allegations of alcohol abuse against the husband – where these allegations are denied. HELD – children live with the husband and spend regular time with the wife.
FAMILY LAW – Property – orders made by consent – where the husband has primary care for the parties’ two children – where the wife has a superior earning capacity – orders made for 65/35 per cent division of the proceeds of sale of the former matrimonial home in favour of the husband and for an equalisation of the parties superannuation entitlements.

Legislation:

Family Law Act 1975 (Cth), s.75(2), ss.60B, 60CA, 60CC(2) and 60CC(3),61DA, 65DAA, 90MT(1)(a)

Applicant: MR LAFFY

Respondent: MS ABBOTT

File Number: MLC 518 of 2015

Judgment of: Judge Bender

Hearing date: 16 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Melbourne

Delivered on: 21 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Mort of Counsel

Solicitors for the Applicant: O’Farrell Robertson McMahon

Counsel for the Respondent: Ms Stoikovska of Counsel

Solicitors for the Respondent: Cantwell Family Lawyers

ORDERS

1. The Husband and Wife retain equal shared parental responsibility for the children X born (omitted) 2009 (‘X’) and Y born (omitted) 2012 (‘Y’).

2. X and Y live with the Husband.

3. X and Y spend time and communicate with the Wife as follows:

   During the school term:

   (a)Each alternate weekend from after school/kindergarten Thursday to before school/kindergarten Monday or Tuesday if Monday is a non-school day/kindergarten day;

   (b)From after school/kindergarten Thursday to before school/kindergarten Friday in the alternate week;

   School Term Holidays:

   (c)For half of each school term holidays as agreed between the parties but failing agreement:

   (i)     For the first week in 2015 and each alternate year thereafter from the conclusion of school term until 12 noon on the second Saturday;

   (ii)    For the second week in 2016 and each alternate year thereafter from 12 noon on the second Saturday until the resumption of school term.

   Children’s Birthdays:

   (d)In the event of X or Y’s birthday falling on a school day, from the conclusion of school on that day until 6.00pm provided that in the event of such day falling during a day on which the children are due to spend time with the Wife then such time shall be suspended to enable the children to spend time with the Husband for the equivalent period of time.

   (e)On Y’s birthday or X’s birthday if such birthday falls on a non-school day, then for half of such day as agreed between the parties but failing such agreement from 10.00am until 4.00pm provided that in the event of such birthday falling during the Wife’s time with the children, such time shall be suspended to enable the children to spend time with the Husband for the equivalent period of time.

   Mother’s Day

   (f)For Mother’s Day from 5.30pm on the Saturday preceding such occasion until 5.30pm on Mother’s Day.

   Long summer holidays

   (g)For half of the long summer school holidays as agreed between the parties but failing agreement as follows:

   (i)On a week about basis, as agreed and failing agreement for the first week in odd numbered years and each alternate year thereafter and the second week in even numbered years and each alternate week thereafter (and with the Wife in the other week) with the first changeover during the holidays to occur at 3.00pm on Christmas Day;

   (ii)From 2017 and each alternate year thereafter:

   A.From the conclusion of school term until 3.00pm  Christmas Day; and thereafter

   B.

   From 12 noon on 9 January, 2018 until 12 noon

   
   

   24 January 2018;

   (and with the Husband for the balance of the holiday period)

   (iii)From 2018 and each alternate year thereafter:

   A.

   From 3.00pm on Christmas Day until 12 noon on

   
   

   9 January 2019;

   B.From 12 noon on 24 January 2019 for the balance of the holiday period;

   (and with the Husband for the balance of the holiday period)

   Telephone Contact

   (h)Both parents be at liberty communicate with the children by telephone at all reasonable times and the party who is caring for children shall facilitate such telephone communication by ensuring the parties mobile telephone is switched on between 6.00pm to 7.00pm.

   (i)As otherwise agreed between the parties in writing.

4. For the purposes of paragraphs 3 hereof:

   (a)All times pursuant to paragraph 3(a) be suspended during all school holiday period and resume in accordance with the usual cycle as if the holiday period had not intervened.

   (b)All changeovers shall occur at school/kindergarten, as applicable and otherwise failing agreement the parent who is commencing time with X and Y shall collect them from the residence of the other parent.

5. Each party:

   (a)Keep the other advised at all times of their current residential address and telephone number for X and Y.

   (b)Advise the other immediately in the event of either X or Y suffering any serious illness or injury or requiring emergency medical and dental treatment.

   (c)Advise any medication X and Y are to take whilst they are in the other parent’s care including dosage requirements.

   (d)Authorise any medical practitioner upon which X and Y may attend from time to time to communicate with the other party in respect of their medical condition and/or requirements.

   (e)Authorise all schools, kindergartens and childcare centres at which X or Y may attend to:

   (i)Provide the other party, at the expense of the other party, copies of all reports, notices and photographs in relation to X and Y.

   (ii)Communicate with the other party either by telephone, in writing or by personal attendance in respect of X and Y’s progress.

   (iii)Subject to any school/kindergarten policies allow the other party to attend all functions to which parents are normally invited.

   (f)Continue to engage Dr J or his nominee for the children’s general medical treatment.

6. In the event that either party wishes to travel overseas with X or Y the travelling party shall:

   (a)Provide the other parent written notice of the proposed dates of travel no less than 45 days prior to the proposed travel; and

   (b)Provide the other parent with a full itinerary including details of where X and Y will be residing for the duration of the overseas travel and a contact number on which they can be contacted no less than 28 days prior to the proposed travel; and

   (c)Provide the other parent with proof of the purchase of return tickets no less than 28 days prior to the proposed travel.

7. X and Y’s passports shall be held by the Wife’s solicitors and shall be released to the travelling party within 7 days of the travelling party providing the Wife’s solicitor with proof of their compliance with Orders 6 (a), (b) and (c) herein and the travelling party shall return X and Y’s passports to the Wife’s solicitor within seven days of the travelling party returning to Australia.

8. In the event that either parent proposes to take X or Y on holidays interstate, such parent shall provide the other with seven days’ notice in writing prior to departure including all contact details.

9. Y be enrolled in four year old kindergarten in 2016 to attend no less than two days per week as directed by the kindergarten Program Manager.

10. Each party, their servants and agents be hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their household in the presence or hearing of X and Y or permitting any other person to do so.

    (b)Changing X or Y’s school/kindergarten/childcare, save that X and Y shall be enrolled at a (omitted) Second School, with the particular (omitted) school to be agreed between the parties.

11. The Husband is restrained by injunction from consuming alcohol when X and Y are in his care and eight hours prior thereto.

12. Unless otherwise agreed in writing the Wife is to continue as X and Y’s (omitted).

13. The parents shall communicate with each other and respond as promptly as practicable as to parenting issues by email or SMS messaging.

14. The Wife be at liberty to baptise Y and that both Y and X participate in receiving the sacraments of Communion and Reconciliation, with the Wife to provide the Husband with notice and further he be at liberty to attend such occasions.

15. The Wife be at liberty to enrol X and Y in (language omitted) classes at her expense.

16. Prior to Y’s seventh birthday the parties attend for further mediation with a view to discussing and reconsidering the ongoing living arrangements for X and Y.

Property Orders

1. The balance of the net proceeds of the sale of the former matrimonial home situate at and known as Property T held in trust by the Husband’s solicitors on behalf of the parties (approximately $342,000 plus interest) to be divided as follows:

   (a)The sum of $50,000 to each party to be released forthwith to their respective solicitors save that one half of Mr L’s fee for attendance to Court shall be reimbursed to the Wife from the Husband’s share, noting such amount was released to the parties on or about 18 September 2015;

   (b)The balance to be divided to reflect an overall division of:

   (i)             35 % to the Wife

   (ii)            65 % to the Husband

2. The Husband and the Trustee of the (omitted) Super Fund (“the Fund”) do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to the Orders hereunder.

3. Paragraphs (20) to (24) inclusive of these Orders bind the Trustee of the Fund.

4. That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever the Trustee of the Fund makes a splittable payment from the interest held by the Husband and Trustee:

   (a)From the interest of the Husband the Fund shall allocate to the Wife the specified amount being $39,332 to provide for an equal division of super between the parties of the interest held by the Husband as member spouse in the Fund; and

   (b)Make a corresponding reduction in the entitlement the Husband would have had in the Fund but for these Orders.

