LENARDI & LENARDI

FAMILY COURT OF AUSTRALIA

LENARDI & LENARDI

[2010] FamCA 1114

FAMILY LAW – CHILDREN – Best interests – Equal time – Significant and substantial time – General obligations – Child's views
FAMILY LAW – CHILDREN – Equal shared parental responsibility

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Briginshaw (1938) 60 CLR 336
Jones & Dunkel (1959) 101 CLR 298
Biltoft (1995) FLC 92-614
Mazorski & Albright (2007) 37 Fam LR 518
Oscar & Traynor [2008] FamCAFC 158
Beazley & Andreopolis [2009] FamCA 567
C v G [2006] Fam CA 994
Godfrey & Sanders [2007] FamCA 102
MRR & GR [2010] HCA 4

APPLICANT:

Mr Lenardi

RESPONDENT:

Ms Lenardi

FILE NUMBER:

PAC

1472

2007

DATE DELIVERED:

8 December 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

4 - 7 May 2009

2 July 2009
12 February 2010

LAST WRITTEN SUBMISSIONS:

28 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

McPhee Kelshaw

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Family Law Matters

Orders

That all previous parenting orders in respect of J born … April 1998; and B born … September 2003 (“the children”) be and are hereby discharged.
That the parents have equal shared parental responsibility for each of the children save and except the father shall be solely responsible for all sporting activities to be undertaken by the children and the mother shall be solely responsible for all academic activities to be undertaken by the children. This order shall not permit the mother to unilaterally change the school/s attended by the children.
That the children spend equal time with each parent in accordance with any agreement reached between the parents. In the event the parents are unable to reach any such agreement, the children shall live with the father as follows:
(a)During each school term, commencing first term 2011, each alternate week from after school Friday to before school the following Friday;
(i)In Terms 2, 3 and 4 in each year commencing on the first Friday of each such school term;
(ii)In the first Term of each year commencing on the first Friday of Term where the children have lived with the father (as hereinafter provided) for the first half of the December / January school holiday period immediately preceding the commencement of term one and on the second Friday of Term where the children have lived with the father (as herein provided) for the second half of the December / January school holiday period immediately preceding the commencement of term one.
(b)For the first half of the school holiday periods falling between Terms 1 and 2; 2 and 3; 3 and 4 in each year.
(c)For the purpose of order (3)(b) above, “first half” shall mean the period commencing immediately after school on the last day of term and concluding at 6pm, extending to 7pm in Easter Daylight Saving Time if applicable, on the Saturday falling nearest the midpoint of that holiday.
(d)In the December / January holiday period commencing December 2011 and each second year thereafter, from 9am on the day falling immediately after the last day of Term 4 and concluding at 7pm on the day marking the midpoint of that holiday period.
(e)In the period December / January holiday period commencing December 2010 and each second year thereafter, from 9am on the day marking the midpoint of that holiday period until 7pm on the day immediately prior to the commencement of school term as observed by any school the children shall from time to time attend, whether that first day is a pupil free or non-teaching day, or a day upon which the children are required to attend school.
(i)For the purpose of orders (3)(d) and (e) “midpoint” shall mean the day arrived at by taking the actual number of days falling during a vacation period, as fixed by the school attended by each of the boys, and dividing such number by two. Thereafter, commencing with the first day immediately following the last day of term four, the figure arrived at shall be added to determine the date marking the midpoint. In the event the result produced is other than a whole number then such number shall be rounded down to the nearest whole number.
(f)The parent with whom the children are not living on 25 December in any year shall spend time with that parent from 7pm on 25 December to 7pm on 26 December.
(g)In the event Mother’s Day falls during a period when the children are with the father pursuant to these Orders then the mother shall spend time with the children from 9am on Mother’s Day until before school on the next ensuing Monday, and the mother shall return the children to school on that occasion.
(h)In the event Father’s Day falls during a period when the children are with the mother pursuant to these Orders then the father shall spend time with the children from 9am on Father’s Day until before school on the next ensuing Monday, and the father shall return the children to school on that occasion.
(i)Notwithstanding the foregoing orders, the children shall spend time with the father each alternate Easter weekend commencing 2012 from 6pm on Easter Saturday until 6pm on Easter Sunday.
That the children live with the mother at all other times.
That on any occasion where the children are to be delivered to or collected from school, it shall be the responsibility of the party from whom the children are departing to ensure that they are delivered to school at an appropriate time and it shall be the responsibility of the parent with whom the children are to commence living for the next ensuing week to ensure the children are collected promptly and in accordance with any requirement of the school at the expiration of the school day.
That in the event of any changeover falling on other than a school day then the parent who is to have the benefit of the children living with that parent, or spending time with that parent, that parent shall collect the children from the other parent’s home and shall return the children to the other parent’s home at the completion of any period when the children live or spend time with that parent.
That each party take all steps to facilitate telephone calls between the children and the parent with whom the children are not living on at least three occasions in any week between the hours of 6.30pm and 7.30pm. In the event no agreement can be reached as to appropriate dates then such telephone calls shall occur on Monday, Wednesday and Saturday of each week.
That each of the parties is restrained from denigrating the other party in the presence of the children or either of them or causing, permitting or allowing any other person to do so.
That the mother shall not discuss the father’s mental health with the children.
That each party is hereby restrained from physically disciplining the children or causing, permitting or allowing any other person to do so.
That the mother is hereby restrained from permitting, encouraging or allowing either of the children to call any person other than the father Dad, Daddy or any similar name or nickname.
That each party shall notify the other in the event that either of the children become ill or injured so as to require hospitalisation or medical treatment whilst in the care of that parent.
That both parties shall do all things and sign all documents necessary to ensure that each of the parents receive all notices and other documents normally received by parents from the school attended from time to time by the children.
That each parent shall keep the other advised of any birthday parties to which the children or either of them are invited and shall make appropriate arrangements if, either child wishes to attend, for the child to attend such party.
That in the event either party will be absent overnight during a period when the child is living with that party then the party who will not be present shall notify the other parent of the intended absence at least seventy-two hours prior to the commencement of such period of absence and upon receipt of such notification the other parent may elect to care for the children on the nights notified. In that case, that parent shall collect the children either from school or the other parent’s home at the commencement of such period of absence, and shall return the child to either the school or the other parent’s home, as the case may be, at the conclusion of such period of absence.
That both the mother and father shall keep the other notified of their current residential address, landline telephone number if available, and mobile telephone number.
That each parent shall keep the other advised of any prescribed medication which shall include vitamins or dietary supplements which have been prescribed for either of the children by a medical practitioner. Each party shall ensure the appropriate administration of medication so obtained for either of the children.
That all outstanding applications and cross applications relating to parenting issues be and are hereby dismissed.
That all issues relating to parenting be and are hereby removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1472 of 2007

MR LENARDI

Applicant Husband

And

MS LENARDI

Respondent Wife

REASONS FOR JUDGMENT

Introduction

This matter has now occupied four hearing days before me. It is a remarkable matter in that the parties have expended enormous amounts of money, nearly $500,000 as a combined total, to fund this litigation. The issues are the future living arrangements for the parties’ sons J born in April 1998 and B born in September 2003. At the present moment, both children live with the mother on a basis whereby they spend nine days in fourteen with her and five days in fourteen with the father. The wife’s position is that she wishes this present arrangement to continue. The husband says that the arrangement should be reversed so that the children spend nine days with him and five days with their mother.
In addition, the parties are in dispute concerning the distribution of their property. The property consists of real estate, personalty, motor vehicles, investments and cash monies. The parties have modest superannuation entitlements.
There has been considerable argument as to amounts to be added back to establish the pool of assets available for distribution. There are also issues of costs following orders reserving costs made in earlier interlocutory proceedings.

Brief Background

Husband born 1971;
Wife born 1972;
Parties marry 1996;
J born April 1998;
B born September 2003;
Parties separate 2 March 2007;
Parties divorce 21 April 2008.

The Parties’ Applications

The husband commenced these proceedings with his application of 15 March 2007. Subsequently he filed an amended application on 4 March 2009. The father amplified his position in both written and oral submissions made to me at the conclusion of the evidence and in subsequent documents filed in relation to the matter.
The wife for her part filed a response on16 April 2007 and thereafter filed a further amended response on 25 March 2009.
The wife also provided written and oral submissions in respect of the orders that should be made.

