MARINO & SALVAI

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO & SALVAI

[2015] FCCA 2226

Catchwords:
FAMILY LAW – Parenting and property dispute – father seeking equal time with children and equal property division – mother seeking sole parental responsibility and reduced time with father – mother seeking 70/30 property division including superannuation – father’s history of abusive behaviour to the mother – mother alleging substantial drug use by the father – father denying drug use – Independent Children’s Lawyer recommending against equal time – impracticality of equal shared parental responsibility – orders made largely as sought by Independent Children’s Lawyer – small property pool – just and equitable each party retain their superannuation – future needs favouring mother – mother to receive 70 per cent of non-superannuation assets.

Legislation:

Family Law Act 1975, ss.4AB, 60CC, 61DA, 75(2)(o), 77A

Goode v Goode [2006] FamCA 1346
Stanford & Stanford [2012] HCA 52
Jones v Dunkel (1959) 101 CLR 298

Applicant:

MR MARINO

Respondent:

MS SALVAI

File Number:

MLC 6011 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

9, 10 & 11 June 2015

Date of Last Submission:

11 June 2015

Delivered at:

Melbourne

Delivered on:

31 August 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Hutchings

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Paterson

Solicitors for the Independent Children’s Lawyer:

Perry Weston Lawyers

ORDERS

Parenting

All previous parenting orders be discharged.
The children [X] born [in] 2008 and [Y] born [in] 2011 (“the children”) live with the mother.
The mother have sole parental responsibility for the children.
In relation to any matter concerning the education of the children, such decisions to be made on the following basis:
(i)the mother to provide the father with notice in writing of the proposed decision;
(ii)within 28 days of the said notice being provided to him, the father be permitted to respond to the proposal in writing and in the event he has an alternative proposal, to provide that to the mother.; and
(iii)within 7 days of the mother receiving the father’s response, the mother is to notify the father in writing of the decision she has made.
The children spend time and communicate with the father as follows:
(a)Each alternate Friday from 3.30pm until 6.30pm commencing on the first Friday after the making of final orders.
(b)By telephone each Tuesday and Thursday between 7pm and 7.30pm with the mother to initiate the call to the father’s phone.
(c)Each alternate weekend from the conclusion of school or 3.30pm Friday to 5pm Sunday commencing on the second Friday after the making of final orders.
(d)For the child [X], during school holidays:
(i)For the first half of each school term holiday in 2015 and each alternate year thereafter commencing at the conclusion of school on the last day of school term and concluding at 5pm on the middle Saturday of the holiday period.
(ii)For the second half of each school term holiday in 2016 and each alternate year thereafter commencing at 5pm on the middle Saturday of the holiday period and concluding at 5pm on the following Sunday.
(iii)For half of the long summer vacation on a week-about basis as follows:
A.In 2015 and each alternate year thereafter, the first week to commence at 5pm seven nights after the last day of school and conclude at 5pm seven nights later.
B.In 2016 and each alternate year thereafter, the first week to commence on the last day of school term and conclude at 5pm seven nights later.
(e)For the child [Y], during all school term and long summer holidays:
(i)Until [Y] reaches five years of age, for four consecutive nights of each holiday week period when [X] is in the care of the father, to be the first four nights and concluding at 5pm on the fifth day.
(ii)Upon [Y] reaching five years of age and until he commences school, for five consecutive nights of each holiday week period when [X] is in the care of the father, to be the first five nights and concluding at 5pm on the sixth day.
(iii)Upon [Y] commencing prep in 2017, for the same holiday periods when [X] is in the care of the father as provided for in paragraph 4(d) of these orders.
(f)On the children’s birthdays and the father’s birthday from the conclusion of school or 3.30pm until 6.30pm on a school day or 10am to 5pm if a non-school day when the children are not already in the care of the father.
(g)From 5pm Christmas Eve until 12 noon Christmas Day in 2015 and each alternate year thereafter and from 12 noon Christmas Day until 5pm Boxing day in 2016 and each alternate year thereafter.
(h)From 10am until 5pm on Father’s Day, if the children are not already in the care of the father on that day.
(i)From 9am to 1pm on Easter Sunday, if the children are not already in the care of the father on that day.
(j)As otherwise agreed in writing by text or email between the parties.
The school holiday time the children are to spend with the father be subject to the father being able to cease working in his business for the entire holiday period and in the event that he cannot, the children are to remain in the care of the mother.
In the event that the children are in the care of the father on the following occasions, the father’s time with the children be suspended:
(a)On Mother’s Day from 10am until 5pm.
(b)On the children’s birthdays and the mother’s birthday from 3.30pm until 6.30pm if a school day or 10am until 5pm if a non-school day.
(c)On Easter Sunday from 9am to 1pm.
(d)From 5pm Christmas Eve until 12 noon Christmas Day in 2016 and alternate year thereafter and from 12 noon Christmas Day until 5pm Boxing Day in 2015 and each alternate year thereafter.
The children’s time with the father during school terms be suspended during all Victorian gazetted school term and long summer school holidays and recommence after the school holidays in the same cycle as if the said holidays had not occurred.
During all holiday periods when the children are in the care of the father, the children communicate with the mother by telephone each Tuesday and Thursday between 7:00pm and 7.30pm with the father to initiate the call to the mother’s phone.
For the purposes of all changeovers that do not occur at the children’s schools, changeover is to be effected at Coles at [B].
In the event either parent is unable to attend changeover personally due to an emergency or unforeseen circumstance, they are permitted to arrange for a family member to attend changeover in their place.
The father be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of alcohol to excess (above a blood alcohol level of 0.05) or any legal or illegal drug or substance save and except for:
(a)Any legal medication prescribed for the father by a registered medical practitioner and taken or used by the father directly in accordance with such prescription.
(b)Any over the counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine) and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
All communications between the parties be limited to matters concerning the children’s care, welfare and development.
Both parties, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating each other, or any of the parties’ respective family members to, or in the presence and/or hearing or the children or either of them and from allowing anybody else to do so.
(b)Discussing these proceedings with, or in the presence and/or hearing of the children or either of them and from allowing anybody else to do so.
Both parties keep one another advised in writing of any change to their telephone number or residential address with 48 hours of any change thereto.
In the event of either or both of the children suffering a serious medical illness or injury requiring medical treatment, the parent caring for the child/ren at the time shall immediately contact the other parent and provide the following:
(a)Details of the illness or injury.
(b)The name and address of the medial clinic or hospital where the child/ren is being or has been treated.
(c)The name and contact details of the treating medical practitioner in charge of the child’s care.
(d)Any necessary authority to the treating medical practitioner to communicate with the other parent.
The mother authorise any school, kindergarten or childcare facility attended by the children to provide to the father all information that a parent would ordinarily be entitled to upon his request and at his expense (if any).
Both parties be permitted to attend any kindergarten or school assemblies, concerts, parent-teacher interviews, events or extra-curricular activities that are ordinarily attended by parents or to which they are invited.
Both parties be permitted to provide a copy of these orders to any kindergarten or school attended by the children.
The mother ensure that both she and the father are listed as an emergency contact at any kindergarten or school attended by the children.

Property

Within 21 days the funds currently held in trust by solicitors for the wife be dispersed as follows:
(a)Firstly, in payment of the following debts:
(i)Commonwealth Bank Personal Loan: $8,357
(ii)Montessori School Fees: $975
(iii)Go Mastercard [1]: $5,747
(iv)CBA Mastercard [2]: $3,649
(v)NAB Visa [3]: $970
(vi)Myer Visa [4]: $4,161
(vii)Coles Group [5]: $994
(viii)CBA Visa [6]: $3,035
(ix)Go Mastercard…[7]: $1,869
(x)St George Finance: $20,000
(xi)Mr and Mrs T: $13,780
(xii)Mr and Ms M: $19,419
(xiii)Mr E: $10,000
(xiv)Mr and Ms S: $2,500
(xv)$2,000 to the husband to reimburse the wife’s share of the Family Report
(b)Secondly, the sum of $24,350 to the husband; and
(c)Thirdly, the balance to the wife (including any interest that may have accrued).
Within 7 days the husband is to return to the wife the following chattels:
(a)Washing machine.
(b)Brown colander.
(c)One candle holder.
(d)Three white stools.
(e)White ceramic dish.
The husband is to retain the following chattels:
(a)Large wooden coffee table.
(b)Stepping stool.
(c)[Y]’s white chest of drawers.
Each party is to otherwise retain the chattels currently in their possession.
The husband is to retain the business [M] and will be liable for indemnifying the wife against any debt accrued with respect to the ordinary running of that business.
Each party retain the motor vehicles currently in their possession.
Unless otherwise specified in these Orders and save for the purposes of enforcing all monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders save and except for as provided for in these Orders.
(b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(c)Insurance policies remain the sole property of the beneficiary named therein.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

THE COURT NOTES THAT:

Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6011 of 2013

MR MARINO

Applicant

And

MS SALVAI

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting and property dispute between parties with a most unfortunate interpersonal history. Put at its shortest, the father seeks an equal shared time arrangement, and the mother seeks a more limited regime of time with the father. In the main, her position is supported by the Independent Children’s Lawyer. So far as the very small property pool is concerned, the mother seeks that she retain all of the proceeds of the former matrimonial home following payment of various bills, and the father seeks a 50/50 property split.
For the reasons that follow, I propose to make orders predominantly as sought by the Independent Children’s Lawyer, and there will be a property split 70/30 in favour of the mother, leaving aside superannuation.