5. That Order 20 has effect from the operative time.

6. The operative time for the purpose of these Orders is four business days after service of the Orders upon the Trustee.

7. That upon receipt by the Wife of the payment split notice issued by the Trustee pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Wife exercise her election pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 to request the Trustee to rollover or transfer the transferable benefits as defined by r.1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 including the existing superannuation benefits, if any, of the Wife in the Fund to another fund of the Wife’s choosing.

8. Until the happening of any of the following (whichever is the earlier):

   (a)The transfer or rollover, to another Fund of the Wife’s choosing, of the transferable benefits; or

   (b)The Wife satisfies a condition of release in accordance with Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994;

   the Husband be and is hereby restrained by himself, servants or agents from executing a binding death benefit nomination in favour of any person or from doing any such act or thing which would render any part of his interest in the fund a non-splittable payment within the meaning of r.12 or 13 of the Family Law (Superannuation) Regulations 2001.

9. There be liberty to each party and to the Trustee to apply in relation to the implementation of the Orders affecting the superannuation interest.

10. Having been accorded procedural fairness in relation to the making of these Orders, these Orders are binding on the Trustee of the Fund.

11. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

    (a)The Husband and the Wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, shares, equities, superannuation entitlements and person effects currently in the possession or control of each of them respectively;

    (b)Each party retain absolutely any superannuation benefits, long service leave, sickness payments or other employment entitlements belonging to or earned by them.

    (c)Money standing to the credit of the parties in any joint bank account is to become the property of the Husband.

    (d)All insurance policies to become the sole property of the life insured named therein.

    (e)Each party to be solely liable for and indemnify the other party against any liability encumbering any item or property to which that party is entitled pursuant to these Orders.

    (f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

    (g)Each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

AND THE COURT NOTES:

AHoliday periods shall be calculated from the conclusion of school on the last day of school term to the commencement of school on the first day of the next school term.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BENDIGO

MLC 518 of 2015

MR LAFFY

Applicant

And

MS ABBOTT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to the parties application for both parenting and property orders following the breakdown of their marriage.

2. At the commencement of the hearing of this matter the Court was advised the parties had reached an agreement for the division of their property. The agreement reached by the parties is that there by an equalising of their superannuation entitlements and otherwise the net proceeds of sale of the former matrimonial home be divided on a 65/35 basis in the Husband’s favour if their children X born (omitted) 2009 (‘X’) and Y born (omitted) 2012 (‘Y’) live primarily with the Husband or on a 50/50 basis in the event X and Y live primarily with the Wife.

3. Accordingly the matter proceeded on the basis of parenting matters only.

4. The Husband is seeking orders that the parties have equal shared parental responsibility for X and Y, that they live with him and spend time with the Wife each alternate week from after school Thursday to before school Monday or to before school Tuesday if Monday is not a school day and from after school Thursday to before school Friday in the intervening week.

5. The Wife also supports orders being made that she and the Husband have equal shared parental responsibility for X and Y. She is seeking orders that X and Y live with her and spend time with the Husband each alternate week from 9.00am Saturday to 5.30pm Tuesday and from 8.30am Monday to 5.30pm Tuesday in the intervening week.

6. The Wife, who was born in (country omitted) and whose family continue to reside in (country omitted) is also seeking orders that permit her to take X and Y overseas and specifically to (country omitted) for four weeks in any two year period.

7. The Husband is opposed to Orders being made that would enable X and Y to travel to (country omitted) and seeks that X and Y be placed on the Commonwealth Airport Watch List.

8. To the parties’ credit, they were able to agree on X and Y’s living arrangements for school holidays and special occasions as well as their education and religion. A detailed minute reflecting their agreement was given to the Court at the conclusion of the evidence.

Background

1. The Husband was born on (omitted) 1965 and is aged 50 years. He is employed on a part time basis Wednesday to Friday as a (occupation omitted). He has not re-partnered.

2. The Wife was born on (omitted) 1973 in (country omitted). She is aged

   
   

   42 years. The Wife is a self-employed (occupation omitted) working on a contractual basis with the (employer omitted). The Wife works three days a week from Monday to Wednesday and has not re-partnered.

3. The parties met in Brisbane in early 1999. The Wife permanently moved to Australia and the parties’ commenced co-habitation in (omitted) 1999 in Brisbane. The parties were married on (omitted) 2000. The Wife became an Australian citizen on (omitted) 2005.

4. The parties relocated to Melbourne in 2003.

5. The Wife, was a qualified (occupation omitted) in (country omitted). Her qualifications were not recognised in Australia so she initially worked as a (occupation omitted). In (omitted) 2006 the Wife completed her Australian accreditation as a (occupation omitted) and commencement employment as a (occupation omitted).

6. In or about 2005 the parties purchased land in (omitted) on which they constructed the former matrimonial home as owner/builders. They moved into the former matrimonial home in 2008. The Husband and other tradesmen continued to complete construction of the former matrimonial home after the parties moved in.

7. When X was born the Wife took three months maternity leave and then returned to work on a part time basis.

8. When X was approximately ten months of age the parties agreed that the Husband should resign his employment to enable him to complete the former matrimonial home.

9. The care arrangements for X thereafter was he was in day care Monday and Wednesday, the Husband cared for him Tuesday and Thursday and he was with the parties on Friday, Saturday and Sunday.

10. After Y was born the Wife took six months maternity leave. During this period the Husband took a four month short term contract working four days a week.

11. The Wife returned to work in or about July 2012 for a half day on Saturday and gradually increased her working hours such that she worked Monday to Thursday from 2013. During this period X continued in day care Monday and Wednesday. From 2013 Y also attended day care on Monday and Wednesday.

12. The parties separated under the one roof on 17 December 2014.

13. Following separation the Wife reduced her working hours to Monday to Wednesday and the Husband obtained part time employment working with (employer omitted) working Wednesday to Friday.

14. The Husband was made redundant from (employer omitted) in April 2015 and has since obtained employment as a (occupation omitted) with (employer omitted). He is still working part time Wednesday to Friday.

15. On 3 May 2014 the parties attended upon Mr T for mediation. The parties entered into a parenting plan which provided that X and Y  would remain in childcare/kindergarten Monday and Wednesdays, the Husband would care for them on Tuesday, the Wife would care for them on Thursday and Friday and they would spend alternate weekends with the parties.

16. On 19 May 2014 the Husband unilaterally removed Y from childcare on Mondays and she remained in his care on Mondays whilst X attended kindergarten. This arrangement continued until the physical separation of the parties in July 2015.

17. It is the Wife’s evidence that the Husband is and was during the relationship a heavy drinker consuming an average of five beers and four glasses of wine every night from 5.00pm until he went to bed. The Wife deposes to many occasions during the marriage when the Husband became so intoxicated he passed out and she had to put him to bed.

18. The Husband adamantly denies he was or is a heavy drinker. It is his evidence he would have a beer whilst watering the lawn, a beer whilst cooking dinner and would, on occasion, share a bottle of wine with the Wife over dinner. He denies ever becoming so intoxicated that he passed out.

1. There was an incident on 30 March 2014 which resulted in the Wife calling the Police and the Police making an Application for an Intervention Order on the Wife’s behalf. It is the Wife’s evidence the Husband became increasingly intoxicated during the evening. It is her evidence the Husband was verbally abusive to her in front of the children, demeaning her cooking and parenting and screaming at her not to speak (language omitted) to the children. It is her evidence the Husband grabbed her and was shaking her. As a result of the Husband’s behaviour the Wife felt unsafe and called the Police.

2. On 30 March 2014 the Police issued a Safety Notice which required the Husband to vacate the former matrimonial home on that evening. The parties attended the Magistrates’ Court at Castlemaine on

   
   

   31 March 2014 when the Intervention Order application was made. An Interim Intervention Order was issued and the matter otherwise listed for hearing in April 2014. The Husband returned to the former matrimonial home on 31 March 2015.

3. On 28 April 2014 an Intervention Order was made against the Husband for the protection of the Wife without admission for a period of three months. The Intervention Order provided that the Husband was not to commit family violence, that he not consume alcohol at Property T or be intoxicated at that address or in the presence of the Wife or the children. The Order also required the Husband to comply with a Random Breath Test Order at Property T if requested to do so by the Police.

4. [1] Paragraph 41 of the Husband’s Affidavit sworn and filed 17 August 2015.