The Affidavit Material of the Parties

The husband filed and relied upon the following affidavits:
a)His own affidavit sworn 9 April 2009;
b)Further affidavit of the husband sworn 23 April 2009;
c)Statement of financial circumstances of the husband verified by affidavit sworn 8 April 2009;
d)Affidavit of the husband’s brother of 20 April 2009;
e)Affidavit of Mr A sworn 21 April 2009;
f)Affidavit of Mr G sworn 9 April 2009;
g)Affidavit of Dr M sworn 21 April 2009.
Each of those deponents gave evidence in the hearing before me.
The wife for her part relied upon the following material:
h)Her own affidavit sworn 7 April 2009;
i)Her statement of financial circumstances verified by affidavit sworn 7 April 2009;
j)Affidavit of Mr W sworn 7 April 2009;
k)Affidavit of the wife’s mother sworn 7 April 2009.
The wife and Mr W gave evidence. The wife’s mother was not required for cross examination.

Reports

Reports of Dr H of 23 June 2008 and 18 March 2009.

Court Orders

A very significant number of orders have been made in this Court and in the Federal Magistrate’s Court to date. Orders were made in the Federal Magistrate’s Court on 19 April 2007.
In this Court orders were made on 19 November 2007, 31 March 2008, 28 August 2008, 26 September 2008, 10 March 2009, 11 November 2009.

The Husband’s Case

It is the husband’s case that the boys should spend the majority of their time with him. He asserts that the wife is inflexible and refuses to involve him in decisions concerning the boys. Effectively he asserts there is a total failure of communication.
A major issue between the parties has been both boys’ participation in sporting activities. The father asserts the mother does not wish to have the boys actively involved in sport, but rather favours improving the children’s academic standards. She had arranged for J to be involved in coaching. The husband says, as I understand him, that she has done this not of necessity but rather to prevent J from participating particularly in soccer and tai-kwon-do.
As to property, the husband has asserted that the wife is incorrect in relation to when the former matrimonial home was purchased. It is his case that his parents loaned him $50,000 for the acquisition of the property acquired by him prior to the parties’ marriage. The wife challenged the husband’s evidence in this respect and it was suggested by her that any document evidencing the arrangement between the husband and his parents may not have been a proper document.
The husband asserts that at separation the wife took an amount of approximately $188,000 from accounts of the parties and accounts in the children’s names. It is the husband’s case that the wife has never properly accounted for the use of these monies and in her voluminous material in this regard, she is in error.
It is his case that he is a sufferer of bipolar disorder but he has for some time, and continues to be, compliant with medication and accordingly not suffering adverse effects as a result of the condition. He asserts that in the past he may have acted inappropriately particularly in respect of a number of extra marital affairs that he conducted while affected by his condition.

The Wife’s Case

The wife for her part asserts that the children ought to spend the bulk of their time with her and she should be largely responsible for major decisions concerning the children, notwithstanding that each of the parties appears to concede there should be equal shared parental responsibility.
The wife points to a number of instances where she says the father has refused to communicate with her adequately or at all in relation to matters such as notifying her of changes to residential address. It is her assertion that the husband has on a number of occasions said to her that he does not propose to do these things and he does not need to do them.
As to property issues, it is the wife’s case that she has been a) the effective manager of the parties’ finances and b) during at least the latter part of the marriage, the party who has earned significantly more by way of income.
The wife makes serious assertions and allegations in respect of the advance to the husband by his parents. She asserts that this amount was a gift. It is her evidence that the husband’s mother indicated this to her in a conversation. Further she asserts that the acknowledgment purportedly entered into between the husband, his parents and brothers is not a truthful and accurate document. Rather she says she is concerned that it was a document compiled by Mr and Mrs Lenardi senior’s solicitors after the event and back dated to support the husband’s version of events i.e. that the monies were a loan. I was concerned at this aspect of the matter and directed that the solicitor involved, Mr U, be informed of the allegations made against him by the wife. Mr U indicated in a letter to the Court that he did not propose to appear and answer the charges. This is a matter I will return to later in these reasons for judgment.
The wife’s case concerning monies taken by her from various accounts is, as I understand it, that she needed to do this to preserve the funds.

The Hearing before Me

A number of persons gave evidence in the matter and the husband and wife particularly gave evidence on a number of occasions, allowing for other witnesses to be interposed as required. The witnesses who gave evidence and the order in which they gave that evidence is as follows:
a)The husband.
b)The wife.
c)Dr M, the husband’s treating psychiatrist.
d)Mr G, counsellor.
e)The wife.
f)Dr H, the Court’s expert.
g)The husband.
h)The wife.
i)Mr W.
j)The husband’s brother.
k)Mr A.
The husband was the first witness. He gave short oral evidence in chief and was then cross examined by the wife’s counsel. He indicated that the current arrangement was for the children to spend nine days a fortnight with the mother and five days with him. He wanted that situation reversed so that the children spend nine days a fortnight with him and five with their mother. He indicated that his desire was for a short, sharp change. He said he knew the boys wanted more time with him and that more time with him was in their best interests. He said they had spent more time with their mother since separation. He agreed there would be a change if the boys were to spend nine nights a fortnight with him. However he said he believed the boys would adapt quickly.
It was put to him in March 2008 he had said that both boys had said they were scared of their mother as she hit them every day. He said he had taken this from what the boys had told him and also that the mother shouted at them. Asked if J was scared of his mother still, he replied yes he told me that three to four weeks ago and he has told me lots of times. I say to him that there is no need to be scared of mum. I believe he has some reason to be scared.
The witness then asked why he would say that if he did not believe it to be true.
He agreed he had seen Dr H’s two reports. There appears to be no mention in those reports of the children being scared of the mother. He does not believe the children are playing the parents off against each other.
B has said he is scared of his mother but not as frequently as his brother has said this. It is done approximately every two months. He says his mother yells and screams at him. He has not said that he has been hit every day since March 2008. The father continues to believe that the mother hits them on a daily basis.
He says he heard sounds of smacking over the telephone about twelve months ago.
He said he has smacked the children on their bottoms especially J on about six occasions but not in the last year. He recalls smacking B once when his behaviour was not acceptable.
He believes the mother’s discipline is making the boys scared. He said he knows Dr H thinks that he (the father) may have blown things out of proportion. He could not say how many times he had spoken to his son about being hit by Mr W. He said that in January Mr W had hit J in the jaw and twisted his neck. He said he had dealt with this situation appropriately. After hearing of what had happened, he spoke to his solicitor, the police and the Department of Community Services, in that order. He was aware that police needed to interview his son. He was not aware of a DoCS interview. He thought of contacting the mother but considered it best to contact his solicitor first.