Uncontroversial historical background

The father was born on [omitted] 1973. It is not stated in terms, but it seems clear that he grew up in South Africa. The mother, who is Australian, was born on [omitted] 1971.
The parties met in London and commenced a relationship in March 1994 (father’s version) or March 1996 (mother’s version). It is a measure of the extent of the disagreement of the parties that not only are they not able to agree when they first became intimate, a matter one might reasonably have expected they would recall, but they are in significant disagreement even as to such matters as the basis upon which the husband came to Australia.
The mother says that the husband came on a partner sponsored visa, and the father says he came, so to speak, under his own steam. Whichever version of this is true, it seems that by 1997 both of the parties were living in Sydney. They spent a disputed amount of time living with the mother’s sister in Sydney and ultimately relocated to Melbourne in late 2002 or early 2003.
The parties married on [omitted] 2004, and their first child, [X], was born on [omitted] 2008.
The father’s parents relocated from South Africa to Australia in December 2010. On [date omitted] 2011, the parties’ second child, [Y], was born. The parties seem to agree that they commenced to live separately but under the same roof either shortly before or at about the time of [Y]’s birth.
It seems once again to be agreed between the parties that the issue of parenting style, most particularly in relation to sleeping difficulties experienced by both children, but apparently more so by [Y], was the source of considerable friction between them. Separation took place in either December 2012 (mother’s version) or January 2013 when the mother moved out of the former matrimonial home (father’s version). Taking the materials as a whole, as a matter of analysis it seems clear that separation was in December 2012.
The father himself concedes that he was devastated by the separation and did not behave appropriately thereafter.
On any view of the matter, the father took the children to Phillip Island in Easter 2013 in circumstances neither foreseen nor agreed by the mother. It is also common cause that for a period of time, in mid-2013, the father ceased to spend time with the children, albeit that there is some argument about the duration of this period of time.
On 14 June 2013, the mother took out an Intervention Order against the father, and it was entered into together with a parenting plan.
The husband remained in the matrimonial home until its ultimate sale in April 2014.
Both of the parents have help from their own parents, who have had a measure of involvement with the children from time to time. The mother now lives with her parents, and the father lives likewise with his, although he has expressed an intention to move out in the future, albeit still remaining close to his parents.
The father was convicted of breaches of the June 2013 Intervention Order on 13 December 2013 (see exhibits D and E to the mother’s affidavit filed 13 March 2014) and placed on a Community Corrections Order.
He was subsequently charged with yet further breaches of the Intervention Order, which was extended for a further year on 11 July 2014, and in cross-examination admitted that he was given a two month jail sentence, suspended for 12 months, in October 2014 as a result (his answer was to the effect that the Court outcome was “something like that”).
The parties have seen Ms W on two occasions, resulting in two family reports, and the Court also has the benefit of a psychiatric assessment of the father by Dr W filed 11 November 2014.

The matters in dispute in the parties’ affidavit material

When parties cannot even agree when they first became intimate or even something that one would have thought was so readily susceptible of formal proof, such as the dates upon which they relocated to Australia and the visa basis upon which the father did so, it is little surprise that there are an enormous number of matters in dispute. Many of these are, when looked at objectively, of very little moment, and I do not propose to spend time seeking to chase every rabbit down every burrow. To do so would make this judgment quite unnecessarily prolix.
The primary issues that divide the parties are, from the mother’s perspective, the asserted history of controlling and abusive behaviour both during and after the relationship, and as she would put it, and continuing. Further, the mother has very considerable concerns about the father’s alleged drug use, which she asserts may well still be continuing, and the consequential effects that this might have upon the safety of the children and in particular [Y] when spending time with him. It should be noted, however, even at this early stage, that those concerns must be seen in a context where she is herself proposing that both children spend unsupervised time with the father.
A further concern advanced by the mother is the relative lack of involvement on the father’s part with the children when the relationship still subsisted, the extent to which he will in truth be able to look after the children when they are with him, bearing in mind his work demands, and the alleged impossibility of joint decision-making, giving the father’s overbearing attitude, which the mother would submit makes equal shared parental responsibility, let alone equal time, wholly inappropriate.
From the father’s perspective, the matters raised involve the mother’s erratic and irrational behaviour, associated possible mental ill health on the part of the mother, and the desire of the mother to limit and/or exclude the father from an appropriate involvement in the children’s lives.
The affidavit material put on by the parties is copious. Much of it amounts to a litany of mutual complaint and counter accusations, traversing the broadly described matters I have just referred to.
Although I have of course read and re-read the entirety of the materials filed, the following short paraphrase of the parties’ affidavits should, in my view, be sufficiently indicative.

The father’s affidavit filed 23 July 2013

The father’s affidavit introduces the parties and gives a history of the way in which they met and ultimately moved to Australia. It is noteworthy that the father gives considerable emphasis to his sporting activities and to the alleged enjoyment of, and to an extent participation in the same, by [X].

The affidavit describes the birth of the children and the resultant parenting difficulties that the parties had. It asserts the father’s very considerable involvement with both children when they were very young and accuses the respondent mother of having on occasions inappropriately left the children to with him for excessive periods of time.
The affidavit details the differences in parenting styles, to which I have already referred. The tenor of the affidavit is perhaps indicated relevantly by paragraph 38, where the father said:
“38. Things were really hard between the Respondent and I and I admit that I found it especially difficult to communicate with the Respondent after the birth of our children. I say that I initiated all of the discussions about our situation, but we could never actually resolve anything and move on as a family. I say there was never any scope to meet in the middle and see each other’s point. There was no give-and-take.”
The affidavit goes on to describe difficulties at or about the time of separation, including a very unhappy Christmas Day 2012. The affidavit details the unilateral decision he took as a result of frustration with what he perceived as the mother’s lack of flexibility to take the children to Phillip Island in Easter 2013, despite the mother’s opposition.
The affidavit goes on to complain about the alleged obstructive behaviour of the mother in relation to his spending time with the children and the failure of any attempts to mediate.

The mother’s affidavit filed 30 August 2013

The affidavit outlines the development of the relationship (as I have noted, in terms significantly different from those described by the father). It goes on to detail the birth of the children and asserts that the mother was the primary carer of the children, and the father was the breadwinner.
The affidavit asserts that the father spent little time with the children on weekends and was smoking marijuana regularly throughout the relationship. The affidavit traverses the time spent with the children since separation and complains of the father’s decision to take the children to Phillip Island in Easter 2013. The mother also detailed the Intervention Order made on 14 June 2013 and the parenting plan made at the same time.
The affidavit details [Y]’s alleged difficulty in separating from his mother, which was the main reason expressed for an opposition on the mother’s part to overnight time. She took issue with the father’s proposal for shared care of the children. She went on to say at paragraphs 26-29:
“26. There is a history of domestic violence and Mr Marino and I simply cannot communicate. Mr Marino avoids even looking at me at changeovers and seems to find it difficult to communicate with me without getting upset and becoming verbally abusive. I have no faith that Mr Marino and I would be able to successfully negotiate a workable co-parenting relationship and I think that is really necessary for shared care to be workable. I continue to feel intimidated by Mr Marino.
27. I do not think that either child would be able to cope with being away from me for a week at a time. I think that this would have a seriously detrimental impact on their emotional and psychological welfare.
28. I further note my concerns with respect to Mr Marino’s ongoing use of illicit substances and alcohol. If Mr Marino is under the influence when the children are with him it seriously compromises his ability to be able to respond to them if there are any issues and to provide proper care.
29. Both children experience sleeping difficulties and they both used to get up frequently in the night to seek out comfort and reassurance from me. [X] has now grown out of that. [Y] still does.”
The mother then went on to deal with asserted domestic violence. It should be noted, however, that the affidavit material does not allege any particular instance of physical assault. The high point of the alleged violence is an assertion that the father on one occasion around the time of separation picked up [X]’s bike as if to throw it at the mother, but she does not assert that he did so. The affidavit also asserts that on 24 January 2013 the father assaulted the mother while loading things in her car by trying to grab car keys out of her hand. It should be noted that notwithstanding this alleged assault, on this occasion the husband in fact provided a spare key to the car for the mother.
Otherwise, the affidavit sets out the history of why the Intervention Order came to pass and provides a detailed response to the father’s first affidavit. The response puts a very substantial number of matters in issue but does not, in my view, take the matter otherwise any further. It should be noted that the mother was suspicious that the father had a female friend living with him in the former matrimonial home as a partner. It appears uncontroversial that this other woman, [name omitted], lived in the matrimonial home with her children at least for some period of time.

The affidavit of the father filed 4 October 2013

This affidavit is essentially entirely responsive to the mother’s previous affidavit. I note inter alia that the father asserted that the mother’s Mazda was bought for $43,000 in 2008 with ongoing payments of $790 per month. The father asserted that post-separation he had not made such payments and that the mother was seeking to do so.
The father also responded to the issues asserted by the mother as to the purchase of the former matrimonial home and its relevant value and the relevant debts. I have not traversed these matters in any detail because they will be dealt with in a separate part of this judgment at a later point.

The mother’s affidavit filed 13 March 2014

Having traversed the orders made in August and September 2013, the mother asserted compliance on her part with those orders. She deposed at paragraph 7:
“7. I continue to have major difficulties dealing with Mr Marino. His behaviour and conduct continues to be unnecessarily abusive and intimidating.”