   The Husband denies he was drinking to excess on the evening of

   
   

   30 March 2014. It is his evidence that whilst he and the Wife argued, it was the Wife who was the antagonist on this evening. It is the Husband’s evidence he believes the Wife’s application was

   
   “ill-conceived and primarily motivated by Ms Abbott’s desire to exclusively occupy the home and also in contemplation of a parenting application for primary care of the children. I say that Ms Abbott’s concerns about my alcohol consumption are not made in good faith.”[1]

5. In the Victoria Police LEAP Summary Incident Report from 30 March 3014 it states:

   “Police attended and found the Respondent heavily affected by                 alcohol.”

   In the Safety Notice Form completed by the Police on

   
   

   30 March 2014 and in the Application for an Intervention Order filed by the Police on 31 March 2014 it is stated:

   “…the Respondent was moderately affected by alcohol.”

6. The Husband filed an Initiating Application on 27 January 2015 seeking both parenting and property orders.

7. On 3 March 2015 interim consent orders were made which provided for the parties to have equal shared parental responsibility for X and Y and for the parties to attend upon an agreed psychologist for the preparation of a family report. Order 9 of the Interim Order also provided that the parties be restrained from consuming alcohol during any time X and Y were in their respective care.

8. The 3 March 2015 orders also contain the following notations:

   A.A parenting plan was drafted in Mediation on 3 May 2014 and the parties intend to rely on it pending further Order of the Court, noting Y no longer attends day care on Mondays.

   B.The Husband and the Wife deny the necessity for paragraph 9 herein.

9. It is the Wife’s evidence that after the expiration of the Intervention Order, the Husband resumed regularly consuming alcohol to excess, often returning to the former matrimonial home late at night smelling of alcohol. It is her evidence that friends told her they had seen the Husband at the hotel drinking to excess on several occasions during this period.

10. The Husband denies the Wife’s allegations that he “resumed” drinking to excess or regularly attending at the hotel. It is his evidence that he was usually home from work by 5.00pm and on most nights would be in bed by 8.00pm/9.00pm.

11. It is the Wife’s evidence that on Sunday 17 May 2015 the Husband returned to the former matrimonial home at approximately 7.30pm in a drunken state. It is the Wife’s evidence the Husband tried to play with X but was only able to lie on the lounge room floor and barely move. The Husband then went to bed. It as the Wife’s evidence that X in particular was so concerned about the Husband that he and Y insisted on going to the Husband’s room where they yelled at the Husband for 5-10 minutes begging him to wake up before the Husband responded.

12. There was then heated exchanges between the parties with the Wife loudly berating the Husband for being drunk and the Husband accusing the Wife of being unable to look after the children. This all took place in front of X and Y.

13. The Husband denies he was drunk when he returned to the former matrimonial home on 17 May 2015. It is his evidence that X and Y were in the Wife’s care that weekend. It is his evidence when he got home he lay on the lounge room floor with head phones on to relax and to relieve his lower back pain. He then went to bed to avoid any conflict with the Wife. It is his evidence the Wife brought X and Y to his room rather than putting them to bed in an endeavour to provoke an argument and to obtain evidence for the upcoming trial.

14. It is the Husband’s evidence he pretended to be asleep when X and Y were calling to him in the hope it would stop them being exposed to conflict between he and the Wife. When it became apparent the Wife, X and Y were not going to leave his room he got up and attended to X and Y.

15. On the evening of 17 May 2015, the Police were called and attended upon the former matrimonial home at approximately 10.00pm. They spoke to both parties. The Victoria Police Subpoenaed records from

    
    

    17 May 2015 contain the “Action Pad” which states the following:

    “…Abbott advised her husband had consumed alcohol tonight and she believed he was in breach of a Family Law Court order which stated neither party must consume alcohol whilst children are in their care.

    Abbott stated both parties were separated and currently living under the same roof until their house sells. Abbott stated that the children were in her care this weekend. Abbott stated that there has been no argument, threats or damages tonight…”

16. On 17 May 2015 the Wife recorded the exchanges between herself, the Husband and X and Y and took a brief video of the Husband lying on the floor on her iphone.

17. The Wife’s video and recording were played to the Court and to the report writer, Mr L.

18. In mid-2015 the parties sold the former matrimonial home and settlement took place in July 2015. After the parties physical separation, X and Y’s living arrangement have been as follows:

    (a)With the Wife:

    (i)Week One: before school/childcare Wednesday to before school/childcare Monday; and

    (ii)Week Two: before school/childcare Thursday to 9.00am Saturday.

    (b)With the Husband:

    (i)Week One: before school/childcare Monday to before school/childcare  Thursday; and

    (ii)Week Two: 9.00am Saturday to before school Wednesday.

The Evidence

The Husband

1. The Husband relies on his affidavits sworn 21 January 2015, 12 May 2015 and 17 August 2015. The Husband also gave viva voce evidence at the Final Hearing.

2. It is the Husband’s proposal that the parties have equal shared parental responsibility for X and Y, that they live with him and spend time with the Wife each alternate weekend from afterschool Thursday to before school Monday or before school Tuesday if Monday is a non-school day, from after school Thursday to before school Friday in the alternate week, and for half school holidays and special occasions.

3. The Husband’s proposal reflects the recommendations contained in the Family Report of Mr L.

4. The Husband agrees that prior to the release of Mr L’s report he was proposing that the current shared care arrangement continue but that his proposal now reflects the recommendations of Mr L as he has taken on board the basis for those recommendations and accepts them.

5. It is the Husband’s evidence that he was the primary carer of X and Y during the marriage as by agreement with the Wife he resigned from his employment as a (occupation omitted) when X was about ten months of age so that he could work on completing the former matrimonial home which was being constructed by them as owner/builders. This meant he was available to care for X and later Y whilst the Wife returned to work.

6. It is the Husband’s evidence that the parties agreed this was the best way forward as the Wife’s income earning capacity as a (occupation omitted) was much greater than his and because he had the skills and the expertise to be able to substantially contribute to the completion of the former matrimonial home at considerable savings to the parties.

7. It is the Husband’s evidence that he has a very close and loving relationship with X and Y, as does the Wife.

8. It is the Husband’s evidence that he and the Wife’s parenting styles are quite different. It is the Husband’s evidence that he is much more hands on and involved in activities with X and Y whilst the Wife is more of a disciplinarian and the party who was and is responsible for making the practical arrangements for X and Y such as doctor’s and dentist appointments and social activities.  

9. It is the Husband’s evidence that he and the Wife have difficulties in communicating with each other. This was particularly so when they were separated under the one roof. It is the Husband’s evidence that during this time he minimised his interactions with the Wife as much as possible as he felt she was deliberately misinterpreting or using what he said for the purposes of this litigation. He described the Wife taking every opportunity to interpret what he said or did as a “gotcha moment.”

10. The Husband adamantly denies the Wife’s allegations that he drank heavily each night during the relationship and when they were separated under the one roof or that there were occasions that he was so inebriated that the Wife had to put him to bed.

11. It is the Husband’s evidence that he would have a beer whilst watering the garden and another whilst preparing dinner and that prior to separation there would be occasions where he and the Wife would share a bottle of wine whilst they were having dinner.

12. After separation under the one roof, the Husband is adamant that he was not drinking heavily and in particular denies the Wife’s allegations in relation to the specific instances in March 2014 and May 2015 which resulted in the Police attending at the former matrimonial home.

13. It is the Wife’s evidence that she believes that the Husband is embroiling X and Y in the parties’ separation and deliberately manipulating them and particularly X to choose the Husband over her. The Wife also alleges that the Husband berates her, her family and X and Y's (nationality omitted) heritage in front of X and Y.

14. The Husband adamantly denies these allegations of the Wife. It is his evidence that it is the Wife who has embroiled the children in the adult issues following separation. By way of example the Husband points to the Wife bringing the children up to his room after he had gone to bed on the night of 17 May 2015 in circumstances where their agreement was that they were in her care that evening. He highlights the Wife screaming at him that he is drunk and incapable of looking after the children as examples of the Wife trying to denigrate him to X and Y.

15. The Husband agrees that he has asked the Wife to speak to X and Y in English when he is there as he does not speak (language omitted) and therefore does not know what the Wife, X and Y are talking about. The Husband points to this as an example of the Wife trying to exclude him from a relationship with X and Y.