He has read the version of the mother and Mr W but does not accept that. J had told him he had been backhanded. He said that the situation was that Mr W had told him to stay in the car but J got out and back into the car at which point Mr W backhanded him then grabbed his jaw. He said it was first mentioned to him two hours after he picked the boys up.
It was put to him that if it were serious, he would have expected to have been informed earlier and he said he could not say. On a later occasion there was further conversation regarding the matter. He (J) said that he was scared and did not know what to expect. He said that whatever had happened did not really hurt and was more of an accident. This was different to what J had said on the earlier occasion. He did not inform anyone of the subsequent different version. It was put to him he did not ring the police because he did not want to put the lesser or more exculpatory version to police. He said he wanted to leave it to police.
He feels the boys are still a little bit scared.
He said he did not have a problem with Mr W being around the boys. He said he had no problem with the changeover being effected between he and Mr W but the boys had a problem with that.
He was taken to the notice of family violence filed on 19 December 2008 and agreed there is no mention of the more exculpatory version in that notice. He indicated he wanted to portray the occasion as serious.
He then gave evidence of correspondence relating to attendance at a birthday party. He said that he had tried to persuade his wife by correspondence to allow J to stay overnight on the occasion of the birthday.
He said he would leave school problems to his wife. He could detect problems with school work. He indicated that his son needed extra help with maths and said he had subsequently spoken to his teacher. When asked about a seven page letter he had written to the school he said he did not recall that letter but agreed the letter was in his writing. He agreed that much of the letter dealt with J’s complaints about his mother and her household.
He said that he had wanted a counsellor to assess the issues and help his son. He said J was not coping after separation and he thought the counsellor would give him (J) tools to work with.
He indicated a counsellor had seen J once and they had then spoken on the telephone. The counsellor would continue to see J. It was put that he wished to paint the wife in a bad light which he denied. It became a matter of concern that after the call with the counsellor, the father understood there was to be no further session. He said that J was not opening up. He indicated there should be a record of calls.
He agreed that in 2008 the wife had arranged tutoring in English and comprehension. The yearly report for 2008 indicated a need for work. J spoke of a need for maths tutoring and the father contacted the teacher and was told that it would not hurt J. At the end of 2007 the teacher had said that he was doing as well as possible having regard to the breakup of his parents’ marriage.
He said there should be an equal balance of school work and sport. He said he and the mother were able to agree up until separation. He agreed that if the children were with him there would be more emphasis on sport. The husband then gave some evidence about schooling but eventually agreement was reached as to the children’s schools and I do not propose to set that evidence out in its entirety. However he agreed he had had contact with the school by means of a letter from his lawyers setting out matters of concern. The child was not settling in, was suffering nightmares and was bed wetting. He was unable to say why he had used lawyers for this purpose.
Further he said that he had seen a teacher in the first two weeks and the school and the solicitors had written some time after that on 25 February. It was put to him that he had been told there was no need for counselling because the staff were not seeing the difficulties that the father observed. He agreed that by the end of term the child was settling in.
When asked as to who had been the person performing most of the caring, he said that he was the main carer. J had been a difficult baby and mother and child had gone to Tressilian. The father said he attended on about three occasions with her.
It was put to him that he had called the mother an idiot and told her she should know what to do. He denied this. He agreed the mother did not work for twelve months following the birth. He said at the time he was driving trucks and working shifts.
He agreed she was the primary carer at that time but not so in the second year. The child was attending day care and the mother was responsible for all drop offs and two or three pickups.
He agreed the parties separated for a short time in 2002 at which time he was having a relationship with another woman. He indicated that this probably had to do with him suffering from bipolar disorder.
He said he had had three or four sexual partners during the marriage and these relationships were always conducted away from the home.
Notwithstanding these relationships he said that he was always available for his children and the affairs were conducted during the day when the children were at school.
He was not sure whether he had been present at hospital on an occasion. It was put to him he refused to stay home. He said no I would not do that. He agreed there had been a number of child care providers. He said he had organised a centre in P.
He said that he had worked for two years up to separation as a truck driver on night shift. The latest start was 10pm with a finish at noon the next day. The morning care of the children was performed mainly by the wife.
On 2 March 2007 violence was alleged and the wife applied for an apprehended violence order which was subsequently not pressed or proceeded with. He agreed that since separation, most of the care of the children had fallen to the wife.
He spoke of an episode on 21 April when they met on a soccer ground. He thought he had taken them swimming that day. He had stopped taking them to the swimming centre the wife had previously used. It was put to him that he had never taken the children swimming and he asserted that he had. When asked about a communication book he said it was never used by him, that the parties can now communicate by email.
He spoke of his girlfriend with whom he said that the relationship is not serious. Certainly that person did not give evidence before me.
He said a trip had been arranged for the wife to travel with the children to Perth prior to separation. He denied that he had cancelled that trip. Indeed he said the trip was for two adults and two children, three of whom were to travel on points and one of whom was paid for. He was asked why he redeemed the points and he said that they got put into her account.
When asked about “stink bombs” he said he had purchased those and was not aware that they had been taken to the mother’s home. He said when they bought them he did not know what they were and said they had been taken out of his room without his knowledge.
When taken to the wife’s affidavit at par 115 where the child is reported to have said that he had no chance to do homework because we were at soccer and the father had indicated it was the mother’s job to make sure homework got done, he did not accept the child had said this to his mother.
He said that he took J to a doctor for a referral, that he told the wife she did not go. He knew the wife did not want the child to have counselling. She believed the husband was blowing things out of proportion.
J was involved in Tai kwon do viper martial arts, which was a form of street fighting based on the Olympic sport of Tai kwon do.
He said that he was aware that the mother wanted him to attend a course but felt he had done enough and does not need any course.
He spoke of J breaking his hand at school and the mother taking him to see a doctor and obtaining a certificate that there was to be no sport for some weeks. He agreed that a few days later he had taken the child to Tai kwon do but the child did not participate. He denied saying he will do what I say.
It was put that he (J) participated in martial arts within four weeks of breaking his hand. The husband denied this. She had rung once about x-rays. It was put that he told her to get the cast taken off and he said that he did not say that. He said the cast came off when he was with me in the holidays. The doctor who took it off said take it easy.
He said that in September 2008 he had taken J to Dr C when the child was off colour and having headaches. It was put to him that he had said to the wife that he could take him where he liked. The wife makes reference to this in paragraph 162 of her substantive affidavit. The husband denied it.
On B’s birthday in September 2008 he agreed he would not leave the boys with Mr W. He denied saying hell will freeze over before I leave them with him. It was put to him there was an agreement to return the boys at 6pm and they were returned at 6.30pm. He agreed. He said the boys did not want to go inside until the mother arrived.
He said he would try to accept Mr W’s part in the boys’ life and will drop the children off to him.
When take to paragraph 174 of the wife’s affidavit where it is alleged B had told his mother he got into trouble from his father and he was hit in the car for kissing the mother and Mr W, he said that it did not happen and he did not know what the child had said.
He was asked about 18 November 2008 which was mufti day at school. The child attended in school uniform. There was other clothing available but it totally slipped the father’s mind. He admits the child may have been teased at school. He did not accept that the child had told his mother that the father had stopped him wearing civilian clothes. At first he said he did not know of the mufti day; later he said he knew from a newsletter and forgot. He denied saying that if he sent the child in other than school uniform the mother would steal that clothing.
He said he moved in late 2008. He gave her his landline telephone number when it was connected. He said he would not provide his personal mobile number. Later he said that if he kept it connected he would give it to her. When asked about the episode on 16 December 2008 (referred to in par 185 of the wife’s affidavit) where the wife was contacted by J’s school to advise that J was unwell and the mother could not contact the father, he said that he was always able to be contacted and the wife was not telling the truth.
He said that he had invited her to B’s ceremony for his yellow belt. He denied saying that if the children did not say that they wanted to live with him he won’t see them anymore or take them dirt bike riding. He said that he had never spoken to the children about them spending “fifty:fifty” time with each parent (see par 202).
As to an allegation that he had made nun chucks with the children, he denied that he had said to the wife he did not care if the making of nun chucks was legal or not, that they had been made and were going to be used in Tai kwon do practice. The husband however conceded that he had made nun chucks.
In answer to the wife’s assertion that when she said she was not happy with this he replied that there was nothing she could do about it and he would make those decisions. He denied this having been said. However he conceded that the nun chucks had been made but said the boys had full protective gear. He said he knew they were illegal and he kept them in his bedroom.
He then went on to say that the mother had never mentioned this aspect. I do not believe this.
He said the nun chucks were not used at the martial arts club, that he uses them with J at home. He considers this to be okay if J is wearing full protective gear.
He said he had changed Tai kwon do clubs, that the present club was a real fighting club.
He agrees that he did not tell her that he was changing the boys’ club. He did indicate to the wife that he was thinking of doing so. He said he did speak to her after the change to confirm it had been made. He said the change of clubs meant the boys had more opportunities.
He said he had met with a teacher and she did not express any concerns.
He said he had never spoken to the boys about Court. He said that when J sees him in a suit, he knows where I am going. He said that when the mother was pregnant with J, he did not ring her to say he was going to drive off a cliff and kill himself. He said that he has spoken of suicide but has never thought to attempt it.
He said that a priest attended at the house, not at his request.
He said that the medication he is taking is Epilom and Edronax. He said that he was a non-drinker and cannot remember when he last had a drink. He was aware that alcohol would have an effect in combination with his medication. He said that he had lost his license four or five times, the last time being approximately ten years ago.
He denied the wife’s assertion at par 296 of her affidavit that he had told her that he had invited Ms Y to the matrimonial home two a three times a week to have sex with him. The wife asserts that he told her that he and Ms Y were in the parties’ bed and that she (Ms Y) was there for about two hours. The wife further asserts the husband said that this has been going on since January 2007. She says that he said he had taken J to Ms Y’s house so he could go swimming with her son.
The husband said that he did not recall any talk about private schools and later said that he remembered one discussion. He said that he would make up work hours and work usually between 8am and 4pm. He can start at 9am and finish at any time. He said he would use day care as required.
He said he has no objection to the wife having a month overseas in 2012. He is aware she wants tutoring to continue. What she does is her concern when the children are with her. He is aware that J is receiving tutoring in maths and English. He has been told by teachers that his son is doing fine. He does not believe that his son needs extra tuition.
He said he received a loan from his parents which he believes was interest free in 1994. He said that his father has made a call for repayment.
He is aware that the wife says that the advance was a gift, made to both of them. She asserts that it was an early wedding gift. He asserted they were not engaged when he received the funds. He said that his parents were not available to give evidence as they were in Italy.
He said she may have spoken to his parents but he believed she had not. He said their relationship was that of boyfriend and girlfriend when he had received the money. It was put to him that he was excited and said that he had received a gift which he denied.
He made an application for a loan in August 2008. He agreed he knew he had to make full disclosure of his financial position. He said he gave information to a female bank officer. There was no question about loans. Liabilities were mentioned. He said he did his best to be accurate and that he filled out the form. He agreed that he had disclosed loans to the ANZ Bank and Commonwealth Bank of Australia. It was put that he disclosed an income of $3,735 monthly with expenditures of $1,431 per month.
It was put to him that when he made the application for finance, he did not believe that a loan existed as between himself and his parents. He said that if he had been asked proper questions, he would have told them about the money owing to his parents. I find this very hard to believe. He went on to say that his parents had given his brother T $40,000. It was put the sum was $80,000 and he was unsure, he did not know if T has repaid the whole or any part of the money from their parents. He said that T got his in the mid-eighties.
He was later referred to his own affidavit at par 38. In that paragraph he deposed to the loan to T having been made in 1987. In par 39 of that same affidavit, he indicated that the loans to his brothers (T and Z) were freely discussed within the family. However he was unable to say if he knew that T had repaid the whole or part of the monies advanced by their parents. To my mind, these two statements are inconsistent.
He went on to say it was not his case that his parents were seeking to assist without wanting to be repaid.
Notwithstanding that the agreement that he produced required repayments, he said that he had never repaid any part of the principle or interest. The document purported to evidence the advances is Exhibit H to the affidavit of the husband. I will return to this aspect of the matter in some detail later in these reasons.
He said his mother was sixty-five, his father seventy-six and not in good health.
When taken to par 64 of his own affidavit, he indicated that the matters of income set out therein (taxable income of $348,490) was incorrect. He did not know what the correct figure was. It was put to him the wife earned more than he and he said not all that much. He agreed that since separation the wife has earned more. He was asked why he wanted her to pay maintenance; he said he did not know, he thought the Court would do it and determine for how long. He said it was to help him raise his boys.
When asked about the difference between an earlier affidavit and his later affidavit (no mention was made of the loan from his parents in the earlier affidavit) he said that it was in his notes but did not get into the first affidavit.
He conceded he knew evidence of his father requesting repayment was very important, possibly the most important single factor in regard to this transaction. He said that when he and the wife separated, the father asked for repayment a couple of months later.
He confirmed that he sold a first property in 1999 and a second property in 2005. He seems to assert that a request was made at the time of each of those transactions for repayment. He makes no mention of that in his affidavit material.
It was put to him that he did not expect his father to make a serious demand for repayment. He said he did and I find this evidence hard to believe. He said there had been further borrowings. It was put to him that he had said earlier there was no discussion of interest which he agreed to.
He said shares were owned by both parties and she signed a transfer. He said his accountant had the papers.
He asserted he owned the Australia Taxation Office $850. He had used a CBA credit card since separation for his own benefit.
He said that he had purchased for the wife firstly a VW and then a Corolla. He asserted he was a trained panel beater and that he was doing up cars for cash between 1987 and 1997. He said he could do this again but has no intention of doing so. He said he receives net per week $670. He said there is some overtime but he cannot say how often. When shown a document, he conceded that in 2008 he received overtime each week.
He then conceded that his income was $905 before tax and that after allowances for superannuation he received in hand $705. He was not sure of the shares he had owned. He was not aware of any dividends paid or payable.
He said he had borrowed from his parents to pay Dr H and to pay legal fees. He says he cannot survive on his present income and needs more for his children and legal fees. He says that he is in need. He says that when finalised he will pay outstanding legal costs.
The wife then gave evidence.
She said she had prepared her documents to be truthful. She said she was truthful to Dr H. She had kept a diary to assist.
She was shown her costs disclosure. She said she had paid into trust $58,000.
It was put to her that in cross examination of the husband, it was suggested to him he had not come to the hospital. The wife said she did not recall he was at the hospital.