The mother referred to difficulties with telephone time and asserted overreactions by the father if he did not get what he wanted. More particularly at paragraph 10, the mother deals with events in April 2013 when [Y] was hospitalised for two days on 17-18 April 2013. The mother appended to her affidavit as exhibit A1 a copy of the messages sent by the father.
Exhibit A1 is extremely disturbing. It shows an avalanche of transcribed voice mail messages recorded on 17 and 18 April 2013. The tenor of these messages is uniformly aggressive, threatening, unpleasant and frequently obscene. Amongst the more extreme examples are the following at 7.37 pm:
“7.37pm - (crying) – [Ms Salvai], I don’t care about your fucking IVO. I don’t give a fuck if I go to jail. Call me you fucking cunt. I want to speak to my children. You evil, you bitch, I hate you, you fucking cunt. (screaming)”
Further messages followed almost instantly thereafter.
There are a number of other extremely unpleasant messages in exhibit A1. I do not propose to insert them into this judgment, but as the mother’s later affidavit material points out, they speak for themselves. It would be difficult to imagine a more off-putting, threatening and unpleasant set of messages. More particularly, the mother is completely correct to assert that she was being inundated with grossly excessive numbers of messages, even had their content not been as offensive as it was.
The mother’s affidavit continues with other examples of difficulties between the parties, sets out the history of the breach proceedings which led to the conviction on 13 December 2013 (see exhibit E), and deposes to alleged misconduct on the father’s part at changeover on various occasions. No doubt as a result of these matters, the wife deposed at paragraph 18:
“18. I get nervous surrounding each and every changeover when I know that I am going to have to be in contact with Mr Marino. His hatred of me is palpable. Mr Marino will barely look at me. I am constantly worried that Mr Marino is going to blow up and abuse me or that he will not return the children. It causes me so much stress that I often feel sick to the stomach.”
She went on to request that changeover take place at [B] police station, which is open 24 hours.
The mother went on to depose to her concerns about the father’s drug use and an alleged non-compliance with requests for 10 drug screens.
The affidavit further traversed matters to do with property, to which, as I say, I shall return. It should be noted that much of what is complained of has been overtaken by events, given that the matrimonial home has been sold.

The father’s affidavit filed 20 March 2014

It should be noted that at this stage, and indeed subsequently, the father was self-represented. The affidavit details Court orders made and annexes the report by Ms W on 11 November 2013. It sets out the father’s version of his relationship with the children and iterates a number of complaints of the mother’s failure to make the children available to him. I note that he accuses deposes that the mother, paragraph 28, “will arbitrarily go to the police for any frivolous matter.” This includes his taking the children to Phillip Island in Easter 2013. The affidavit has about it a stream-of-consciousness quality that makes it difficult to paraphrase in any sensible way. It iterates a number of complaints of the mother’s conduct and various matters to do with the property of the parties, including disputes over the possession of a number of chattels.

The affidavit of the mother filed 26 March 2014

This affidavit is responsive to the father’s affidavit just paraphrased above. It is not necessary to refer to it in any detail. It is, of course, self-exculpatory of the mother and accusatory of the father.

The father’s affidavit filed 14 November 2014

This was one of two affidavits filed in support of two contravention applications brought by the father. These were heard, at the father’s insistence, before another judge on 9 June 2015 immediately before the substantive proceeding commenced. The contravention applications were effectively entirely unsuccessful. They related essentially to an alleged failure on the mother’s part to make [Y] available for overnight time. Inter alia the father asserted that he had complied with the relevant pre-conditions and orders of the Court to enable time to occur, including supervised drug screens. This is matter to which I shall return.

The affidavit of the mother filed 17 November 2014

This affidavit concentrates on the alleged failure of the father to provide drug screens as required. It further deposes that the former matrimonial home was sold with settlement on 13 June 2014 (although the mother complains of the father not leaving in sufficient time) and deposes to difficulties between the father in relation to the extant spend time regime.
The affidavit goes on to detail the extension of the Intervention Order in 2014 and further breaches on the husband’s part. It deals again with the property pool, and these are matters which I will deal with separately.

The father’s first affidavit filed 25 November 2014 (numbered 38 on the Court’s file)

This responds in detail to the mother’s affidavit just referred to. It puts a number of matters in issue.

The father’s second affidavit filed 25 November 2014 (numbered 39 on the Court’s file)

Perhaps for these purposes the most relevant aspect of the affidavit, which is in a sense a review of early materials, is at paragraphs 32-34 where the father deposed:
“32. From the moment the mother vacated the former matrimonial home in January 2013, she has not waivered in her relentless quest to try to discredit me as a person and father. The respondent mother has no hesitation in making false and misleading statements and allegations in her attempts at ensuring that the father has little to no contact with his own children, [X] and [Y],
33. The mother’s actions have no positive outcome for anyone concerned. She completely ignores the consequences of her actions and the impact that this is having on both [X] & [Y].
34. The mother’s actions further destructs every effort I am making to build a meaningful relationship with my children in the limited time available to me whilst also trying to establish and maintain an amicable co-parenting relationship with the mother.”
At paragraph 57-59 the affidavit continues:
“57. Instead of negotiating with the father, the mother chooses to fuel her animosity towards the father to the detriment of [X] and [Y]. She has no consideration for the impact of her actions on the children and is totally insensitive to what is in the best interests of the children
58. The mother’s continued behaviour clearly demonstrates that she is still experiencing problems, particularly with regard to her separation anxiety where [Y] is concerned.
59. The mother completely ignores the vitally important role the father plays in the growth and development of the children so that they can continue to develop and flourish. Once again, the mother has no regard for the impact her actions have on [X] and [Y].”

The affidavit of the father filed 27 February 2015

This is the second affidavit supporting a contravention application to which I have referred. It is not necessary to deal with it further.

The affidavit of the mother filed 8 May 2015

This responds to the contravention applications. I note that it annexes as annexures A and B letters of the Independent Children’s Lawyer dated 20 October 2014 and 1 September 2014 respectively, in which the Independent Children’s Lawyer made it clear that he did not think that the father had complied with the request for drug screens made to him.

The affidavit of the mother filed 2 June 2015

This affidavit once again details the interaction between the parents, difficult as it has clearly been for both of them. Of particular note is an exchange of messages on 6 February 2015 which is annexed as JS2. Leaving aside the somewhat banal nature of some of the issues raised, I note the following messages sent by the father to the mother on that day:
“7:27:44pm: Poor boys??? Pity they have a mum who doesn’t believe the vital importance of a father in her own sons’ lives…
7:27:44pm: A mother who shows no regard for their best interests and still continues to split up two young brothers…
7:29:52pm: A mother who still snubs her nose at consented Court orders and does not comply. Poor boys”

The professional witnesses

Ms W, family consultant, has filed two affidavits, and Dr W, psychiatrist, has filed one. Neither were required for cross-examination by any party.

The report of Ms W dated 11 November 2013 (filed with her affidavit filed 14 March 2014)

Ms W set out the history between the parties, noting the significant dispute between them as to the role that father played in parenting the children prior to separation. Ms W noted that tensions within the marriage, and on a continuing basis, of the different parenting styles between the parents, most particularly in relation to [X] and then [Y]’s sleeping problems. Ms W noted the father’s concerns of the mother’s obstructive attitude but noted that there had been two major disruptions arising out of the father’s unilateral decisions. Ms W wrote (at paragraph 6):
“The first was during the Easter break in April 2013 when Mr Marino kept both the children overnight at Phillip Island, contrary to any agreement, informing Ms Salvai of this once the children were already there. The second was a period between three and eight weeks, (the amount is in dispute) around May and June 2013, when Mr Marino chose not to see the children or take phone calls from them, despite the existence of an agreement for contact to occur.”
The report noted the enormous amount of text messages sent by the father to the mother and his numerous phone calls, which according to the mother had led her to take out an Intervention Order. The report noted that the father was not paying child support and was living in the family home and paying the mortgage.
Having noted the competing proposals of the parties (the father seeking equal time, and the mother much more restricted time, with no overnight time for [Y] until he turned three), Ms W set out the issues in dispute in a number of dot points at pages 11-12 of 19, which in my view entirely accurately characterised the matter.
The report noted the children’s interaction with their parents and the differing amounts of time they spent with their father. At paragraphs 22-23, page 12, Ms W reported:
“22. [Y] is still developing language and so his understanding of what is going on and why he moves between homes is obviously limited. It appears from reports that he, like most children in his situation has trouble understanding why [X] stays overnight with their father and he does not. Given the children’s pleasure in their father’s company it is likely, no matter how good [Y]’s relationship with his mother is, he will become stronger in his desire over time to stay, along with his big brother, [X], overnight at his father’s home.
23. [X] and [Y] impress as very attached to each other as well as their parents. It is preferable therefore that they spend as much time as possible with each other and at the same time have substantial and significant time with each of their parents.”
In analysing Mr Marino, Ms W said at paragraph 26:
“26. Mr Marino’s pain and anger about this seems to have overwhelmed him on various occasions since the separation. Although there is but one incident where it is alleged Mr Marino was physically abusive to Ms Salvai, Mr Marino’s pain and aggression have been expressed in the form of endless harassing text messages and phone calls, along with alleged verbal threats, many of these occurring while the children were present.”
At paragraph 28, the report continued:
“28. Mr Marino’s reasoning as to why he should not be bound by an Intervention Order is that whatever he is accused of saying or doing, were acts that came about in response to provocation by his wife’s unfair actions. Mr Marino lacks any insight, despite attempts by this consultant to explore this with him, into the concept that whilst acts by others might be seen as provocative, and the person on the receiving end of such acts may have every reason to feel hurt or angry, this does not mean that it is appropriate or acceptable to respond in a threatening or harassing manner.”
At paragraph 31, Ms W recorded:
“31. Whilst Mr Marino denies that his marijuana or alcohol use was a major issue in the marriage, he is insistent that he has not used marijuana in the last six months and intends to continue abstaining. Ms Salvai does not believe that Mr Marino has in fact stopped using marijuana.”
At paragraph 34, the report continues:
“34. When discussing the practicalities of equal shared care, whilst able to acknowledge trust was an issue, Mr Marino felt this could be overcome if Ms Salvai were not so obstructive and truly recognised the children’s rights to spend equal time with each parent.”
The report noted the father’s proposal that his parents should care for the children rather than their own mother if he had to work while they were in his care under a shared care arrangement. The report also noted the mother’s position that since she was at home full time this was inappropriate. At paragraph 36 the report continued:
“36. The fact that Mr Marino does not see it as in the children’s interests to be cared for by their other parent rather than grandparents, tends to reflect Mr Marino’s fundamental difficulty in acknowledging the positive nature and value of Ms Salvai’s parenting skills that are evidenced by the very positive development of [X] and [Y] until now.”
At paragraph 38, Ms W concluded:
“38. Mr Marino is a loving and devoted father. However his lack of insight into the effects of his behaviour on his children and their mother, arising from his lack of respect for his children’s mother, it is most concerning.”