16. The Husband refutes the Wife’s allegation that he does not respect her (nationality omitted) heritage. The Husband agrees however that he does not get on with the Wife’s Father in particular and that it was his refusal to have the Wife’s family stay with them in the former matrimonial home for an extended period of time in March 2014 that caused the parties to separate.

17. In relation to X and Y travelling overseas, it is the Husband’s evidence that he believes (country omitted) to be an unsafe place and that there is a genuine risk of X and Y being kidnapped if they were to travel there with the Wife to visit her family.

18. The Husband also expresses concern that if the Wife is permitted to travel overseas with X and Y to somewhere other than (country omitted), once she had left Australia there would be nothing to prevent her from travelling to (country omitted) from the country of her initial destination.

19. Further, it is the Husband’s evidence that he harbours concerns that if permitted to travel to (country omitted), the Wife may not return to Australia. 

20. It is the Husband’s evidence that whilst (country omitted) is a signatory to the Hague Convention, he has concerns that if the Wife were to remain in (country omitted) it would be an expensive and difficult process to obtain the requisite Orders for X and Y’s return to Australia.

The Wife

1. The Wife relies on her affidavit sworn 27 February 2015, 16 April 2015 and her trial affidavit sworn 28 August 2015.

2. The Wife also gave viva voce evidence at the final hearing.

3. The Wife also relies upon her affidavit of Ms C sworn 10 April 2015. Ms C gave viva voce evidence by telephone from (country omitted) at the final hearing.

4. It is the Wife’s proposal that that the parties have equal shared parental responsibility for X and Y, that they live with her and spend time with the Husband each alternate weekend from 9.00am Saturday morning to before school Tuesday and from 8.30am Monday to 5.30pm Tuesday in the alternate week as well as half school holidays and special occasions.

5. The Wife strongly refutes the Husband’s claim to have been X and Y’s primary carer.

6. It is the Wife’s evidence that she took maternity leave for three months after X was born and six months after Y was born during which time she was primarily responsible for the care of the children.

7. It is the Wife’s evidence that when she returned to work, X and Y were in day care for two days a week, in the Husband’s care on Tuesdays and Thursdays and that she was primarily responsible for them Friday, Saturday and Sunday whilst the Husband was fully occupied working on the former matrimonial home.

8. It is the Wife’s evidence that she was the parent who was responsible for making all the practical arrangements for X and Y including doctor’s appointments, dentist appointments, immunisations, kindergarten, school and playdates.

9. In paragraphs 103 and 104 of the Wife’s trial affidavit the Wife sets out her concerns in relation to X and Y living in the primary care of the Husband as follows:

   “103. For the reasons outlined herein, I also have the following   serious concerns in relation to the children spending time with           Mr Laffy:

   a)Mr Laffy’s inability to abstain from drinking alcohol as well as driving whilst drunk;

   b)Mr Laffy’s excessive drinking impairing his parenting capacity and ability;

   c)The Children being continually subjected and exposed to Mr Laffy’s drinking habits and drunken behaviour and the message that this conveys to them;

   d)Mr Laffy’s lack of insight and inability to act in the Children’s best interest;

   e)Mr Laffy’s inability to separate his own wants and needs from the needs of the Children;

   f)Mr Laffy’s manipulation of the Children and embroiling them in our separation rather than shielding them from it;

   g)Encouraging and exacerbating the Children, particularly X, feeling the need to “choose” Mr Laffy over me, to satisfy Mr Laffy and keep him happy;

   h)X worrying about Mr Laffy and his feelings of responsibility towards Mr Laffy;

   i)Mr Laffy’s denigration of me, my family and the Children’s heritage and culture rather than encouraging the Children to embrace and be proud of their family history.

   104. Since separation, Mr Laffy’s primary focus has been on ensuring that he is seen as the primary carer of the Children and seeking either exactly the same time to care for the Children than me or more.”

10. It is the Wife’s evidence that the Husband is a heavy drinker of alcohol, consuming up to ten to twelve glasses of alcohol a night. It is the Wife’s evidence that the Husband’s alcohol consumption was particularly heavy on a Friday evening and it is for this reason that she proposes that the time X and Y spend with him start on a Saturday morning.

11. It is the Wife’s evidence that during the marriage she did not have concerns with the Husband having the care of X and Y during the day as he tended to drink from 5.00pm onwards by which time she was home from work and was able to care for them.

12. It is the Wife’s evidence that whilst the parties were separated under the one roof, the Husband was deliberately manipulating the children, and particularly X to choose him over her. By way of example of this behaviour, it is the Wife’s evidence that the Husband actively encouraged X to sleep in the same bed as him and that over time X became more and more concerned about being responsible for the Husband’s happiness and wellbeing.

13. It is the Wife’s evidence that she believes the Husband was very drunk on the evening of 17 May 2015 and that he passed out on the floor in the lounge room.

14. It is the Wife’s evidence that she did not deliberately take X and Y to the Husband’s bedroom to try and provoke an incident between she and the Husband that she could record for the purposes of this litigation. Rather X in particular was so concerned about the Husband and the state that he was in when he got home that he became very distressed and insisted that he be able to see the Husband and make sure that he was alright.

15. The Wife concedes that it was inappropriate that she was yelling at the Husband that he was drunk in front of X and Y, but explained her behaviour as trying to get through to the Husband that his behaviour was grossly inappropriate in the hope that he would realise he has a serious problem that he needs to address.

16. It is the Wife’s evidence that she does not believe that the Husband has the capacity to assume the primary care of X and Y and that her proposal will ensure X and Y are properly cared for and also enable them to maintain what she openly acknowledges is their close and loving relationship with the Husband.

17. The Wife agrees that she and the Husband have difficulties in communicating. She proposes that their communication be by way of email or text message save in the event of emergency.

18. In relation to the Wife’s wish to be able to take X and Y to (country omitted), it is her evidence that her parents live in a small town out of (country omitted) in a gated community and that there is no risk to X and Y in the event that they are able to travel there.

19. It is the Wife’s evidence that when X was eighteen months old the Husband had no issue with she and X travelling to (country omitted) for six weeks. It is her evidence X enjoyed his trip to (country omitted) and there was no problems or incidents of concern during this trip.

20. It is the Wife’s evidence that she has no intention of living anywhere other than in Australia. It is her evidence that she has a good job, is an Australian citizen and strongly believes that Australia is the best place for X and Y to grow up in.

Ms C

1. Ms C is a close friend of the Wife. She swore an affidavit in these proceedings on 10 April 2015 and gave evidence by way of telephone from (country omitted) at the final hearing.

2. It is Ms C’s evidence that she has been friends with the Wife since (omitted) 1999 and they have maintained that friendship since that time, albeit Ms C has spent limited time living in Australia.

3. It is Ms C’s evidence that she and her Husband returned to Australia in 2011 and she and her Husband resided with the parties for approximately one month before moving in to their own apartment in Melbourne.

1. It is Ms C’s evidence that during this period she observed the Husband to drink alcohol heavily each night that she was there.

2. Ms C conceded that she does not drink as she is allergic to alcohol and does not like people to drink to excess.

3. Ms C described X and Y as happy and healthy children and both parties doing their best for their children.

Mr L

1. Mr L is a psychologist. Mr L prepared a family report in this matter dated 30 May 2015 which is annexed to his affidavit sworn on 15 September 2015. Mr L also gave viva voce evidence at the final hearing.

2. When the parties, X and Y first attended upon Mr L at his rooms on 18 April 2015, he realised that the parties had not told X and Y that they had separated, that the former matrimonial home was being sold and that the parties would then be living apart from each other.

3. As a result, Mr L made the decision not to interview or observe the children with the parties closely at that time. He asked the parties to go away and speak to X and Y and explain to them what was about to happen. Mr L subsequently visited the parties, X and Y in the former matrimonial home on 25 May 2015.

4. Mr L spoke to X and Y, but primarily X given Y’s young age, for approximately fifteen minutes in the former matrimonial home in (omitted) on 25 May 2015.

5. Mr L did not observe X and Y with each of the parties on their own.

6. In his Family Report at paragraph 6.6, Mr L sets out that he explained to X the purpose of his visit and asked X to tell him what would be best for him and why. Mr L reports that X took to this task immediately and said as follows:

   “I think it is best when daddy takes me to school… and I want so that we get the same time with Daddy and with Mummy.”

7. Mr L states in paragraph 6.8 of his report that he asked X what are the two important things X wants him to report. He sets out that X said as follows:

   “Well…Daddy gets us ready and takes us to school and that’s what we’re used to…And it should be the same because that’s fair and they both love us and I love them both.”