She was shown hospital records which show that on 23 August both parents were present and the next day the child was sent home with his parents. The wife’s evidence was that, to her recollection, he was not there. It was then put to her that so far as her evidence was concerned, near enough was good enough. She said this was not so.
The wife said she had asked the school to see J.
She said in the second half of 2007 the husband was asking to spend more time with the children. The wife said she did not care about money, her bills were paid. She said she had never discussed the cost of these proceedings with the husband. She then said that she will not be going to counselling and that the boys do not need it. It should be left to the school to decide if it was needed and if so, she will get it. She did not discuss counselling at school with the father. She said it must have slipped her mind.
She said that she knew the husband was concerned that the children were having difficulties coping with the separation. She said that on 7 May 2007, she had signed a permission slip for J to see the counsellor. When asked if on 25 July she had spoken to the school about J’s behaviour she did not recall. She said it had not been her intention or idea to communicate through solicitors. She said the husband would not talk to her and said that a legal letter was following.
She said the father had told Dr H he did not provide his new address before moving. She was not trying to convey that she had not known for a period of time but said the husband should have given prior notice. She said a letter from her solicitors dealing with diet and dress for the children was a response to her solicitors’ correspondence.
The mother said she had a positive view of the father’s parenting capacity. She agreed she had told Dr H she had not been notified of recent changes for Tai kwon do and soccer.
She said J had played school soccer and in 2008 represented the school. He had played locally and trained and played in school time. She said she would not permit club soccer. She had said to the father that if school work did not improve, there would be no soccer. She considered this to be ultimately her decision. She agreed that tutoring had occurred because she wanted it and this was irrespective of anything said by the husband.
She said that B calls Mr W “Daddy” and she had left it to them. She said she knows it must be hurtful for the husband. After Dr H’s session, she stopped it occurring. She had seen nothing wrong before that time and it was not confusing to the child.
She said it had not stopped altogether. In the first six months of separation the children had limited time with their father. It was put to her that it was significant that the children were calling Mr W “Daddy”. She said it was not significant. She said that if the children had called somebody else “Mummy” she would not have been as upset as the father was. She thought it was appropriate to allow the children to choose. She said she had not thought about whether Mr W had encouraged the children, particularly B, to call him “Daddy”.
She was taken to various paragraphs of her affidavit, for example pars 16 - 20 inclusive and 22 - 27 inclusive. It was suggested that these were exaggerated criticisms of the father’s behaviour. She said this was not so.
In par 29 she said he was critical of her meal preparation.
The wife said that she was concerned the husband was not there but seeing other women. She said she has set out truthfully the situation in her affidavit.
She was asked about an earlier affidavit and an annexure which made reference to shared care prior to separation.
She was taken then to par 303.4 of her affidavit, where she asserted that she had received a sum of approximately $20,000. It was put to her that the wife knew that the amount was some $11,960 when she swore her affidavit. She said she had become aware of the correct figure when she received some correspondence but did not know when. She was asked when she proposed to correct the error and did not answer. It was put to her that she had never put any money from the amount received into the mortgage as she asserted. She said that she did.
In respect of par 302 where she asserted that she was working when the property was purchased, she was asked how long she had been working and she said she did not know.
She said in 1992 she was involved in litigation and in 1993 a judgment had been entered by consent for $12,500 as against her. It was put to her that she put monies received in the sum of $11,960 to pay the verdict and she said this was not so; she had paid by instalments of $500 per month. It was put to her that the amount had been paid out by the time of the parties’ engagement in November 2004. When further cross examined she said she had a clear memory of paying instalments but could not say how much. Her income at that time was about $21,000 per annum. In the proceedings when Mr Stewart, barrister, had been involved she had paid him monies. She said that after the marriage and even before the husband became the financial controller.
It was put to her that her assertions contained in par 302 as to the advance of $50,000 by the husband’s parents were not true and the events did not occur as related by her she said that they did. She did not know at the time that her brother-in-law Z had actually received money but knows now that he already had his money. She said she did not know about the acknowledgement and that she had doubts about Mr U (the solicitor who prepared the document).
In respect of par 303.3 she was challenged as to her assertion that she had paid $11,000 towards repayment of the mortgage. It was put to her that there was no such payment and she says that there was. She conceded there was no documentation concerning this and asserted it was her contribution. Again it was put to her that no monies were paid and she said that there were. She said that she had been looking for properties and saw the parties’ former matrimonial home before the husband. She accepted that it was settled in March 1994. She agreed that 302 is incorrect where it says 2005 and should read 2004. She said she had commenced work at twenty and then said nineteen or twenty. She asserted she had a deal of involvement in acquiring the property. She does not dispute that a sum of $50,000 was provided by his parents. It was put to her she never went to the bank for a loan; she said she did not because of a judgment against her.
She said that in respect of par 309 of her affidavit that she had paid $24,000 from her own savings. She said that in mid-2005 she contributed another $10,000 to the mortgage from her funds. She said that she had paid $11,000 in cash off the mortgage and a further $12,500 in cash off the mortgage.
Doctor M was then interposed by telephone.
He said that Epolim was first prescribed by the husband’s general practitioner at 200ml. He said that he had increased this dosage on initial review to 500ml twice daily. He said that dosage was not altered as at today; it had been higher in 2008. He said that at present he was happy with the husband’s mental state. The prescription had been for bipolar disorder. At page 6 of his report he had set out his diagnosis.
He said the optimal spacing of visits at present was about six-weekly; it has been monthly at times. The scripts issued cover a considerable period with two repeats. He agreed he may have sent out scripts by mail. He was not able to say whether or not the husband would ever have had sufficient medication for five months. He agreed that between 26 October 2006 and 27 March 2007 he may have forwarded scripts. As to auditory hallucinations, the husband was hearing voices intermittently. The husband believed he was hearing the devil. He was told to hurt himself but there was no suggestion that the voices told him to hurt others. So far as tourette’s syndrome was concerned; there was a facial tick but no treatment was prescribed.
Doctor was aware he had seen a Ms N. Doctor said he was not familiar with whether he was seeing a counsellor but he may have mentioned it.
Doctor said that the husband told him his alcohol intake was social. As to alcohol’s effect on bipolar disorder he said alcohol could be consumed without disastrous consequences. He said Epolim can magnify the effect of alcohol.
He said he had also prescribed Edronax since 2006.
He said that the wife had endeavoured to speak with him on several occasions regarding the husband. He did not have the husband’s consent to respond to those calls; indeed the husband declined to consent. The husband indicated he was not comfortable with Doctor discussing him (the husband) with the wife.
Mr G was then called by telephone and gave brief evidence about his observations as to the effect that separation can have on children. He spoke of the children becoming upset and disturbed. He says that their emotional wellbeing could be quite significantly affected. He said that J when he first saw him was distressed at the marriage breakdown but has improved. He expected progress in the next twelve months and beyond and expected to conclude therapy in three to four sessions. The child had been brought to him by the parents alternately. The father attends when the wife brings the boy. He said he does not know why the husband comes. Mr G said he did not recall he said he had been hit on 8 November. He thought it was the father who brought him on that occasion and spoke to him afterwards. He then said that 8 November was an error, it was 28 November. The boy had said that last Friday Mr W hit me in the face.
He said he had produced old notes in answer to the subpoena. The report did not mention a hit. He said he had recorded the boy’s explanation not mentioned in the report J hitting Mr W’s hand away. He said it was possible that hitting away may indicate some confidence.
He said that in his view it was not an episode that required reporting. He said he thought in any event that police had already been contacted.