Ms W noted the mother’s version of events and her conclusion at paragraph 51 was:
“51. Ms Salvai is an attentive and possibly at times a slightly indulgent parent who clearly finds letting go from her children a difficult thing to do. This difficulty increases when the person she is leaving them with is someone she no longer trusts and who clearly also does not respect her. Despite the issues Ms Salvai has had to deal with during and since the end of the marriage, [X] and [Y]’s apparent sense of stability and security must in large part be attributable to her efforts to maintain structure and security in their lives despite the turbulence between the parents.”
Ms W went on to set out her evaluation and assessment. She assessed both children as thriving and needing a strong relationship with each of their parents. She noted that ideally the children should not be apart for most, if not all, of the time. Ms W noted at paragraphs 54-55:
“54. At present the situation is far from ideal. Mr Marino and Ms Salvai are in constant conflict, alleged breaches of the Intervention Order are awaiting determination in early December and there is neither respect nor trust shared between these parents.
55. The lack of trust is deep seated and continues as a consequence of the ongoing pressures placed on Ms Salvai by Mr Marino to meet his demands to spend more time with his children. The impact of Mr Marino’s actions, whether or not this is Mr Marino’s intention, is that he is further alienating Ms Salvai. By doing so this creates a vicious circle whereby Ms Salvai feels harassed and does not want to respond and for Mr Marino his belief that Ms Salvai is thwarting his attempts to see the children, becomes a self fulfilling prophecy.”
Having explored Mr Marino’s lack of insight, Ms W continued at paragraphs 58-59:
“58. Ms Salvai is a nurturing, protective parent who has had the prime responsibility for successful development of [X] and [Y] until now. Until Mr Marino can respect this and demonstrate that he is making every effort to rebuild the shattered trust between the children’s mother and himself, it is quite unrealistic to contemplate equal shared parenting time.
59. Should Mr Marino demonstrate to the Court and to Ms Salvai that he is, as a matter of urgency, seeking to address the issues that are creating obstacles to a successful working relationship between himself and Ms Salvai, then it would seem appropriate at that point to progressively phase in overnight contact between [Y] and his father until the time spent becomes the same as [X]’s.”
Ms W went on to recommend shared parental responsibility, that the father engage in a Men’s Behaviour Change program as a matter of urgency, and a proposal for more limited time spent with the father. She recommended random drug testing for a fixed period of time, clearer guidelines about phone calls and special days, and that the mother engage in personal counselling to deal with the anxieties she has about the children’s wellbeing and ways of managing the interaction that was necessary to work constructively with the father.

The report of Ms W dated 5 September 2014 annexed to her affidavit filed 11 November 2014

This report was, of course, an updated report, following a further set of interviews with the parties in August and September 2014. Ms W noted the history of the matter including difficulties with overnight time for [Y], and observed at paragraphs 6-8:
“6.    Whilst except for the recent difficulties in relationship to overnight contact there have been no incidents reported by either Mr Marino or Ms Salvai for some time, each parent continues to perceive the other as unwilling or unable to foster the relationship between the children and the other parent.
7.    Mr Marino has recently completed a fourteen weeks Men’s Behavioural Change program as part of his Community Corrections Order, been psychiatrically assessed and has, in his view, complied with all drug testing requests, with successful outcomes. Ms Salvai alleges not all results have been forwarded to her solicitor by Mr Marino and whilst she has been told by Mr Marino that all results show that he is drug free, she questions the authenticity of some of these tests.
8.    Ms Salvai has attended two appointments with a counsellor in regards to the children’s needs issues and has not attended any parenting courses or personal counselling as recommended in the previous Family Report.”
Having noted the parties competing, and very different, proposals and that the only area of agreement between the parties was that [X] and [Y] had a loving relationship with each parent, Ms W identified at paragraph 12 the key issues then remaining:
“The hostility and lack of trust that continues to exist between Mr Marino and Ms Salvai.
The impact of this on the capacity for the parents to jointly focus on their children’s needs.
Mr Marino’s alleged use of illegal substances and the risk this may pose to the children.
The impact on the children of being separated whilst [X] has overnight contact with his father and [Y] does not.
In the light of the above issues, whether a shared care arrangement for [X] and [Y] is workable in the foreseeable future.”
I would interpolate and say that those appear also to me to be the primary matters presently agitated before the Court.
The report went on to record observations of the children noting that they are happy, lively children and both thriving and strongly attached to each of their parents. I note at paragraph 17 that [X] still sleeps in his mother’s bed when in her home and [Y] sleeps in a cot in the same room, whereas at the father’s home the children share their own room.
The major change noted by Ms W is described at paragraph 22 as follows:
“22. The anger that so overwhelmed Mr Marino in the first year of separation and led to the barrage of text messages resulting in his being convicted of breaches of the Intervention Order that existed to protect Ms Salvai, appears to have subsided exponentially as he seemed to have developed increasing insights into his behaviour and the part he has allowed other people to play in feeding this. This quite dramatic change can be directly attributed to Mr Marino’s participation in the Men’s Behaviour Change (MBC) course he recently completed as part of his Community Corrections Order.”
At paragraph 24 the report continued:
“24. Mr Marino spoke to this Consultant at length and with considerable excitement about the insights he had gained on a weekly basis during the fourteen weeks of the MBC course and the successes he has had in implementing what he has learned, not only in regard to coping with his reactions to Ms Salvai, but all aspects of his life. The depth of understanding that he was able to demonstrate about what he had learned and the enthusiasm that Mr Marino had displayed for the benefits he had gained, was quite remarkable.”
I note that the issue of Mr Marino’s alleged drug taking was still canvassed before Ms W who noted at paragraphs 26-27:
“26. Mr Marino denies that it was ever a problem during the marriage but does not deny that both he and Ms Salvai used drugs to some degree earlier in the relationship, and alleges that some members of Ms Salvai’s family have dealt in illicit drugs.
27. Mr Marino is adamant that “I never did drugs. I was not a habitual user”…”
I note that Mr Marino clearly portrayed to Ms W (see paragraph 27) that he had complied, to all effects and purposes, with the requirements on him to have drug tests.
The report further noted Mr Marino’s ongoing view that the mother was doing all she could to restrict his relationship with the children.
So far as the mother was concerned the report recorded at paragraph 35:
“35. Ms Salvai, now aged 42, once again presented as a committed and highly vigilant parent. Ms Salvai does not, however, despite her continued espoused belief that the children should have a substantial relationship with their father, seem to have moved forward in regard to either the level of respect she has towards Mr Marino as a parent or believing that he has moved on with his life and no longer wishes for the hostilities to continue. Ms Salvai still sees Mr Marino as both aggressive and dishonest in his interactions, not only with her, but also with the Court.”
I note that the mother continued to disbelieve that the father had weaned himself off marijuana. Her views as expressed in paragraph 37 were as follows:
“37. “I do not agree that he is cured from marijuana and ice addiction”, and that she believed there was a strong possibility that the supervised drug tests test results Mr Marino had produced were in fact fraudulent. Ms Salvai advised that, given her knowledge of Mr Marino and stories she had heard of “people using false penises during supervised drug screens” and her belief that Mr Marino’s ‘girlfriend’ (with whom he denies any relationship with other than friendship) worked at the health centre where he had the testing, those tests should not necessarily be given credence.”
The mother continued to complain of the father’s conduct at changeovers and at paragraph 38 Ms W recorded:
“38. …she professes to see little, if any, change in his demeanour when there is interaction between them. An example of this, she noted, was that during the last handover, Mr Marino gave her a “wicked smile”. In addition, Ms Salvai commented, when the Consultant noted the smoothness of handovers between her and Mr Marino during the day of interviews, that, “handovers are not usually like this. He is usually very hostile to me in front of the children”.”
At paragraphs 39-40 the report recorded:
“39. When asked by this Consultant what qualities Mr Marino might have that the children may benefit from in spending time with him, Ms Salvai struggled to find any, despite a number of attempts. Eventually Ms Salvai was able to say, “The boys need some sort of male figure in their lives but I don’t see the good bits in Mr Marino” and “Sometimes I think he is not a fit father”.
40. Ms Salvai’s consistently negative view of Mr Marino was concerning, particularly as she has not sought counselling help, despite this Consultant’s previous recommendations that she did so, in order to deal with the impact that her unresolved feelings regarding Mr Marino were having on her, and therefore the children. Whilst Ms Salvai advises that she has recently commenced seeing a psychologist, Dr R, it is important to note that both Ms Salvai and Dr R agree that the purpose of this counselling is to focus on the children’s issues, and [X]’s in particular, rather than her own.”
Having traversed matters further Ms W recorded at paragraph 45:
“45. Until Ms Salvai can begin to deal with her issues with Mr Marino and feel more comfortable in letting her children go to him, she is likely to have ongoing difficulties in responding to anything Mr Marino does in any other than a negative light and despite both parent’s stated desire for a truce, the battle between them is almost destined to continue.”
Having noted the parties’ differing positions and in particular the differing assertions as to the extent to which Mr Marino had been able to change, Ms W said at paragraphs 53-54:
“53. Until there is movement in regard to the communication between Mr Marino and Ms Salvai it is this Consultant’s assessment that expansion of time spent by [X] and [Y] beyond what exists in the current orders may need to wait.
54. Whilst communication is a major issue, there does not appear to be a basis for the assignment of Sole Parental Responsibility. Rather and more appropriately, Ms Salvai and Mr Marino need to strive to find a way to be able to implement this in practice in the foreseeable future, not by expecting change from the other but by continuing to work on their own issues if it is the children’s needs and not their own that they are striving to fulfil.”
Ms W went on to recommend shared parental responsibility, that the children live with the mother, that the father continued to be randomly tested for drug use for a fixed period of time and a gradually increasing period of time for both children and more particularly for [Y].