8. Under the heading ‘Conclusions and Recommendations, Mr L sets out the following:

   “7.1 From the history of their care, and from my interviews and observations, I formed the view that it was likely that X and Y had formed their primary attachments to their Husband, Mr Laffy.

   7.2X and Y also have developmentally important and robust Wife-child bonds with Ms Abbott and both parents seem to adopt a responsive and engaged parenting style, with Mr Laffy, perhaps a little more included to stress responsiveness, while Ms Abbott may be a little more focused on boundary setting.

   7.3I have little doubt that the children enjoy their relationships with both parents and could benefit from the different approaches to parenting if they are viewed as complementary. For these reasons, I think it is important that Mr Laffy and Ms Abbott continue to share parental responsibility for the children. 

   7.4In my opinion, the pattern of the children’s relationship should be reflected in the parenting arrangements made for them where they effectively share their time between their parents, but also have the stability of a ‘home base’. This also reflects X’s wishes.

   7.5 I think that X and Y should live with their Husband, Mr Laffy through the majority of the school week and should spend substantial and significant time with their Wife, Ms Abbott

   ·from after school Friday until before school Monday, fortnightly, and

   ·from after school Thursday³ until before school Friday weekly, in the following pattern:

   Key:  Wife            

   Husband  

   .

   7.6The advantages I see in this arrangement are:

   7.6.1 The children would go no more than 3 days without seeing their Husband, and not more than 5 without seeing⁴ their Wife; they would spend some time with their Wife on
   7 days each fortnight, and their Husband on 11;

   7.6.2 It minimises the number of changeovers to 4, and involves no direct parent to parent changeover where exposure to conflict and separation anxiety most often occur;

   7.6.3 It allows both parents regular weekday nights where they can plan and participate in recurring social and recreational activities with the children; and

   7.6.4 It is relatively easily explained to children their ages: “You stay with mum every Thursday, and then you have one weekend for Dad and one weekend for Mum”.

³ A similar arrangement can be made if the weekly overnight time is on a Monday.

⁴ ‘Seeing’ does not mean ‘spending the night with.’

7.7Ms Abbott makes claims about Mr Laffy’s use of alcohol which, if true, would represent not only a health problem for him but some impediment to his ability to care for the children. Mr Laffy denies these claims adamantly. To the extent to which they germane, they will need to be tested under the rigours of cross-examination.

7.8I note, however, that the concern has been dealt with in previous consent Orders by a prudent provision that neither party consume alcohol in a way that would impair their ability to care for the children or respond safely to any emergencies they encounter. In my view, that provision should remain.

7.9I can see no reason why X and Y should not be able to share time between their parents immediately for holidays and for special family and cultural events.

7.10 In my experience, most children enjoy liberal voluntary telephone and internet chat communication with their parents, and I think that effect could given to this in the proposed arrangements with each parent agreeing to encourage and facilitate a call to the other parent at least once in each period of more than one night the children with them, and at least twice weekly during holidays.

1. When giving his viva voce evidence Mr L explained the basis of his recommendations as follows:

   “It is based on the pattern of the children’s relationships as I observed them and implied from the history of the children’s care; that is, that they both formed a primary attachment to the Husband, Mr Laffy, and have very good Wife/child relationships with the Wife, but I decided to reflect those relationships in the recommendations that I made.  I think there is growing evidence that for younger children, and we can have an argument about how young, the protection of the stability of the primary attachment relationship is important in determining optimal outcomes for children post-separation, and …my report tries to do this…it tries to give the children continuing stability in that relationship while…very ample opportunity to continue to grow their relationship with their Wife.”

2. Mr L was asked what would be the negative impact on X and Y if living arrangements were put in place that accorded with the Wife’s proposal. It is Mr L’s evidence as follows:

   “I think it would lead them away from the Husband, with whom they have their primary attachment, for periods of too long, and I think it would not give them the stability … my proposal, basically, leaves them with the Husband through the majority of each school or kindergarten week, and that’s deliberate.  I think that stability with the primary attachment figure is important.”

3. Mr L was questioned as to the basis upon which he formed his view that it is with the Husband that X and Y have their primary attachment. Mr L conceded that he only observed X and Y with the parents for a very short period of time and that it was apparent they have a good relationship with both parents from those limited observations. It is Mr L’s evidence that he gleaned from his conversation with X that X and Y’s primary attachment is to the Husband, and in particular X’s comments about who takes him to school. It is Mr L’s evidence that he primarily formed his opinion from the history of X and Y’s care. Mr L’s evidence as to X and Y’s primary attachment being with the Husband is as follows:

   “Attachments form between the age of about eight months and then runs through to the age of about 30 months. Both parents agree that during those periods of time they were primarily in the care of their Husband.”

4. Mr L observes that historically X and Y are used to the Husband seeing to their day to day care arrangements. He noted that this is not an observation of any particular parents’ parenting stalls but rather reflects the arrangement that these parties had put in place.

5. Counsel for the Wife put to Mr L the Wife’s evidence as to the parenting arrangements for X and Y both during the marriage and up to the point of physical separation. It was therefore put to Mr L that in those circumstances it was the Wife who was X and Y’s primary carer and it was with her that X and Y have their primary attachment.

6. It is Mr L’s evidence that he has no doubt that the Wife was the parent who was primarily responsible for the practical arrangements for the children, but that this is not what leads to primary attachment.

7. Mr L when further pressed by counsel for the Wife expanded on his reasons for forming the view that it is with the Husband that X and Y have their primary attachment. Mr L explained:

   “primary attachment is an emotional representation in the child who is as yet not verbal of a sense of security and stability. They will almost always form with the care giver who spends the majority of routine time with the children and answers most of their needs during that period of time. The evidence I had from the Wife and from the Husband was that at that time when the Wife returned to work they were more in the care of the Husband than of the Wife.”

8. Mr L then explained that he was not saying that when the child is primarily attached to one parent, the child does not love the other parent.  He explained:

   “We are talking about a deep emotional bond that remains of significance to the children until they individuate .... and it remains significant through all their life.”

9. espite quite vigorous cross examination from the Wife’s counsel, Mr L indicated that on the basis of his observations, discussions with X and the joint history of the parties he was not going to change the view that he had formed that X and Y’s primary attachment is with the Husband.

10. was questioned about the Wife’s evidence as to the level of the Husband’s drinking and the Husband’s denial that he does drink to excess. Mr L was asked if the Court was satisfied that the Husband’s level of alcohol consumption was as described by the Wife and given the Husband’s denial that he drinks at this level, would this cause him concern about the Husband being X and Y’s primarily carer. It is Mr L’s evidence that this would cause him concern as one of the diagnostic criteria for a diagnosis of substance dependence is that the person does not accept the impact that alcohol has on their work, on their family life and on their social relationships.

11. It is Mr L’s evidence however that he believes any risk the Husband’s alcohol consumption could cause X and Y could be dealt with by there being restraints placed on the Husband consuming alcohol when X and Y are in his care.

12. It is Mr L’s evidence that if the Court makes a finding of fact that the Husband’s ability to control his alcohol could not be contained by restraints then the only two options available to the Court is to allow X and Y to spend supervised time or very limited time with the Husband.

13. It was put to Mr L that a summary of his evidence would be that the question of which of the parties has the primary care of X and Y was a balancing of the risk that they be separated from the parent with whom they have their primary attachment and the risk of living primarily with someone unable to control and manage their alcohol consumption and the impact on the parenting capacity of that parent that flows from excessive alcohol use. Mr L agreed with this summary. He indicated that if the Court was to make a finding that there was a low risk that the Husband would not be bound by restraints as to alcohol consumption when X and Y were in his care then he would support the recommendation made by him in his report. If the Court was satisfied that there was a moderate or high risk of the Husband not being restrained in his alcohol use by orders of the Court when X and Y are in his care then the options to the Court would be supervision or regular short periods of time with the Husband.

14. Mr L was asked whether he made any observations that X and/or Y were being manipulated by the Husband to express a preference for him. It is Mr L’s evidence that he found no indications that this was the case and in fact pointed to X telling him that he wanted to have equal time with his parents as he loved them both as indicative of neither parent overtly influencing X and/or Y as to their living arrangements.