The child was observed to be sad, angry and depressed. Mr G said that his notes record that the child reported that what was done to him by Mr W hurt a little.
He said that after the mother made allegations of bias, he decided to have little to do with both parents. The mother complained that he was treating her son without consent.
The wife was then recalled.
The wife said that she continued her belief that the husband had created the document (the acknowledgment) since the litigation started. This was done to assist his case. She was shown the acknowledgment which, as I have already said, was annexure H to the husband’s document. She said she did not accept this was a genuine document.
She had no document or other evidence to support her contention that the document had been created at a much later time than appeared on the face of the document. She said enquiries had been made; she wanted the original produced and questions answered. She accepts that that which she says is a serious allegation. She said she did not make allegations lightly and would not fabricate evidence to assist her case.
She said the parties were engaged for a year and a half. She said that she knew the settlement of the purchase of the L Street property was in March 1994. She received copies of settlement statements in 2007.
She conceded the date mid-1995 referred to in par 302 was incorrect. She said that she believed they had been engaged nearly two years and she was twenty-two when they got engaged. She said she was first told about the advance by the husband’s parents after he had proposed, and within days of that proposal, in November 1994. She said that until then she had no idea of how the purchase was funded. It was put to her that she had not been to the bank and she agreed but said she had had dealings with the agent in relation to the purchase. She agreed she did not know at the time of purchase how the funds had been made up.
As to par 303.3 she said that she had monies from savings in turn from wages; these were paid into an account. She said her grandmother had given her cash of $10,000. It was put that her statement about her contribution by way of savings was untrue and she disagreed with this proposition. It was put that she had never applied a cash sum and she disagreed.
It was put to her that she did not provide $10,000. She said she did. She was shown 1994 and 1995 tax returns which she said were correct and agreed that there was no mention of interest in bank accounts shown in those returns.
It was put to her that the parties had not lived together before marriage and she said that they did. It was put that both sets of parents were disapproving of the parties living together before marriage.
She said that the monies from her grandmother went to pay the mortgage not to renovate. She did not know when the mortgage was paid out. She did not recall if an amount of $15,000 constituted a separate loan. She said however that she was party to the $15,000 loan. She recalled going to the bank. She got her grandmother’s advance first. She was asked about monies provided for the wedding and it was put to her that she was making her evidence up in this regard which she denied. She said she had seen documents before court on Monday that had been in boxes with her. She was shown Exhibit 6.
She said the husband acquired a Tranzam motor vehicle after marriage, he also had a Cortina. He had done up cars before marriage at his parents’. He did not pay any money derived from that source towards the mortgage. He applied rent and his wages. He used money from the cars to fund drag racing.
It was put to her that the sale price for L Street was $168,000 not $185,000. The wife said the amount received was $162,000 net.
Where she gave an estimate of tax deductions in par 322 of her affidavit she said these were based on earlier deductions.
It was put to the wife that at separation she took $188,000 from the accounts. At par 397 of her affidavit the wife detailed amounts so dealt with for a total of $188,797.73. The wife was then asked about the amount paid to an architect. Asked specifically about an account 0653 she said monies in that account were used to pay the mortgage and school fees.
She was questioned about her costs disclosure. She said her salary was paid into her cheque account and the sum of $31,000 transferred. She said that she kept joint monies in a separate account.
She said that the boys can tell some fibs. She agreed that she had read in a report that J expresses a wish to live with his father. She said the child had been upset when she would not let him go to his father. She said that she and the husband could not agree on the husband’s time with the boys. She had read the judgment of Federal Magistrate Lindsay and expected there would an agreement as to increase. She had ongoing concerns as to the husband’s mental health. She agreed that she opposed all increases proposed by the father. She agreed there would be no time other than as provided by orders.
She was then taken to portions of the report of the expert Dr H of 23 June 2008. Taken to par 92 she said it was not obvious that the child was distressed by restrictions placed on his activities by his mother. This is a statement in direct contradiction to Doctor’s observations. As to par 98 she accepted Doctor’s opinions as to the husband’s own insight into his disorder and particularly said the husband was compliant with treatment. Taken to par 100 of that report she said that she allowed J to play soccer for his school, some six matches. She said the children attend practice at school. She said she had attended a swimming carnival and walkathon but not a soccer match.
Significantly the mother said that she did not accept that the restrictions she placed on the children’s sporting activities were a matter of significance. She said that if she had known the restrictions were having an effect then she might have acted differently. She said she was trying to balance all factors and matters.
As to par 72 of the same report which spoke of J’s anger she said that the anger was not with her, he was frustrated with his brother. If he was angry he was not telling her. She agreed this will be a terrible situation. She said the husband had been angry but she could not recall when this last occurred. She then suggested it would have been December 2008. She does not know if the child is angry. The child is now not articulating wishes to see the father.
She said she did not agree with Dr H’s indication that J’s primary attachment was with his father. She denied that she had ever said that the child could live only in one house. She denied that she had never said that she was the parent and her decision was final.
She said the boys might be happier if they see more of their father but this would not be in their best interests.
She said she was disturbed at the opinion of Mr G and wanted to change counsellors. She denied she was dismissive of the father’s role. It was put that the wife had said that the legal process would take a very long time. The mother denied that she had said I have lots of money for legal fees. The mother said that she had called him abusive names but not in the precise terms alleged by the husband. Speaking of a telephone conversation with J on 6 February 2008 she said he was not crying or angry with me. The child was upset because I listened in to his phone call. She said she did this because she was concerned they would go camping against orders. She had never said to her son to ring his father back and give an excuse for crying. If she had done so, that would be horrific.
She said she had carried out her own research and spoke to the school counsellor twice in mid-2007.
She said that she did not think that brining Mr W into the household with herself and the children had any effect. There had been an intimate relationship from late July 2007 and within eight weeks he had moved in with her and the boys. She agreed she told Dr H that their present accommodation was perfect.
She said that in 2008 the choice was between club soccer or tutoring. She was asked if she could move the tutoring to Tuesday she said in 2009 but not 2008 this could be done. She decided tutoring should override soccer. She made the final decision in that regard. She said she agreed about Tai kwon do.
She agreed she may have ignored the children’s need to spend time with both parents. She said Mr G indicated he could not discuss matters concerning J with her. She said the issue of J playing soccer in 2008 was never raised. It was put to her that major training was on Tuesday and she would not agree; she said it was Friday and she had tutoring on Tuesday which cannot be changed, it is between 6.30pm and 7.30pm. She said he did not play on Anzac Day as there were family events planned. She said the first she knew of any difficulties when J was returned. She knew Mr W was angry and she was upset and angry at him.
She said I am the primary disciplinarian. I used to smack. She said that the husband would not give an undertaking not to chastise. She said the child had done nothing wrong and when asked why she was angry with him she said because of the involvement of authorities.
In a complaint to the Department of Community Services she had reported B saying the father was hitting him. She said she sees Mr W as an extension of herself for discipline. She now knows his income. There are no plans for marriage but strong indications for it. She said she will seek a credit for school fees against child support.
The next witness called was Dr H who had prepared two reports in relation to the matter. In his report he had referred at par 5 to a gradual introduction to their step-father and their new home. He was asked to assume that Mr W had said he and the mother had met in July or August and he had moved into the home in September. Doctor conceded that is not what he would describe as gradual.