The report of Dr W dated 3 July 2014 annexed to his affidavit filed 11 November 2014

Dr W undertook a psychiatric evaluation of the father. I note that under “Current History” (at page 6 of 14) the father asserted:
“My behaviour was out of control when the separation first happened…I texted too many times…breached the orders seven times because the respondent mother didn’t let me see or speak to my children…I was blinded by my frustration and anger…I put my hand up to do a Correction Order and a Men’s Behaviour Change program… I am enjoying it [the program]… techniques… how to manage my thoughts, which affect my emotions and then my actions…I am changing my thinking…I am more understanding and patient if the respondent mother doesn’t respond to a request.”
It should be noted and interpolated that the Correction Order followed breaches of the extant Intervention Order and was not, as the father implies, a solely voluntary decision by him.
I note that in relation to drug use (see page 8 of 14):
“Mr Marino denied any history of drug or alcohol problems, saying that he was an occasional drinker of alcohol who smoked 20 cigarettes over a three-day period.
He has smoked cannabis when overseas with his wife, and twice in Australia, but not in recent years.”
The rest of the report is largely uncontroversial. Mr Marino denied any current or past psychiatric history. I note that at page 11 of 14 the report notes:
“Mr Marino has been described by his ex-wife as having been violent and a habitual drug user, but he categorically denies these accusations, saying that they are based on his ex-wife’s wish to limit his contact with their children.”
The diagnosis made by Dr W (at page 12 of 14) was:
“Diagnosis
Upon the history available, there is no evidence of a psychiatric disorder, although if it was deemed that Mr Marino was lying about previous violence and/or drug abuse, there would be a significant likelihood that he was suffering from a personality disorder.
Prognosis
There appears to be no significant risk of psychiatric illness in the future.
However, as described, if it was deemed that he was lying to this examiner and therefore suffering from a degree of personality disorder, there would be a significant risk of his being at this point of time incapable of taking responsibility for his behaviours. Such a risk would be likely to continue indefinitely.”

The evidence given at Court

It should be noted that what follows is taken from my notes and not from transcript. It is necessarily to an extent a paraphrase.
The father had prepared an opening statement which he tendered and I marked for identification as MFI1. It speaks for itself. I note that at page 3 the father concedes that he:
“…would occasionally see me sending too many text messages to the respondent mother which I also acknowledge and accept can be viewed as harassment. I do stand by the fact that at no time did I ever make threats to the respondent mother or her family. In fact it was simply the volume of text that I would send to the respondent mother in my relentless attempts to try to communicate with the respondent mother and find out why she would just completely ignoring (sic) me and not allow me to see or speak to my children.”
This criticism is repeated elsewhere throughout the statement.
The father was cross-examined by counsel for the mother about his income, which he asserted was approximately $41,000 in the year 2013-2014. He confirmed that he had not paid child support. A lump sum child support payment was made by a garnishee process on a tax refund.
The father admitted that he was found guilty of seven counts of breach of the Intervention Order on 26 July 2013. He further conceded that – as I have already mentioned – that in October 2014 he was found guilty of further breaches and given a two month suspended sentence. He said he was not 100 per cent sure but it was something along those lines.
He said that he had tried to text the mother too many times to find out about his children. He appeared to concede that it was not only the volume of messages that led to his being found in breach. He said he was trying to find out where his children were or to speak to them.
He said there was nothing he regretted saying in these messages. When a particularly offensive message was put to him in which he had called the wife a “cunt” and a “piece of shit” he first said he did not recall leaving the message, but then said it was possible he had said it. He said the issues have been dealt with and he had been punished for it.
When taken to annexure A1 to the wife’s affidavit filed 13 March 2014 his answers were in my opinion evasive and unbelievable.
When challenged that his income in 2012-2013 had been about $60,000 he said he worked long hours and sometimes 12 hours per day and six days per week. He employs his mother and father and one or two other persons sporadically. He said turnover in the previous year was about $60,000.
He said that texts and voicemails he had sent in August 2014 were abusive, but he was not sure exactly what he had sent. He conceded it would be terrible to listen to and that no one should have to listen to that. He said he was frustrated because he did not see the children for five to six days at a time but this was now dealt with and he was rehabilitated.
The father had undertaken to provide his tax return for the year 2013-2014 overnight following the first day of the hearing but was not able to find it. He conceded that his tax return was higher than he had previously indicated and would have been in fact not $40,000 but closer to $60,000. He said that this year however he was making far less and was running at a loss. He agreed that he might owe as much as $4,000-$5,000 in child support payments but did not know.
When it was put to him that he had not paid the mortgage on the matrimonial home from November 2013 to April 2014 he said he was not too sure as his mother handled all his finances. He was taken to Suncorp-Metway records and conceded that in fact he had not paid mortgage payments. He said he was living in the property during the relevant period but nobody else was there full time. He denied having a girlfriend. He said he had no long term girlfriend since separation although a woman had stayed over the weekend several times.
The father was cross-examined about his non-compliance with drug test requests. He was eventually driven to concede that he had received 10 requests between 12 September 2013 and 4 March 2014 and had not complied.
Mr Marino was cross-examined about a failure to comply with a drug test request from the Independent Children’s Lawyer in June 2014. He said he had received the request on 13 June 2014 and provided the sample on the 16 June 2014. He said he had to vacate the matrimonial home on the particular day the request arrived and then had [X] with him. The letter had been posted to his mother and she had brought it to him. In fact this was one aspect of the father’s evidence that I found entirely believable. It was given with conviction.
The father conceded that a letter from the Independent Children’s Lawyer dated 25 July 2014 (exhibit R1) had alerted him to the fact that he had not complied with drug screen requirements. He was asked by this letter to complete another and conceded he did not comply.
It was put to the father that he started keeping [Y] for overnight even though this was not contemplated by Court orders. He denied however that he felt he could do what he liked and said that he had to comply with Court orders. He conceded that he was asked for a hair analysis for drugs but had refused.
The father asserted that he was a changed man since the Intervention Order proceedings, but was taken to exhibit JS2 to the mother’s affidavit filed 3 June 2015. He said there was nothing wrong with the messages he had sent. I have set out the relevant extracts earlier on. They are at best extremely accusatory and unforgiving of the mother.

The father was cross-examined about various disputes with the mother from time to time but in my view these matters do not take the Court further in these deliberations, and I note that differing accounts given of separation. I note that the father did go so far as to accept that some of the messages he had sent to the mother could be regarded as threatening by her.
In respect to property issues the father confirmed that a laptop computer worth $1,869 was in his possession and he uses it for his business. He did not accept the wife’s assertion that $19,419 only was owed to his parents. When he was pressed about the further $10,691 he asserted he said these reflected mortgage repayments and other loans from his parents.
When taken to the debt on the wife’s car he explained that this was in his name. He accepted that there was a balloon payment necessary when the lease expired of $13,780. He accepted that this may have been paid out by Mr and Mrs T but said it was not his debt. He was not himself able to pay the lease when separation occurred.

The father under cross-examination by the Independent Children’s Lawyer

The father confirmed that both children were thriving and that both parents loved them. The father was prepared to agree with an order for equal shared parental responsibility save for education and said it would be life changing not to have to come to Court. He agreed with subclauses 4(f) and (g) of the orders proposed by the mother dealing with Christmas and Father’s Day and said he could live with the mother’s proposal in respect to Easter, although he noted that he should have the balance of the day if the children were with him. He was prepared to live with mirror orders giving the parties alternate periods of time in Easter from year to year.
The father was opposed to changeover at a police station as this was inappropriate. He said changeover is presently at Coles in [B] or in [C].
The father was prepared to agree to the mother’s proposed orders 11, 12, 13, 14, 15, 16 and 17. He suggested however that the time for the parties to advise of any change to their telephone number or addresses in order 15 should be within 48 hours and he further proposed that in order 16, dealing with medical notifications, that each parent should authorise the other parent to communicate with any treating doctor. He disagreed however with the proposed orders 4(a) to (d) inclusive which dealt with the spend time regime.
So far as telephone time was concerned he still wished to ring every night. When the children were in his care it was okay for the mother to ring between 7:00pm and 7.30pm with her initiating the call.
The father confirmed that [Y] was not at kinder or preschool and that he was keen to avoid contact with the mother. He said that his proposal for equal time would involve contact between them three times per week.
The father said that he works in a service business and works long hours when he is not with the children which creates time for him when the children are in his care. He said he lives with his parents but intends to move a kilometre away in due course. The father was prepared to undertake drug tests on an ongoing basis provided there was an end date.
The father did not object to order 6 sought by the mother requiring holiday time to be dependent upon his being available.
So far as telephone time with the mother was concerned, the father agreed to Tuesday and Thursday at 7:00pm to 7.30pm, this being the Independent Children’s Lawyer’s proposal.
When questioned as to why he sought an order 17 (in his own outline of case document) seeking that a parent in whose care the children were not, should not attend any extracurricular activities, the father said that this was not really relevant and it could be removed.
The father said he had undertaken a post-separation and Men’s Behaviour Change courses which had given him insight. He did not now seek to blame others and had tools to control frustrations.
He completed the Men’s Behaviour Change program on 19 August 2014 which had involved 14 group sessions. He had no ongoing contact with consultants.
It was put to him that on 29 December 2014 he had said, “I can’t stand her”, about the mother. He denied this and denied that he felt like that about her.
When it was put to him that overnight time with [Y] had been subject to conditions with which he had not complied the father said he did not think drug screen orders were still subsisting at the time and thought they were finished after four tests. He did not understand that drug screen orders were ongoing in their effect and was surprised that the Independent Children’s Lawyer wanted further drug screens. He was taken to correspondence in which the Independent Children’s Lawyer had sought drug screens in July and August 2014. He conceded that ultimately he had complied with only two out of five requests between July and October 2014.
He did not accept that shared care meant that there would be no home base. He said the children might be unsettled initially but it would become the norm. He said he would accept the Court’s orders.