15. Mr L observed and listened to the video and recordings made by the Wife on the evening of 17 May 2015. Mr L was particularly concerned about the level of X’s distress on that night. Mr L made the very pithy, and I would note, appropriate observation that what he heard were two parents behaving very badly and that there were behaviours from both parents that were of concern on that evening.

The Law

1. Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):

   1. The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.

Section 60CC(2)

1. Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.

Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

1. X and Y have a close and loving relationship with both the Husband and the Wife.

2. It is imperative that any orders this Court makes ensures that the meaningful, close and loving relationship that X and Y have with both parties continues into the future.

Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. It is the Wife’s evidence that the Husband drinks alcohol to excess on a daily basis and that this impacts on his capacity to care for the children, particularly after 5.00pm.

2. It is the Husband’s evidence that he does not drink alcohol to excess as described by the Wife and that at best he would have a beer whilst watering the garden, a beer whilst cooking dinner and occasionally share a bottle of wine with the Wife over dinner.

3. In March 2014, shortly after the parties separated under the one roof it is the Wife’s evidence that the Husband became increasingly intoxicated during the evening, was verbally abusive to her in front of the children and that she became sufficiently concerned about the Husband’s behaviour that she felt unsafe and called the Police.

4. The Police attended the formal matrimonial home on this evening. The LEAP record refer to the Husband as being heavily affected by alcohol whilst the Safety Notice Form completed by the Police later on that evening refers to the Husband being moderately affected by alcohol.

5. There was a further incident on the evening of 17 May 2015 when the Husband returned to the former matrimonial home at about 7.30pm. It is the Wife’s evidence that the Husband was so intoxicated that he passed out on the lounge room floor and that when he subsequently went to bed X and Y who were concerned about him were unable to wake the Husband for fifteen minutes. The Wife recorded this incident as well as took some very brief footage of the Husband lying on the lounge room floor.

6. The Police were again called to the former matrimonial home on this evening but the subpoenaed Police records from the evening made no reference to the Husband being intoxicated. They note that the Wife told them there had been no argument, threats or damage that evening.

7. After the incident on 30 March 2014 there was an Intervention Order made by consent ‘without admission’ in the Castlemaine Magistrates’ Court which prohibited the Husband from consuming alcohol at the former matrimonial home or being intoxicated at that address or in the presence of the Wife or the children for a period of three months.

8. It is the Wife’s evidence that for the life of the Intervention Order the Husband did not consume alcohol at the former matrimonial home and that whilst she suspects there were a couple of occasions the Husband had a drink before he returned to the matrimonial home as she could smell alcohol on his breath, at no time was he intoxicated or did she feel the need to contact the police to have the Husband breath tested, something that the Intervention Order allowed her to do.

9. Having considered the parties evidence, perused the police records and listened to the Wife’s recordings of 17 May 2015, I am satisfied that on the evenings of 30 March 2014 and on the evening of 17 May 2015 the Husband had consumed alcohol to excess.

10. I am also satisfied that during the relationship and after the parties separated the Husband would have a drink most evenings and there were occasions when he had more than the two beers and glass of wine that he described. I am also satisfied that the Husband did not consume alcohol on a nightly basis at the level described by the Wife. In other words, I am satisfied that the Husband underplayed the level of his alcohol consumption during the relationship and whilst the parties were separated under the one roof and that the Wife exaggerated the level of the Husband’s drinking during this period.

1. What is of most importance in this matter is the Wife’s evidence that the Husband was able to and did comply with the terms of the Intervention Order made against him in April 2014 that he not drink whilst at the former matrimonial home or be intoxicated whilst at that home or in the presence of the Wife or the children.

2. When giving her viva voce evidence the Wife explained the breakdown of the parties’ relationship as being a result of there being too many cultural differences between them and because the Husband could not cope with her family. She at no time indicated that the Husband’s alleged excessive alcohol consumption was the cause of the breakdown of their relationship.

3. Mr L quite properly observed that when you have sole care of children you cannot drink as you may have when you are in an intact relationship and sharing the care of the children.

4. Mr L also observed that he believed on the evidence before him that any concerns about the Husband’s drinking when he has the care of X and Y can be managed by way of appropriate restraints.

5. There is no doubt that there were times during the parties’ relationship and during the period that they were separated under the one roof that the Husband’s alcohol consumption was excessive and that on occasion X and Y observed the Husband to be in a drunken state. This is not appropriate.

6. What is apparent however is that when required by Orders of a Court to restrain his drinking, the Husband was able to do so.

7. I am therefore in agreement with Mr L that concerns about the Husband’s alcohol consumption in the context of his parenting is something that the Court can be satisfied will be managed by way of appropriate restraining Orders.

Section 60CC(3)

1. Section 60CC(3) of the Act sets out the additional considerations the court must consider when determining what is in the child’s best interest.

2. Each of the matters set out under that section will be considered in turn where applicable in this matter. 

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. As has been set out in this judgment, Mr L only spoke briefly with X. Given Y’s age, he did not have any meaningful discussions with her.

2. Mr L notes that X expressed views that he wanted to have equal time with the parties because that was fair and because he loves them both very much.

3. It is Mr L’s evidence that given X’s very young age he really has little understanding of what equal time arrangements mean and that little weight should be given to X’s views for an equal time living arrangement.

4. I note this is particularly so as at the time Mr L spoke to X, the parties were living under the one roof and X had not experienced living with each of his parents in a different home.

Section 60CC(3)(b) the nature of the relationship of the child with: 

(i)  each of the child's parents; and

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

1. As has been clearly set out in this judgment, X and Y have a close and loving relationship with both of the parties.

2. It is Mr L’s clear evidence that he believes that it is with the Husband that X and Y have their primary attachment as it was the Husband who was primarily attending to their day to day needs when they were aged between eight months and thirty months, the period where that attachment is formed.

3. It is Mr L’s evidence that primary attachment does not necessarily reflect the practical parenting that may have been taking place for the children but rather the emotional bond that the children develop with the parent that they perceive as meeting their immediate needs.

4. When X and Y were aged between eight to thirty months the Husband was a stay at home parent completing the construction of the parties’ home whilst the Wife, by agreement returned to (occupation omitted).

5. X and Y were at home with the Husband on Tuesdays and Thursdays, were in child care on Mondays and Wednesdays and home with both their parents Friday through to Sunday. Whilst it is the Wife’s evidence the Husband was working on the former matrimonial home and she was primarily looking after X and Y Friday to Sunday, I have no doubt they were popping in and out to see the Husband as he was around the house and that from X and Y’s perspective they were cared for by both parties during this time.

6. During the relationship and the period when the parties were separated under the one roof, the Wife was the parent who generally attended to X and Y’s practical needs, like medical and dental appointments, social dates, whilst it would appear that the Husband was primarily responsible for taking them to school/day care, preparing meals, playing with the children and putting them to bed.

7. Both parents have very different parenting styles. Mr L in his

   
   viva voce

   evidence described them as follows:

   “Overwhelmingly they are two very good parents with slightly different parenting styles. Mr Laffy is a bit more – “indulgent” – is a bad word for it, “engagement” is a good word for it.
   Ms Abbott is more inclined to set boundaries so they are different styles but I think basically they are two good parents with two nice kids who love them both.”

8. In all these circumstances I accept Mr L’s evidence that X and Y’s primary attachment is with the Husband.

9. I would reinforce however that this is not a reflection of the parenting capacity of either party nor does it in any way infer that X and Y love either one of their parents more than the other.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)   to spend time with the child;

(iii) to communicate with the child.

1. Whilst the parties separated in March 2014, they have only physically separated recently.

2. Prior to their physical separation the parties reached a mediated agreement that fundamentally provided for them to share the care of X and Y. This arrangement has continued, with some tweaking, since their physical separation. 

3. Whilst both parties report difficulties in communicating with the other, to their credit the Court was handed a very detailed minute that the parties had agreed to in relation to arrangements for holiday and special occasions as well as X and Y’s education and religious practices going forward.

4. It is apparent to the Court that these are two loving, committed and caring parents whose focus going forward will be to ensure the best interests of X and Y.

Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. I am satisfied that both parties have and will continue to fulfil their obligations to maintain X and Y.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. It is Mr L’s clear evidence that the Wife’s proposal which would result in X and Y not seeing the Husband for some six days is too long a period for them not to spend time with the Husband who he has found to be their primary attachment figure.

2. It is Mr L’s further evidence that a 7/7 arrangement would be inappropriate for X and Y as it would be too long for either X or Y not to see the other parent.