He said he thought he had detected a shift in the mother’s attitude between reports in that in the second report she acknowledged the importance of the boys having a relationship with their father.
J asked to play soccer but she had said there were better things for him to do. J believed she had a negative attitude to soccer and to his father. The child was upset at comments by his mother concerning his father.
She was asked about an episode where the father notified her there was a soccer match the next day. She responded that a relative was visiting. It was put that this would indicate the mother was prioritising other matters over soccer. He agreed that there had been discussion about the Tai kwon do ratings. He said the father had refused to allow the boys to attend swimming and tutor groups. There was concern that the father had not notified the change of Tai kwon do clubs to a fighting club. The mother felt that the father had placed pressure on the child. It was discovered later that it was not a grading weekend.
He said that the mother felt that the father expected to exercise sole authority for boys’ sports, whilst leaving her to pay any fees involved. He did not consult her.
The father agreed that he had not provided all the information that may have been appropriate. The mother said he had not supplied phone numbers and had not notified change of address.
Doctor was shown a letter from the husband’s solicitors to the wife’s solicitors of 26 November 2009. This letter became Exhibit 8. Doctor then said that this altered his view as to the father not notifying the mother of matters concerning sporting events.
He indicated that J was getting different responses from each parent, causing him difficulties, on a range of issues. Doctor was of the view that J would say different things to each parent. Doctor was of the view that this must have an impact on his relationship with both parents.
Doctor said that J has become adjusted over time and the further on from separation he expects he will become more well adjusted. There is still a lack of communication between the parents. J is in the position that he is disappointed at the mother’s attitude towards the father. The Doctor said however he believed he would adjust and cope with this situation.
He adhered to recommendation (1) at page 4 of his report of 26 March 2009. He said it would be better if the father had sporting time with the children and the mother academic time with them. He said what was required was methodology. He said it was possible the children will adjust to the father’s proposal but that was not something he would support.
To counsel for the wife he said there was a risk that the children’s academic standards would be detrimentally affected if the children were to spend time with the father in accordance with his proposal (nine days a fortnight with him and five days before night with the mother. He said the father was undermining B settling in with his mother’s household and this was as a result of the father’s anxiety. The child had become distressed and he agreed both boys were progressing well.
He said that J’s choice to spend time with his father was largely sport based and he was concerned that the father may overload J with sport. However he conceded J’s wish to spend more time with his father was not based solely on sport.
It was suggested to him that against the background of the husband’s mental health issues, the mother’s reaction is that of a loving mother supporting her children. Doctor said it was understandable that the mother was not able to see how important the father was in the lives of the boys. The father’s behaviour as described by the mother would make her endeavour to protect them.
Doctor said that the father’s suggestion of nine nights per fortnight with him and five to the mother would not necessarily be of benefit. He agreed that J had expressed a wish to spend equal time with each parent. He said having both boys at the same school would be a benefit and the school would accommodate their academic needs.
When asked about the benefit to the father of a parenting course he said all adults would benefit from undertaking such a course. He agreed that in the circumstances of this case there was a need for very clear direction.
The husband was then recalled.
He indicated to the wife’s counsel that there were no problems with family photographs; they could be copied at the wife’s cost. He indicated there had been an approximately equal division of contents. When asked about his brother’s financial arrangements with the father, he said T had told him it was none of the husband’s business and it had nothing to do with him. He said he signed the document in 1995 and that was before he married. He said he was on his own when he went there (it was understood to mean to his parents’ home). It was put to him it could have been signed more recently he said no.
The wife was then recalled.
She indicated that figures that she had compiled and which became Exhibit E33 to her affidavit had come from group certificates. The source material was income from wages back to 1991. She agreed that the husband earned more income than she had in the beginning of the marriage. The figures she attributed to him came from his pay slips. She said she had received a short term incentive in about September 2008 of approximately $16,000 which she thought she had included in her affidavit and statement of financial circumstances.
She was asked about her termination from her employer; she received a lump sum which she paid to the ANZ Bank into a further account. When asked about a payment on 13 December 2007 of $37,000 she did not give any explanation. She did not know, she said, Mr W’s income.
When asked about a payment to RB of $8,000 it was put to her it was only $6,600 and it was further put that an amount of $8,000 had been transferred but only $6,600 paid to RB. It was put to her that after 28 March she put monies back into account ended in numbers 653 transferring monies from account 409. She agreed she had not produced all cheque butts. She asserted that the material set out in Exhibit E36 was a satisfactory and adequate explanation of how monies were expended. She agreed that she had $188,000 following separation. She said she paid legals out of account 653 using her wages. She indicated a redraw form in the sum of $350,000. She said she wanted to pay the husband out but no application for finance had been made.
She promised she would take J to training on a Tuesday night.
The wife then gave evidence that caused concern. She said Mr U had said that he needed the husband’s signature and that she (the wife) should forge it. She said she did not sign but contacted her husband and met him at the side of the road; she told him she would not sign it.
Mr W was then called.
In answer to the husband’s counsel he said he had never encouraged the children to call him Daddy but did not discourage it. He felt it best for the children to be comfortable. He did not think about the effect of the children calling him that on the children or the father. He said he had discussed his role in parenting the boys with the wife. Further he said he was involved in day-to-day parenting and there had been a discussion about ground rules. He said he does not discipline the children except by means of “time out”.
In relation to the episode in the car when he had held the child by his chin, he conceded he overstepped the mark.
He said he gets on quite well with J. He had not discussed the contents of Dr H’s report (the first report) with the mother. He said he supported her application for nine nights per fortnight. He agreed with her choice of school and says she has primary care. He said there had not been real discussion concerning her proposals between themselves.
He said J had not played soccer in 2008. He had not discussed soccer with the wife in 2008 however there were discussions concerning soccer in 2009.
He said he had taken J to training once.
He said that J goes to tutoring on a Tuesday night. He agreed he and the wife had some discussion about parenting, concerning things that were occurring in the home. The wife had not discussed her refusal for J to play soccer with him.
He said that enjoyed soccer and it was not his place to interfere with taking him off at half time. Over the incident of physical contact with J he says he was angry on the day, not at J, because they were late. He said he has apologised to J but not to the father. He said he and the father do not have a dialogue and they need to think about how we will communicate in future.
In respect of Anzac Day he said there was an arrangement for an aunt to come over. He was told that arrangements had been made.
He said he earns $96,000 per annum. He and the wife have lived together for eighteen months. He said that he pays $1,800 every two months for expenses and upkeep of the household.
The next witness was the husband’s brother Z.
He said the wife was a good mother. He said that his parents had loaned $80,000 to him a long time ago. He said he should have repaid it on the sale of a property but did not do so. He then bought and sold another property. He said both his parents were getting on and were unwell. It was put to him he did not expect to have to repay the money. He said that he would repay when he could but he could not at present. He did not recall any mention of interest. He was asked if there was anything about interest in the document which he executed in 1995. He said he needed to refer to the document; 1995 was years after he borrowed the money. He did not think his brother T had repaid his loan from their parents.
It was put to him that when the money was advanced it was not intended that it be repaid. He said that he intended to repay it. He said that he assumed parents would leave all their money to the children. He said the parents were now back in Australia.
The last witness called was Mr A who gave evidence by telephone. He said that the mother was a good mother. He said he had sworn an affidavit prepared by her solicitor. He had sworn affidavits to be impartial. He said the father is not a bad parent. He said the wife had spoken to him and told him that the husband was unstable and the children were frightened of him.
He said that the father confided in Mr A and although threatening suicide there was no fear that he would carry out his threat. He said the wife never raised any concerns. He said that the father’s bipolar condition might explain his extramarital affairs.
This then was the evidence of the parties.