The evidence of the mother

The mother was called and adopted her affidavits as true and correct. She swore that her updated Financial Statement was true and correct. She confirmed that it would be very comforting to her for the father to have ongoing drug screens.
Under cross-examination by the father, who it will be recalled was representing himself, the mother denied taking drugs. She said she had taken drugs before the parties met on a social basis but had never smoked a joint.
The mother agreed that a recent changeover had been amicable but this had not previously been the case. When cross-examined about her attendance upon Dr R she said that Dr R was a psychologist to whom she had been referred by her general practitioner. This was to enable her to obtain techniques on how to deal with changeovers as these were so confrontational. The mother conceded that she did not tell the father about this and said she was always scared because he was bullying and unpredictable.
It should be noted that the father’s manner while putting his questions was distinctly overbearing and aggressive.
The mother confirmed that she wanted sole parental responsibility. She said: “given our history it is very difficult to reason with you.”
When it was put to her that Ms W said she suffered from separation anxiety the mother said she did not. She said her concern was changeovers. The mother said: “you always have to say something. The boys don’t have to hear it. It’s all in my notes. I don’t make anything up.”
This evidence, it should be noted, was given with conviction and I believe it.
The mother said she was currently going to a woman’s program on family violence which is an indefinite course, which is like an educational tool for her.
The mother said that telephone calls from the father every day can be very stressful. The boys may be in the shower and it is hard to keep them in one room. The phone is put down and put on loudspeaker. She said: “the boys don’t need to speak to you every evening. Two times a week is okay when the children are with you.”
She said that she knew that the children love their dad.
There was cross-examination about Christmas 2012 and Easter 2013 but this in my view did not assist the Court in any significant fashion. Likewise although there were clearly difficulties over the father’s fortieth birthday these do not take the matter further.
Under cross-examination by counsel for the Independent Children’s Lawyer the mother confirmed that she did not feel that the father’s drug screens were legitimate. She said she had heard stories that they could be manipulated. She said the father smoked every night in a bong and she found it hard to believe he had given up.
It was put to her that notwithstanding these concerns she was still proposing unsupervised time for the father and the mother confirmed that this was so. She said she would hope the children would be okay in his care. In respect to family violence she confirmed that this had not been physical. She would always be concerned however as a mother for the boys’ safety.
She confirmed there had been four to six appointments with Dr R with the boys present. She had been on her own once or twice. Dr R had just observed the children but had not had conversation with them. The boys could hear what was discussed with Dr R. The mother conceded that the father should be told of appointments and should be involved. But she said however that if she notified the father he would be controlling. She would like to notify him. She said: “I try to negotiate but it has been difficult in the past.”
She was prepared to agree to the Independent Children’s Lawyer’s proposed orders in respect to education.
In respect to changeover the mother confirmed that she wanted it at a police station for safety reasons. The extant Intervention Order was due to expire on 10 July 2015 and she had no intention to apply for extension. She said that anything that happened would be captured on camera at [B] which was a 24 hour police station. She wanted changeover inside. McDonald’s was however a possibility.
The mother confirmed that [Y] is not in kinder or day care but will be enrolled in kinder in 2016. His name has been put down and it is likely he will get a place. She would explore other options if necessary.
The mother said the father’s proposal would be very disruptive for the children with too much toing and froing. They would be living out of their bags. [X] has guitar lessons on Mondays, swimming on Wednesdays and basketball on Thursdays. For the latter two he has only one set of gear. The father was unpredictable and had approached her at basketball in a fashion that was entirely unnecessary.

The submissions of the parties

Counsel for the mother submitted that the father’s responses, or more accurately failure to respond, to requests for drug screens should lead to an inference that this was done to obscure drug use. It was submitted that drug tests were only done when the father wished to and this was blatant non-compliance and drug testing should be continued.
The father was arrogant about orders and his breaches of the Intervention Order were serious and repeated. Although the father now says he has changed it was submitted this was not the evidence as seen from annexure JS2. While it was conceded that there is less profanity than in the past the ongoing text messages were extremely concerning.
It was submitted that the presumption of equal shared parental responsibility was rebutted by the evidence. It was submitted that the mother should have sole parental responsibility although she was prepared to consult on significant issues. It was noted that the last medical issue was in 2013 which led to a torrent of violent messages sent by the father to the mother.
Counsel pointed to the over holding of the children and noted that the father said that this was a good routine. The mother says she cannot reason with the father and it was clear that this was so. The orders proposed by the mother were submitted to be in line with Ms W’s recommendations.
It was submitted that the father was wholly focused on himself. He had not paid any child support and the only lump sum repayment was obtained through the Child Support Agency by garnisheeing the father’s tax return.
As to changeover the mother sought that this be at a police station. This would reduce the mother’s anxiety and the father’s likelihood of making unpleasant comments.
So far as property was concerned it was submitted it was a small pool. The cars had not been independently valued and were of roughly equal value. The lump sum payment to pay out the wife’s car should be included and the debt to the father’s parents should be accepted at $19,419. There was no loan agreement to support any further amounts allegedly owed.
Once the relevant bills were paid out the moneys held in trust would be only about $81,000 left. It was submitted that the parties had about $120,000 in superannuation.
It was submitted that given the 16 year relationship the parties’ contributions should be assessed as equal. In relation to future needs the husband was submitted to earn about $65,000 a year. Although he had asserted a business downturn there were no tax returns for the most recent tax year. The mother is on Centrelink and lives with her parents and her earning capacity would be low on any view. No child support (aside from the lump sum payment) has been or was likely to be paid.
The mother had legal fees of some $65,000 which should be considered under s.75(2)(o). The mother sought all available cash be paid to her less $2,000 to the father as 50 per cent of the $4,000 fee paid to Ms W. It was submitted that this would give the mother a 70-30 split.
Although the mother had sought a s.77A order this was not now pressed. This was because given the history in relation to child support there was no likelihood that spousal maintenance would be paid.
The wife pressed the return to her of the chattels set out in annexure A to her further further amended response filed 17 November 2014.

The submissions of the father

The father conceded that property valuations were largely agreed. Both vehicles were accepted as being worth $20,000. He agreed that both parties retain their superannuation. He did not include the payment to Mr and Mrs T unless his mother was paid the $11,000 she was owed.
So far as chattels were concerned he said he came home and the place looked like a battlefield. There was no clothing left for the children and he had nothing left.
He was cross-examined about various chattels, to which I shall return.
The father conceded that the parties had contributed equally to the creation of the property pool.
So far as future needs were concerned the father said that both parties live with their parents and are in the same situation. He said there should be a 50-50 split. The only difference between them was his salary.
So far as children were concerned the father said there was no reason why there should not be equal time. He was self-employed and could take holidays off. His parents were on hand to help.
The father accepted that his behaviour in the past had not been appropriate but he had attended courses. He said he had proven to be drug free. He confirmed however that he agreed to drug screens on an ongoing basis. He confirmed that the parties needed to nurture each other’s relationships with the children and that he had never doubted the mother’s parenting skills.

Submissions of Counsel for the Independent Children’s Lawyer

Counsel for the Independent Children’s Lawyer sought that there be drug tests no more than twice per month until the start of the school year in 2016 with liberty to apply in the event of failure. It should be noted that I made this order on an interim basis as all parties appeared to agree with it on the conclusion of the proceedings on 11 June 2015.
The Independent Children’s Lawyer went through the proposed orders and noted considerable areas of agreement. So far as changeover was concerned the Independent Children’s Lawyer did not support a police station, which was described as regressive. It was noted that the Intervention Order was not being extended.
Telephone time should be on Tuesdays and Thursdays. In this regard the father’s proposal for calls every day was about him, not the children.
Although counsel for the Independent Children’s Lawyer pressed for equal shared parental responsibility save in relation to education, with an obligation on the mother to consult, when pressed by the Court counsel accepted that equal shared parental responsibility was likely to prove unworkable. I put it to counsel that the history of interaction between the parties suggested that an order for joint parental responsibility was likely to lead to endless debate and counsel accepted that this was so.
Counsel submitted that equal time was wholly unrealistic and that the father’s proposal would be a logistical nightmare in any event. The children would have no home base and be constantly unsettled.
It was noted that the father says he works 10 to 12 hours per day and it would not be possible for him to juggle half time. The father’s proposal involves six nights per fortnight until [Y] is at school in 2017 or possibly 2016. This was not recommended by Ms W. Otherwise counsel relied upon the case outline. Counsel submitted that changeover should be at Coles at [B], albeit that this was a lengthy drive for both the parties.
In further reply the father sought changeover at [M], which he said was halfway.