3. It is therefore apparent that the living arrangements for X and Y outside of holidays must ensure that they see each of the parties on a very regular basis.

Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. Both parents are currently living in close proximity of the other and there appears to be no intention by either party to leave the area. Accordingly there is no practical difficulty in X and Y being able to spend time with each of the parties.

Section 60CC (3)(f) the capacity of:

(i)     each of the child's parents; and

(ii)   any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. In this matter the Wife raises concerns that when the parties were separated under the one roof, the Husband was manipulating X in particular by encouraging X to choose the Husband over her, by encouraging X to sleep with him and by making X feel responsible for the Husband and his well-being.

2. The Husband took issue with the Wife speaking solely in (language omitted) to X and Y when he was present and of feeling excluded by this as he does not speak (language omitted).

3. Mr L did not observe X in particular to be aligned with either of the parties and in fact noted that his comments were all about trying to be fair to both parents and to him expressing how much he loves them both.

4. There is no doubt that in the fifteen months that the parties were separated under the one roof, the tension between the adults in the household must have been extremely high and that each party was hyper sensitive to the other’s interactions with X and Y.

5. It is the Wife’s evidence that since the parties physically separated she has noticed positive changes in X and Y and observes them to be more relaxed and comfortable.

6. It is pleasing to note both parties’ observations that a great deal of the issues for the children are resolving since the physical separation of the parties.

7. Accordingly, I am satisfied that both parties have the capacity and are able to meet the emotional and intellectual needs of X and Y.

Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. The Wife was born in (country omitted) and her family continue to live in that country. The Husband is Australian. Therefore, X and Y have a mixed heritage and it will be important that they are afforded the opportunity to embrace and fully understand that heritage.

2. To the parties’ credit, the Orders that they have agreed to make provision for X and Y to attend (language omitted) classes.

3. The Wife is (religion omitted). The Husband’s religion is unknown. Again to their credit the parties have reached agreement that X and Y shall follow the (religion omitted) faith. The Minute of Orders presented to the Court make provision for Y to be baptised and for both X and Y to participate in receiving the sacraments of Communion and Reconciliation. The Orders also make provision for X and Y to be enrolled in and attend a (omitted) secondary school.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. I am satisfied that both the Husband and the Wife are responsible, committed and loving parents who want what is best for their children.

2. The parties current communication difficulties may in part be a reflection of the tensions that existed as a result of them being separated under the one roof as well as this ongoing litigation. It would be hoped that with their physical separation and the resolution of this matter many of those tensions will cease to exist and communication between the parties will improve.

3. It is the Wife’s evidence that the primary reason for the parties’ separation was that there were too many cultural differences between them. This must also add to their communication difficulties.

4. It will be vitally important for X and Y going forward that if the parties continue to have difficulty in communicating about the parenting of X and Y, they engage in appropriate counselling to assist them to better communicate so that they can continue to be the responsible and loving parents that they are.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)     the nature of the order;

(ii)   the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v)   any other relevant matter;

1. The circumstance of the Family Violence Order that was made against the Husband in April 2014 has been set out in some detail in this judgment.

2. The physical separation of these parties will go a long way towards reducing their level of conflict and it is this Court’s expectation that these parties will not need to have recourse to the State Courts going forward.

Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In the majority of parenting cases, the Court seeks to make Orders that set up a blue print for the children’s future living arrangements such that the parties are able to focus on the parenting of their children and avoid the emotional and financial cost of ongoing litigation.

2. In this matter it is Mr L’s clear evidence that X and Y are too young at this time for a shared care arrangement because of their primary attachment to the Husband and because neither of them are old enough to cope with being away from the other parent for extended periods of time on a regular basis.

3. Given the two very good parents we have in this case and the very clear and loving relationship X and Y have with both of them, this is a matter where orders that are appropriate for a six and four year old may not be appropriate as they get older.

Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.

1. The parties are not in agreement that the Wife be permitted to take X and Y to visit her family in (country omitted).

2. It is the Husband’s evidence that the level of civil unrest and violence in (country omitted) is such that X and Y will be at serious risk of harm if they were taken there by the Wife. He is particularly concerned that they present a kidnapping risk, particularly as X is apparently quite fair.

3. It is the Wife’s evidence that X and Y would be safe if they were to travel with her to (country omitted) to visit her family. It is the Wife’s evidence that her parents live in a small city outside of (country omitted). Her parents live in a comfortable three bedroom home which is in a gated community that can only be entered by way of security code.

4. It is the Wife’s evidence that she took X to (country omitted) for six weeks to visit her family when he was eighteen months old, with the Husband’s agreement. It is her evidence that this trip was without incident.

5. It is the Wife’s evidence that she wants X and Y to have the opportunity to visit (country omitted) and experience the country of her birth and to develop a greater understanding of that aspect of their heritage.

6. The Husband also raises concerns that he believes that the Wife could prove to be a flight risk if permitted to travel to (country omitted) with X and Y.

7. The Wife is now an Australian citizen, is a successful (occupation omitted) in Australia and is adamant in her evidence that she wants X and Y to grow up in Australia.

8. (country omitted) is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction.

Presumption of Equal Shared Parental Responsibility

1. Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child. 

3. In this matter both parties are seeking Orders that they have equal shared parental responsibility for X and Y. Whilst matters between the parties were extremely tense whilst separated under the one roof and there was an incident which led to an Intervention Order being made against the Husband without admission for a period of three months after he became intoxicated, I am of the view that with the physical separation of the parties and some distance between them the spectre of family violence has diminished.

4. Whilst the parties’ current communication is poor, it is encouraging to have received a very detailed minute of orders where the parties have been able to agree to very important ongoing medical, religious and education matters for the children.

5. Mr L is very strongly supportive of Orders being made which continue the parties having equal shared parental responsibility for X and Y.

6. In all these circumstances it is apparent that the presumption for equal shared parental responsibility has not been rebutted and that it is very much in X and Y’s best interests that an order be made for the parties to continue to have equal shared parental responsibility for them.

Consideration of Equal Time or Substantial and Significant Time

1. Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time or substantial and significant time with each parent.

2. In this matter, neither party is proposing that Orders be made for equal time arrangements.

3. It is Mr L’s very clear evidence that he does not support Orders for equal time for X and Y at this time given their very young ages, their primary attachment to the Husband and his belief that post separation younger children benefit from the protection of the stability of the primary attachment relationship as it provides the optimal outcome for children post separation.

4. Both parties’ proposals however would ensure the other parent spends significant and substantial time with the other in accordance with the definition contained in section 65DAA (3) of the Act.

Conclusion

1. This matter relates to the future living arrangements for the parties’ two children, X currently aged six and a half and Y currently aged four. The parties separated under the one roof in March 2014 and physically separated in July 2015.

2. After the parties’ separation under the one roof, they attended mediation with Mr T. By agreement they put in place an arrangement that saw them share the care of X and Y. Upon their physical separation the shared care arrangement has continued albeit with some slight tweaking to take into account the practicalities of the parties no longer being under the one roof.

3. The Husband is seeking Orders that X and Y live with him and spend time with the Wife each alternate week from Thursday to Monday or Tuesday if Monday is a public holiday and from Thursday to Friday in the alternate week. Otherwise he proposes there be a sharing of holidays and special occasions, the practicalities of which have been agreed to by the parties.

4. The Husband’s proposals reflect the recommendations contained in the family report of Mr L.

5. The Wife is seeking Orders that X and Y live with her and spend time with the Husband each alternate weekend from 9.00am Saturday to 5.30pm Tuesday and from after school Monday to before school Tuesday in the alternate week.

6. It is the Husband’s evidence that he was the primary carer for X and Y whilst the parties were together as by agreement he resigned from his employment as a (occupation omitted) when X was about ten months old. This enabled the Husband to complete the former matrimonial home as an owner/builder and the Wife to return to work as a (occupation omitted) as she had the greater income earning capacity.

1. It is the Husband’s evidence that it was he who attended to the practical day to day needs of X and Y in that it was he who took them to day care/kindergarten, cooked their meals, played with them and attended to their daily needs.

2. It is the Wife’s evidence that she and the Husband both cared for X and Y. It is her evidence that she took three months maternity leave after X was born and six months maternity leave after Y was born. When she returned to work X and Y were in day care two days per week, in the care of the Husband on Tuesdays and Thursdays and that they were in her care Friday to Sunday when she was home and the Husband was fully engaged on the house renovations.