The Effect of the Parties’ Evidence

In this case there are a number of matters where the parties are in absolute disagreement. It will be necessary for me therefore to deal with the credit of the parties and determine which of them or either of them I choose to accept where they are in conflict.
I should say at the outset that I perceived in both parties a desire to prevail where the parties were in conflict. I am unsure as to the origin of the high level not only of conflict but total inability to reach agreement virtually in any shape or form. They are both highly determined people and both seem to have little doubt that the position they take is correct.
The parties continue to be in real dispute concerning the balance to be achieved between academic and sporting activities in their lives.
The husband I found to be quite unsure of matters of a financial nature. His evidence concerning his income for the year ended 30 June 2005 he stated was wrong, however he did not know what the figure should have been. However I am not satisfied that this is an indication the husband was endeavouring to be deliberately untruthful. I am satisfied he did not have a fine grasp of financial detail. I do not accept the wife’s assertion that he became the money manager for them at about the time of marriage.
However I also formed an impression that the husband does not have a great ability to focus on the needs of the children where those needs do not exactly coincide with his own. Indeed, I am satisfied that winning the contest has become so important to him that he is prepared to put his own wishes before those of the children.
It is to his credit that during the course of the hearing that he was able to reach an accommodation with the wife as to the schools to be attended by both boys.
The father clearly places a much greater emphasis on sporting activities than does their mother. I am satisfied that he is of the view, however formed, that the children’s academic interests are being met by their schools without the need for additional coaching that the mother insists is both necessary and appropriate.
So far as the husband’s evidence is concerned, I am satisfied that he gave his evidence in a fairly straightforward manner, indeed at times giving answers that did not advance his case.
However the battle between the parents as to what will take priority, academic or sporting achievements, continues. It seems that the husband is absolutely determined to get his own way in this regard.
His current application that the boys live with him and spend time with their mother is a further indication of this mind set.
Much evidence was given about the boys’ involvement in soccer and Tai kwon do. He indicates that the boys’ participation in Tai kwon do is safe and that it is an Olympic sport. However he did give evidence that I found disturbing of making nun-chucks with the boys at their home. As I understood his further evidence, he instructs J as to the use of these implements at home. It is of course the case that nun chucks are prohibited weapons in New South Wales. The father appeared either absolutely unaware that the weapons were prohibited or absolutely unconcerned at that fact. On balance, I am satisfied he knew that the implements were illegal but chose to continue to manufacture and use them notwithstanding.
As to what is clearly an existing mental condition, he asserts that he is now well medicated and managed and that his bipolar condition is not something with which I should be concerned. However it is of concern to me that he can use this condition as excuse or explanation for his affairs during the marriage. In other words, it seems not to affect him when he wishes it not to but it is a reliable let out for him when he is looking for an excuse.
As to matters financial I am satisfied that he was not particularly good at money management.
So far as the wife is concerned, where the children are involved I am satisfied she is every bit as insistent and determined upon obtaining her own way as is the husband. These parties in the past have argued about schools. They continue to argue, as I have already said, as to the comparative importance of sport and academic achievements.
I am confused as to some of the wife’s evidence. Her preparation for this case was meticulous. It could be said that she has pursued every item of importance with great care and attention.
However in her oral evidence I found her unreliable in certain aspects of the matter.
I am satisfied on the evidence I have heard that she has at times deliberately made plans and put in place arrangements to limit the husband’s time with the children. I am satisfied that she sees little real value in J being involved in soccer. She does seem more prepared to acknowledge that the boys may obtain some benefit from practicing Tai kwon do. However, and having said that, I am satisfied that she sees in all things that she should have the final say and that things should occur on her terms.
So far as property issues are concerned, I am not satisfied that the mother is the complete and accurate reporter she would have me believe she is. Her affidavit is of great length and complexity. Additionally, there is a separate and extensive folder of annexures to her affidavit as prepared. However when taken to her material in any detail, it seemed to me that her knowledge was not precise. Clearly she had made incorrect entries and clearly some of her source material was not as she would have me believe. In this regard, at annexure 36 she had set out what she stated were comparative incomes. However these figures were from group certificates and not assessments for taxation purposes. A tracing of the money she took from funds in the parties’ and children’s names at separation I found less than adequate.
There was in evidence before me a document purporting to be an acknowledgment of loans made between the husband’s parents as vendors and the husband’s brothers T, Z and the husband as borrowers. That document is Exhibit H to the husband’s affidavit.
It is dated 16 October 1995.
The wife challenges that agreement. Indeed she asserts that the solicitor for Mr and Mrs Lenardi Snr, a Mr U, had manufactured the document well after the event to endeavour to establish loans by the senior Lenardi to each of their sons. Further in cross examination she asserted that Mr U had asked her to forge her husband’s name on a document which she refused to do.
These are very serious allegations, made against a practising solicitor. They are matters that would involve, if made out, potential criminal and certainly professional sanctions.
In this regard, I am satisfied that it is appropriate to apply the test in Briginshaw & Briginshaw[1] in determining whether or not the wife has proven her allegations as to the creation of the document. The Briginshaw test requires that the more serious the allegation, the higher the level of proof required to establish it to the comfortable satisfaction of the Tribunal.
[1] (1938) 60 CLR 336
It is the wife’s case that the advance by Mr and Mrs Lenardi Snr was a gift made to both the husband and to her. It is her case that the husband’s mother told her it was a gift to both of them. The husband denies that they were engaged at the time the advance was made.
The wife’s assertion as to the later, subsequent creation of the acknowledgment of debt was raised by her in cross examination. It may have been expected, knowing that the agreement was to be relied upon by the husband, and had in fact been annexed to his affidavit, that her own very detailed evidence in chief might have dealt with this aspect of the matter.
If for no other reason an earlier raising of the issue would have enabled Mr U to be given notice of the allegations against him and thus have afforded him a proper opportunity to respond.
I am concerned that the husband did not disclose the arrangement with his parents as a loan when he made an application for a bank loan in August 2008. It was put to him that at that stage he knew there was not a loan between himself and his parents. He denied this. He asserted that had he been asked the property questions he would have told the bank about the money owing to his parents. I find this somewhat difficult to accept. Further I have some concern that the husband initially said his parents were in Italy and therefore not able to give evidence. His brother in his evidence indicated that their parents had returned to Australia.
There was no attempt to put any material before the Court by either Mr or Mrs Lenardi Snr. It was submitted to me that having regard to the line of authority commenced in Jones & Dunkell[2] that I would thus accept that the evidence of either Mr or Mrs Lenardi Snr would not have advanced the husband’s case. I accept that it is a great pity that the parents, on the face of it the makers of the loan, were not available to give evidence. I am satisfied that whilst I cannot find they would have advanced their son’s case, I am not able to make any finding that their non-appearance in this matter in any way contradicts the assertions of the husband.
[2] (1959) 101 CLR 298
The husband is to some extent supported by the evidence of his brother as to the making of the agreement and he supported the husband in his contentions as to when the agreement was made and the factual basis underlying it.