Some observations about the credit of the witnesses

As already indicated earlier, the father was in some respects not a satisfactory witness. He was at times evasive and unbelievable and the inconsistency between his professed insight gained from his Men’s Behaviour Change course and the tenor of the messages sent to the mother as recently as December 2014 (see annexure JS2) is very striking.
The father’s behaviour when cross-examining the mother was overbearing and aggressive, and entirely consistent, I regret to say, with the mother’s accounts of him more generally.
The mother was a straightforward and impressive witness who answered questions put to her with conviction.
It should be noted however that these findings, which are made at a level of generality, do not mean that I wholly accept the version of the mother or wholly fail to accept the version of the father.

Some findings about some of the matters in issue

These parties lived together on any view for a long time, approximately 16 years at least. Having read his text messages and observed his demeanour over several days in Court, both in the witness box and at the bar table, and likewise the mother, I have no doubt that the father has, and at all times did have, a somewhat overbearing, overassertive personality.
I accept that there was, even on the mother’s version of the events, virtually nothing in the way of actual physical assault. The highest such assertions rise relate to the snatching of the keys incident at the time of separation. This was a time that was clearly fraught for both parties and their memories of the events would be affected by the intensity of their emotions both at the time and in recalling the events. I am not prepared to find that there was any physical assault on the mother at any time.
It should be noted that for the same reasons I do not accept the father’s assertion that the mother tried to run him down with her car during the same incident.
What is clear however is that the torrent of abusive messages sent by the father to the mother following separation did constitute family violence within the extended definition contained in s.4AB of the Family Law Act 1975 (“the Act”).
The father in my view, despite his protestations of gained insight, tended to underplay the measure of his conduct. It has led to two convictions. These cannot simply be set aside or diminished as in my opinion he seeks to do.
Having said this however, I accept that the father has made great progress since he first saw Ms W. That is Ms W’s evidence and she was not the subject of challenge. He deserves considerable credit for the amount of change he has been able to make.
I note that the parties were recently able to have one communication that was amicable. In this regard, in my opinion, much of the matters complained of by the mother reflect more her historical anxiety about the father than the present reality.
I note that she complained to Ms W that the father gave her a so-called “wicked smile”. This to my way of thinking is part of a construct on the mother’s part in which the father cannot really win. On the one hand she complains that he will scarcely look at her, but if he looks at her and smiles this is given a negative interpretation.

The mother has not as yet meaningfully engaged in the sort of counselling that Ms W recommended to enable her to cope with her interactions with the father, and it is plainly desirable that she do so.
One further aspect to the controversy between the parties cannot be avoided. This concerns the extent of the father’s drug use. I should make it clear that I accept the evidence of the mother as to her limited drug use.
As is so often the way, I think the truth of the position lies somewhere between the parties’ competing positions. The father has not been as drug free over the years as he says he has been. The mother’s evidence had about it a ring of sincerity that can simply not be set aside. He plainly used drugs far more than he is now prepared to admit. The pattern of his failure to comply with drug tests is very concerning, although it does not go far enough for me to adopt the inference urged by counsel for the mother.
The father did strike me as being a person very much self-absorbed. His explanations for his over-holding of [Y] before the Court’s orders permitted it and his failure to take drug tests was far from convincing. The orders made for continuing drug testing will however address this deficiency, in my view, satisfactorily.
Furthermore, in dealing with this question of drugs, while the mother says that this drove her to separation, and it may well have contributed, I do not accept that this man was smoking every night from a bong to the mother’s displeasure. The relationship continued for 16 years and had this been abhorrent to her it simply could not have lasted that long. Accordingly, as I say, the father has used drugs more than he has said but it is not as much as the mother asserts.
This of course leads to a concerning matter which no party has addressed in submissions or otherwise. Dr W said that if the father’s denials of drug use were not true then it is likely he has a personality disorder and would be a risk.
No one has sought to adduce any evidence from Dr W so the Court is left with a dilemma posed by Dr W’s opinion and the finding just set out above about the father’s drug use.
In the ultimate what I should say, and I will return to this later when considering the s.60CC factors, is that while I am satisfied that the father was not wholly honest to Dr W, my finding does not go so far as to enable me to find that the father has lied to Dr W and therefore that I should find he has a borderline personality disorder.
It seems more probable to me than otherwise that the father, in common with so many people who give histories, subconsciously reconstructed the matter to his own advantage rather than being actively mendacious.

Parenting issues

The Court is required to follow the statutory pathway as explained by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”

Parental responsibility

Under the statutory pathway, the Court must first consider whether it is appropriate to make an order that applies the presumption that it is in the best interests of the children for each of the parents to have equal shared parental responsibility pursuant to s.61DA(1) of the Act. The presumption does not apply, however, in cases where there has been abuse of the child or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for there to be an order for equal shared parental responsibility (s. 61DA(4)).
It is the father’s position that there should be an order for equal shared parental responsibility. The mother has sought sole parental responsibility. The Independent Children’s Lawyer, up until final submissions, also proposed an order for shared parental responsibility but with a proviso that the mother have sole parental responsibility for decisions relating to the education of the children, albeit with a set of provisions for consultation with the father.
In response to a query from the Court, counsel, however, accepted the proposition enunciated by the Court to the effect that equal shared parental responsibility in any form would be unworkable, given the dynamic between the parents. The reality is that the history of the parties’ interaction, as I have detailed already in these Reasons, makes it plain that any order that empowers the father to participate in the decision-making process about the children will give rise to endless conflict and difficulty, given the father’s unreasonable approach to such matters.
The history of the interaction between the parents, and I point to the hospitalisation of [Y] in 2013 and the texts sent to the mother as a result merely by way of example, shows that the parents are utterly unable to cooperate. Indeed both of them said as much, albeit that each lays the blame at the feet of the other. I accept the evidence of the mother that the father becomes extremely difficult if he does not get what he wants and any order for joint parental responsibility will simply not work given the nature of the dynamic between the parents.
In my view any order for equal shared parental responsibility will lead to further harassment of the mother by the father and attempts by him to overbear her will. This will undoubtedly cause the mother the sort of anxiety and tension to which she has so vividly deposed and this will only make the interrelationship between the parents more problematic as Ms W so clearly observed.
Albeit that Ms W recommended equal shared parental responsibility, she did not have the advantage that I have had of seeing the father over some two to three days in Court. The findings I have made show why it is inappropriate to adopt Ms W’s recommendations.
It is not in the children’s best interests that the mother be burdened with endless conflict with the father, as I have no doubt would be the case, in the event that a shared parental responsibility order were to be made. In all the circumstances revealed by the evidence in this case, it is quite clear that the only workable outcome and the only outcome that is in the best interests of the children is that the mother be awarded sole parental responsibility.
The mother will have sole parental responsibility but will be required to consult with the father on significant issues relating to the children’s development in the manner that the Independent Children’s Lawyer sought in relation to education.

Equal or substantial and significant time

As was noted by the Full Court in Goode & Goode at [65]:
“When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the party were seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.”
The father’s proposal is close to equal time, although, as counsel for the Independent Children’s Lawyer submitted, shrouded in some measure of uncertainty. It is opposed by the mother and the Independent Children’s Lawyer.
Although the father’s desire to spend more time with his children is undoubtedly sincere, this aspect of the matter can be dealt with quite shortly.
The Independent Children’s Lawyer submits that the father’s proposal would be a logistical nightmare and is totally unrealistic. The children would have no home base and would be constantly unsettled. The Independent Children’s Lawyer submitted that the father works some 10 to 12 hours per day and it would, therefore, be impossible for him to juggle equal shared time. Furthermore, this is not recommended by Ms W (see paragraphs 49-50 of her report dated 5 September 2014).
Put shortly, all those submissions are eminently accurate in my view. The father’s proposal is clearly, as the Independent Children’s Lawyer submits, focused on his own needs and not those of the children. All the matters asserted by the Independent Children’s Lawyer are correct and they weigh overwhelmingly against the adoption of the father’s proposal.

The children’s best interests – substantial and significant time or other time

Section 60CC(2)- the primary considerations

In this case, there is no possible question that it is in the best interests of the children to have a meaningful relationship with their father. No one has suggested the contrary. Likewise, although the conduct of the father has, to an extent, been deficient from time to time, as already detailed in these reasons, there is no suggestion that he should not spend time with the children. The real question is how much and in what configuration.

The additional matters – s.60CC(3)(a)

Section 60CC(3)(a)

The Independent Children’s Lawyer submits that the children are too young to express views. I accept that that is so. The very limited indications derived during the interview with Ms W do not, in my view, given the age of the children, take the matter much further, save to note that [Y] is very sad each time he has to leave [X] with his father when he does not stay over.

Section 60CC(3)(b)

All the evidence in the case, and most particularly the reports of Ms W, suggests that the children have an excellent relationship with both parents and with each parent’s extended family.

Section 60CC(3)(c)

Both parents have clearly sought to participate in making decisions about the long-term issues in relation to the children and spend time and communicate with them. As Ms W pointed out, both are good and loving parents whose concern is the happiness and wellbeing of their children. As Ms W noted, however, at paragraph 47 of her report dated 5 September 2014, the intensity of the interpersonal struggle between each parent is likely, if continued, to be damaging to the children. I accept the submission of the Independent Children’s Lawyer that the mother’s desire to promote the relationship of the children with the father is limited, but it is scarcely surprising that this is so, given the father’s behaviour. The father, I also accept, as the Independent Children’s Lawyer submits, continues to have, despite his protestations, an essentially negative view of the mother.