3. It is the evidence of Mr L that he is of the opinion that X and Y have formed their primary attachment with the Husband.

4. It is Mr L’s evidence that primary attachment is formed in children between the ages of eight months and thirty months and that he is satisfied from his observations of the children, comments made to him by X and the evidence of both the parties that it is with the Husband that X and Y formed their primary attachment during this period as he was the parent who was in the most part attending to the day to day needs of the children during this period.

5. It is Mr L’s evidence that there is growing evidence that for younger children the protection of the stability of the primary attachment relationship is important in providing for the optimal outcome for children post separation. It is for this reason that he has made the recommendation that X and Y live with the Husband and spend significant and substantial time with the Wife as this will give them the stability of being in the primarily care of the Husband and enable them to maintain the very good Wife/child relationship that they have with her.

6. It is the Wife’s evidence that the Husband drank heavily for the entirety of the marriage and has continued to do so in the post separation period.  It is the Wife’s evidence that the Husband consumes up to four beers and five glasses of wine on a daily basis.

7. It is the Wife’s further evidence that there have been occasions where the Husband has become so intoxicated that he passed out and she has had to put him to bed.

8. The Husband adamantly denies that he drinks as heavily as is the Wife’s evidence. It is the Husband’s evidence that he does have a beer whilst watering the garden or cooking dinner but that he had not been and is not intoxicated on a regular or daily basis.

9. The Wife gave evidence of two particular occasions of the Husband’s excessive alcohol consumption.

10. The first was on 30 March 2014 when it is the Wife’s evidence the Husband became increasingly intoxicated during the evening, more argumentative and abusive such that she became concerned for her own safety and called the police.

11. As a result of this incident, the Wife was successful in obtaining an Intervention Order by consent without admission for a period of three months, the terms of which provided for the Husband not to drink at all when at the former matrimonial home or to be intoxicated in the presence of the Wife or X and Y.

12. The second incident was on 17 May 2015 when it is the Wife’s evidence the Husband came home so intoxicated that he passed out on the lounge room floor and after going to bed, was unable to be woken by X and Y for some fifteen minutes.

13. The Court was played a very distressing recording the Wife made on 17 May 2015 where X is clearly incredibly distressed, the Husband is not responding to X’s pleas that he wake up and the Wife is screaming loudly at the Husband in front of the children that he is drunk and not a suitable carer of the children.

14. As has been set out in this judgment, the Court is satisfied that on these two occasions the Husband was adversely affected by alcohol and had clearly drunk to excess.

15. The Court is satisfied that when giving his evidence the Husband was under playing the alcohol drunk by him. The Court is also satisfied that when giving her evidence the Wife was exaggerating the amount of alcohol the Husband consumes.

16. Of greatest importance is that the Husband was able to comply with the terms of the Intervention Order made in April 2014 and control his alcohol consumption in accordance with the Orders of the Castlemaine Magistrates’ Court.

17. It is Mr L’s evidence that he is of the view that any risk that the Husband’s drinking might cause to X and Y when they are in the Husband’s care can be managed by appropriate Orders being made restraining the Husband from consuming alcohol when X and Y are in his care.

18. Given the Husband’s ability to comply with the restraining orders made pursuant to the Intervention Order for a period of three months and his consent to an order being made that he be restrained from consuming alcohol when Y and X are in his care and for a period of eight hours prior thereto, the Court is satisfied that any issues about X and Y being at risk when in the Husband’s care as a result of his alcohol consumption will be met by an order restraining him from drinking when X and Y are in his care.

19. Given that the Court accepts the evidence of Mr L that X and Y’s primary attachment is with the Husband, that the Orders restraining the Husband from consuming alcohol when X and Y are in his care alleviates any possible risks associated with his alcohol consumption and the very strong evidence of Mr L that given X and Y’s young ages the protection of the stability of their primary attachment relationship will be important in ensuring an optimum outcome for them post separation, I am satisfied that it is in X and Y’s best interest that at this time Orders be made in the terms recommended by Mr L and as are proposed by the Husband for their day to day living arrangements outside holiday periods.

20. It should be noted that in this matter we have two loving, competent parents. They have very different parenting styles which are described by Mr L as the Husband being more engaging and the Wife being more boundary setting but both being totally appropriate and nurturing.

21. Whilst it is Mr L’s clear evidence that at this time X and in particularly Y are two young for an equal time arrangement to be put in place, this is a matter I believe where once X and Y are older serious considerations should be given to a shared care arrangement for them.

22. In those circumstances, whilst Orders will be made as sought by the Husband at this time, a further Order will be made that prior to Y’s seventh birthday, the parties attend for further mediation with a view to discussing and reconsidering the ongoing living arrangements for X and Y. I note the parties have previously been assisted by Mr T and it may appropriate for them to again seek Mr T’s assistance.

23. The other remaining matter for determination by this Court is whether the Wife should be able to travel with X and Y to (country omitted).

24. The Wife is (nationality omitted) born and her family still live in that country. She wishes to be afforded the opportunity to take X and Y to (country omitted) so they can experience the country of her birth and to visit their extended maternal family.

25. The Husband is strongly opposed to X and Y travelling to (country omitted). He does not believe that (country omitted) is safe and that if X and Y were to travel there they could be at risk of kidnapping, particularly X as he is quite fair.

26. The Husband also raises concerns that the Wife could be a flight risk.

27. It is the Wife’s evidence that she is not a flight risk. The Wife is now an Australian citizen, has steady and secure employment in Australia and it is in Australia that she wants X and Y to grow up.

28. The Wife also notes that (country omitted) is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

29. I accept the Wife’s evidence in this regard and do not believe she presents as a flight risk.

30. It is the Wife’s evidence that she and X travelled to (country omitted) for six weeks when X was eighteen months old without incident or issue and with the Husband’s consent.

31. Further, it is the Wife’s evidence that her parents live in a small town of approximately 5,000 people outside of (country omitted). Their home is in a secure compound which can only be entered through security gates that require a special code be entered. It is her further evidence that she would never place either X or Y at risk.

32. X and Y are very fortunate to have both Australian and (nationality omitted) heritage. I am satisfied they should be afforded the opportunity to experience both their Australian and (nationality omitted) cultures.

33. International travel is not without some risk. However I am satisfied that neither the Wife or the Husband would ever place their children at serious risk of harm by travelling with them to any destination where the Department of Foreign Affairs and Trade have indicated that travel is not safe.

34. In these circumstances the Husband’s application for a Watch List Order is not granted.

35. To afford both parents some sense of security in relation to international travel, Orders will be made that X and Y’s passports be held by the Wife’s solicitors. The passports are only to be released upon the travelling parent giving the non-travelling parent 45 days written notice of their intention to travel together with a full itinerary, contact details and proof of purchase of return airfares for the children.

36. The solicitors holding the passports will be requested to provide X and Y’s passports to the travelling parent upon production of proof of compliance with the Order for full disclosure of travel and the travelling parent shall return the passports to the Wife’s solicitors within seven days of their return from overseas.

37. Finally, as was set out previously in this judgment, both parents acknowledge some difficulties in their current communication. This in part can be attributed to the stressors of separation under the one roof, the current litigation and also in part to the cultural differences that ultimately gave rise to the breakdown of the parties’ relationship.

38. X and Y’s need parents who can communicate effectively, particularly given their young ages and the many decisions which must be made for them going forward.

39. The parties are therefore strongly encouraged, if they have not done so, to attend a post separation parenting course and to contemplate joint counselling to assist them to develop the ability to better communicate going forward.

Property

1. As has been set out in this judgment, the parties reached an agreement about the division of property between them that provided that there be an equalisation of their superannuation entitlements and that otherwise the net proceeds of the former matrimonial home be divided on a 65/35 basis in the Husband’s favour in the event that X and Y live primarily in his care.

2. This adjustment in the Husband’s favour reflects the Wife’s greater earning capacity, his primary care of the children and the contributions made by him in the construction of the former matrimonial home.

3. Accordingly, Orders will be made in the terms submitted by the parties given that the Court is satisfied firstly that it is just and equitable that an Order be made adjusting property matters between the parties and secondly that the agreement that the parties have reached is an appropriate exercise of the Court’s discretion under s.79 of the Act.

I certify that the preceding two hundred and forty five (245) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:

Date: 21 January 2016