I turn to s 60CC(3)(m) which is in these terms:
(m) any other fact or circumstance that the court thinks is relevant.
A matter to be taken into account here, in my view, is the father’s mental condition. I have evidence from Dr M as to the father’s compliance with medication. I am satisfied that so long as the father does not cease taking his medication and does not consume alcohol to any significant degree then his bipolar condition presents no difficulty for his care of the boys. Indeed, it would seem to me that the mother by conceding the father should have five nights per week with the boys is not concerned that the boys will come to any harm with the father because of his condition. Having said that, I am of the view that the father has in the past used his condition as an excuse when it has suited him to do so, for example; he blames the extramarital affairs he conducted during the marriage on his condition. To my mind, this does him little credit.
The next section to which I must have reference then is s 61DA. The section is in these terms:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, 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.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, I have set out the allegations concerning violence that have been made that may be relied upon to render the presumption not applicable. I am satisfied for the reasons I have endeavoured to set out earlier that the allegations of violence do not create, or give rise to, in the words of the section, a reasonable belief that a parent or person living with a parent has engaged in abuse or family violence.
Subsection (4) provides for the rebuttal of the presumption by evidence capable of satisfying the Court it would not be in the child’s best interests for the parents to have equal shared parental responsibility. I have real concerns on the evidence that I have heard and read that these parties have in the past found it very difficult to communicate with each other for the benefit of the children. Neither of them in the past has demonstrated any apparent ability or capacity to make concessions or even minor adjustments as sought or requested from time to time by the other.
However, it is clear that both parties seek an order for equal shared parental responsibility. For the benefit of their sons, these parties must learn to work together in some cooperative fashion so as to enhance the level of parenting that they can provide singly and together for the sake of the children.
As I have referred to earlier in these reasons, a very major dispute between the parties lies in the father’s open expectation to have the boys involved in more sporting activities than the mother would choose, whilst the mother seeks to have the boys more involved and immersed in academic studies.
If these parties are to exercise equal shared parental responsibility, it is obvious, indeed painfully obvious, that they will somehow have to make joint and cooperative decisions for their boys. However I am persuaded to make an order for equal shared parental responsibility save and except I will give the father parental authority in respect of sporting activities and the mother parental responsibility in respect of academic activities. This will present of itself a significant test of the parties’ real willingness to share parental responsibility for the children and deal with each other in order to do so. No doubt there will arise clashes between sports on the one hand and things academic on the other. I do not propose to provide or give one party a priority over the other where sports and academic achievements clash. That will indeed be something that the parties, exercising the equal shared parental responsibility that they contend for, must solve for themselves.
I turn then to the next section I must have regard to, s 65DAA(1), which is in the following terms:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)     the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Having indicated that I propose to make an order for equal shared parental responsibility, I am now required to consider the children spending equal time with each parent and to proceed in considering that situation in accordance with the various subsections of s 65DAA which I have already set out.
Their Honours of the High Court in the matter of MRR & GR[9] said at par 13 of their joint judgment:
“Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[9] [2010] HCA 4
Their Honours at par 15 of the judgment said:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Thus I must firstly consider whether the child spending equal time with each parent would be in the children’s best interests. I am satisfied that while both parents have shortcomings which I have endeavoured to identify in these reasons for judgment, particularly their desire to be proven right and win the contest over the boys, I am satisfied that if they can take their focus from that they are both parents capable of providing warmth, love, comfort and security for their boys. Of course a part of that will mean that they will each have to develop an understanding of the importance that the role the other parent plays in the boys’ lives.
I am satisfied that it is of importance to ensure that the boys receive a proper balance of both parents in their lives, not only by virtue of the fact that the parents are to exercise equal shared parental responsibility, but also in recognising that the time actually spent with the children by each parent will be of importance. Neither party contends that they should have equal time with the boys. However I am bound by the Statute to consider it. Having regard to the matters I have endeavoured to set out earlier in these reasons for judgment to s 60CC(2) and (3) particularly, I am satisfied that both boys, particularly J, want to spend more time with their father. I am equally satisfied that I should accept Doctor’s evidence that such time with the father ought not be as great as he (the father) contends for. I am satisfied therefore that the time the children should spend with the father ought be less than nine days to him and five days to the mother in each fourteen. Similarly, I am satisfied that the mother’s time with the children must be reduced to accommodate this and thus a continuation of the arrangement of nine days with her and five with the father in each fortnight is no longer appropriate.
In all the circumstances of this case, I am satisfied that it is in the best interests of the children for them to spend equal time with each parent.
I then turn to consider whether the children spending equal time with each of the parents is reasonably practicable. Subsection (5) which I have set out in these reasons for judgment identifies matters that the Court must have regard to. The first of those matters is the proximity of the parents to each other. In this case I am satisfied that distance between the parents’ households now and in the future will present no impediment to the children spending equal time with each parent. The children move between the parents’ households now, usually from their school. This has presented no difficulty in the sense of requiring either party or the children to travel for long distances and I would propose that I would construct orders that will require a minimum number of changeovers. This will mean that travelling for the boys will be minimised. Under this heading, there is no impediment to an order that the boys spend equal time with each parent.
I then turn to the next subparagraph, concerning the parents’ capacity to implement an arrangement. As I have indicated, both parties contend that the boys should spend nine nights a fortnight with them and the remainder of that fortnightly period with the other. I have made comments throughout these reasons for judgment as to the parents’ attitude towards each other. However the parties themselves contend for equal shared parental responsibility and each of them clearly concedes, by virtue of the fact that they say the children should spend five days with the other parent, that they acknowledge that that parent can care for the children adequately during that period.
It is the level of communication and trust that is a problem in this matter. Whilst acknowledging that at the moment the situation in regards to cooperation is markedly poor, I am of the view that with these orders in place, the parties’ ability to communicate and facilitate, or to use the words of the section; implement an arrangement for equal shared time will (and must) improve.
As to subparagraph C, I have said in the above paragraphs all that I would wish to say.
As to subparagraph D, the impact of the arrangement on the children, I am satisfied that J particularly seeks more time with his father. I am conscious that Dr H has indicated however that to go from the present arrangement five days in a fortnight to the father’s proposal of nine days per fortnight, would be more time than was in the best interests particularly of J. Therefore it seems to me that J and B would for themselves be satisfied with an arrangement that had them spend equal time with each parent. Whilst that of course is not of itself determinative, I am satisfied that it is a matter of some significance in reaching an ultimate decision.
There are no other specific matters that I would make reference to under the heading of any other circumstance.
I have therefore come to the conclusion that it is reasonably practicable within the meaning of the Act, and having regard to their Honours of the High Court in MRR & GR (supra) that the children should spend equal time with each parent.
Thus having regard to the matters that I am required to consider, I am satisfied that in all the circumstances of this case the children should spend equal time with each of their parents. I will order accordingly.
Having decided that it is appropriate for the children to spend equal time with their parents, I must now decide how this is best achieved. I propose to give the parents the opportunity to arrange for themselves how the time to be spent with each of them is to be implemented and arranged.
In the face of an order that there should be equal shared parental responsibility, one would hope that both parents would see making such a decision as one of the most significant matters they would have to address and decide upon in discharge of their duties.
However in the circumstances of this case, that is highly unlikely to occur, at least in the immediate future.
Therefore, and in the event the parents cannot agree, I propose to order that the children spend, during school term, week about with each of their parents with changeovers to be effected from after school on Friday afternoons.
Both parents have contended for equal shared parental responsibility. Both parents will of necessity be required to provide clothing both of school and casual nature for the boys whilst they are with them. One would hope that an arrangement can be arrived at so that some cooperation can be achieved by the parties to this end but if it cannot, each party will have to make their own arrangements.
I have indicated that I propose to make the father responsible for decisions concerning sports and the mother for things academic. Neither has priority over the other and they will therefore necessarily need to communicate and somehow for themselves fashion a means whereby a collaborative decision can be reached.
I propose to order that the school holidays be shared with the husband having the first half in the short school holiday periods. This will not change from year to year so as to minimise the possibility of confusion and dispute.
However Christmas holidays in December and January will alternate so that Christmas days alternate between the parents. However I will provide that the parent not having the children on Christmas morning will have them overnight from Christmas night until the evening of Boxing Day. I will not, however, order week about time during the December / January school holidays. Time is to be shared equally and in my view there is nothing to be gained from dividing it other than in half. Accordingly, I will break the holidays into a first and second half. I will order that the father will have the second half in the period December 2010 / January 2011. Thus he will have time with the children between Christmas night and the evening of Boxing Day.

In addition, I will alternate Easters between the parties bearing in mind that Easter may or may not fall during a school vacation period.
I will make orders for collection and delivery of the children to and from school wherever possible. When changeovers are required on other than a school day I will order that they be to and from the parties’ residences.
I will make further orders regarding Mother’s Day and Father’s Day. I will make orders for telephone calls. I will make orders restraining the parties from denigrating each other, physically disciplining the children or permitting any other person to do so. Two particular restraints I will impose upon the mother; 1) that she not discuss the father’s mental health with the children; and 2) that she not permit any other person to be called Dad or any similar name.
The parties will notify each other in the event of any injury or illness.
I will insert a clause that in the event either party is to be absent overnight whilst having the children live with him/her that that parent shall afford the opportunity to the other parent of caring for the children. I make this order so as to allow for care by a parent in the circumstances where the other parent is away from home for whatsoever reason.
This means of course that the orders I propose to make will be extensive. It is to my mind somewhat contradictory that having agreed on equal shared parental responsibility that such a raft of orders should be required. However it is to my mind important, indeed essential, that the parties have the basis and framework of a set of orders that they can work under until they are able, putting their dislike for each other behind them, to realise that it is a matter for them as the parents of these boys to start making collaborative, informed decisions concerning what is best for their boys, and how that is to be achieved. I therefore make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding four-hundred-and-eleven (411) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 8 December 2010

[2010] FamCA 1114

8 December 2010

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