Section 60CC(3)(d)

I accept that any change to the extant arrangements would not be likely to be anything other than extremely difficult for the children. They have lived in the primary care of their mother all their lives, and despite some limitations, it appears incontestable that she is a tremendously dedicated mother. I have already dealt with the father’s proposal for equal time and no more needs to be said about that. I note and accept the submission of the Independent Children’s Lawyer that the orders sought by the Independent Children’s Lawyer will not lead to any change in extant circumstances.

Section 60CC(3)(e)

Although there are some logistical difficulties in the extant arrangements, and perhaps most particularly in relation to changeover, and while the proposals of the father which I have rejected would be a logistical nightmare, there are no significant difficulties of practicality or expense with the orders proposed by the Independent Children’s Lawyer.

Section 60CC(3)(f)

Despite each party’s criticisms of the other, I accept Ms W’s evidence that both parents are adequately able, despite their various difficulties, to care for the children’s needs.

Section 60CC(3)(g)

It is clear, as already stated, that these are very young children who are flourishing and doing well. I have already commented upon the personalities of the two parents sufficiently above. My observations, however, do not suggest that such difficulties as they may experience make them inappropriate as parents.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

The parents’ attitudes to the children are unobjectionable. I would express some reservation, as indeed the Independent Children’s Lawyer’s outline of case does, as to the father’s attitude to the mother, notwithstanding his improvement. The way in which the parents interrelate is clearly one of the responsibilities of parenthood, going as it does to the provision of the secure and settled set of circumstances for the children. The father would do well to continue to modify his attitude towards the mother.

Section 60CC(3)(j) and (k)

It is plain that there are Intervention Orders in place. The father has, from time to time, breached such orders. This speaks for itself. I have already dealt with the parties’ assertions as to family violence in these Reasons for Judgment. As already perhaps indicated, however, these matters, troubling as they clearly are, are not sufficient to suggest that the father should not spend time with the children.

Section 60CC(3)(l)

It is clear on any view that it is desirable in the best interests of the children to bring this quite substantial litigation to a conclusion. Final orders should be made.

Section 60CC(3)(m)

There are no other relevant matters.
Taking all of these matters together, and repeating once again the general force of Ms W’s observations, it is clear that the orders sought by the Independent Children’s Lawyer are those that are most appropriate in respect of the spend-time regime for the children.

Changeover

The mother seeks that changeover take place in a police station, effectively, to manage her ongoing fear and concern about the father. The father’s proposal is school or if (contrary to his views) a police station, [M] Police Station. He says that that is halfway between where he and the mother live.
The Independent Children’s Lawyer submits that changeover in a police station is in all the circumstances, regressive, involving a clear association as it does in the children’s minds between seeing their father on the one hand and seeing him in a police station on the other. This clearly suggests, as they get older, that there is something wrong. I accept that submission. I further accept the Independent Children’s Lawyer’s submission that changeover should take place at Coles at [B]. This setting has CCTV, is likely always to have plenty of people around and provides a neutral point which should be sufficient both to provide a normal setting for the children and the reassurance that the mother needs. True it is that this will mean the father does more travelling, but then he is better equipped financially to do so.
It should be noted that as best I understand it the various other ancillary orders proposed by the Independent Children’s Lawyer are not controversial.

Property issues

The preliminary question – is it appropriate to make an order adjusting property interests of the parties

As the High Court made clear in the case of Stanford & Stanford [2012] HCA 52 the Court must first identify the parties’ legal and equitable property interests and determine whether it is appropriate that there be any adjustment. In this case, however, as in so very many cases, it is clearly appropriate that there be an adjustment. The parties were in a relationship for an extended period of time, that relationship no longer subsists and the basis upon which they conducted their affairs has clearly changed irrevocably. Furthermore, both parties seek that there be such an adjustment. It is clearly appropriate that there be one.

The pool

Counsel for the mother approached the pool on the basis of the amended case outline filed in Court on 10 June 2015. It emerges that the property pool is largely agreed.
Set out below is a schedule included in the amended case outline with the heading “Wife’s Property Pool”.

Assets

Owner

Value

Proceeds of Sale of Property C, held in Trust (as at 6.4.15 incl interest)

Joint

$176,623

VW Combo Van

Husband

$20,000

Mazda CX7

Wife

$20,000

Total:

$216,623

Liabilities

Owner

Value

Commonwealth Bank Personal Loan

Husband

$8,357

Montessori School Fees

Joint

$975

Go Mastercard [1] (as at 26.1.13)

Wife

$5,747

CBA Mastercard [2] (as at 1.2.13)

Wife

$3,649

NAB Visa [3] (as at 16.1.13)

Wife

$970

Myer Visa [4] (as at 18.1.13)

Wife

$4,161

Coles Group [5] (as at 12.1.13)

Wife

$994

CBA Visa [6] (as at 6.2.13)

Wife

$3,035

Go Mastercard…[7]

Husband

$1,869

St George Finance (H’s car)

Husband

$20,000

BMW Financial Services (W’s car) (paid out and now owing to Mr and Mrs T)

Wife

$13,780

Mr and Ms M

Joint

$19,419

Mr E

Joint

$10,000

Mr and Ms S

Joint

$2,500

Total:

$95,456

NON SUPERANNUATION NET ASSETS

$121,167

SUPERANNUATION

Owner

Value

Care Super

Wife

$39,860

Wife’s Plum Superannuation (as at 10.3.14)

Wife

$28,734

Husband’s Superannuation (Aust Super at 24.9.13)

Husband

$52,170

TOTAL SUPERANNUATION:

$120,764

TOTAL NET ASSETS (incl Superannuation)

$241,931

N.B Wife’s outstanding legal fees are approx. $65,000 & funds remaining after liabilities repaid: $81,167.

As best I understand the matter, all the items in that schedule are agreed, save the following:

BMW Financial Services (wife’s car) – loan paid out by loan from Mr and Mrs T – $13,780.

The mother seeks that this debt, which I fully accept is owing, be included in the pool. The father opposes the inclusion of this item in the pool.
It is a fact that when the parties separated, there was a payout figure ultimately due in respect of the Mazda CX7 of this amount. This is one of those issues in which it would be possible to engage in fairly extensive and abstruse reasoning. On the one hand the debt in respect of the Mazda CX7 was a debt of the parties at the time the relationship came to an end. On the other hand, however, it was not, in one sense, so much a debt as an ongoing liability. It was not then immediately payable but was to accrue later on.
On balance I think that the loan from Mr and Mrs T should be included in the pool. The husband’s car finance has been included and it is only just and equitable that the equivalent debt on the part of the wife should also be. I note that it was the husband’s position that he would not object to Mr and Mrs T being repaid if the additional sum he claimed was owed to his mother was, in fact, included.

The debt to the father’s parents

The wife says that this debt is conceded at $19,419. The husband, as I have noted, says that the payment to Mr and Mrs T is not agreed unless his mother’s additional $11,000 loans to him was repaid.
The reality is that the father has not produced any loan documentation. He has not called his mother or provided any explanation why he did not do so. Albeit that he was not legally represented at trial, he was legally represented until very close to trial. The decision not to put his mother on affidavit was plainly taken deliberately. This does not go so far as to ground a Jones v Dunkel (1959) 101 CLR 298 point, but it means that there is no evidence save the father’s unsupported word that an additional $11,000 is owed to his mother. In my view, the father has simply not made out any additional debt in this regard.

Superannuation

I note that the father’s superannuation is detailed in his most detailed Financial Statement filed 25 November 2014 as $58,056. That of the mother is $67,067 according to her Financial Statement filed 17 November 2014. The wife’s case outline appears to total her superannuation of $68,594. I will treat that as a concession against interest and therefore note the total combined superannuation is $126,650.
As I understand it, each party proposes that the other keep the superannuation they have. I think that in the particular circumstances of this case, that is a just and equitable outcome. Given their age, it will be some considerable number of years before either party can access their superannuation. Although that of the father is somewhat less than that of the mother, he has a far higher earning capacity, and in all the circumstances each party should simply retain their superannuation, which I will otherwise exclude from consideration in this regard.

Liabilities

It should be noted that it appears to be common cause that a number of the liabilities set out in the property pool should be paid from the net proceeds of the matrimonial home. In all the circumstances, I think this is a just and equitable proposition.

Chattels

The father was cross-examined about a list of chattels sought by the mother. I have set out his answers and I will deal with the matters seriatim.

Large wooden coffee table

The father said he bought this and wishes to keep it, and I accept that is reasonable.

Washing machine

The father says this is broken. It is implicit that the wife can have it if she wants.

Brown colander

The father confirmed he has this in possession and is happy for the mother to have it.

Stepping stool

The father says the children use this and that is reasonable.

Candle holders

The father confirmed that he has one of these holders and that the mother can have it.

[Y]’s white chest of drawers

The father asserts that he uses this for the children’s clothes and that seems reasonable.

Three white stools

The father confirmed that the wife could have these.

White ceramic dish

The father confirmed that the mother could have this.

Other Chattels

As I understood the matter, otherwise the father said the items asserted were simply not in his possession. Nothing can be done about them. I am not in a position to find that the father is lying in this regard.

Contributions

This was, as counsel for the mother submitted, a 16-year relationship, and in the circumstances revealed by the materials, there can be no disputing counsel’s assertion that contributions should be regarded as equal. Indeed, I did not understand the father to suggest otherwise.

The s.75(2) factors

Although by no means entirely satisfactory, the state of the evidence suggests that the father has an income of somewhere slightly in excess of $60,000 per year. The mother is on Centrelink benefits and has the primary care of two young children, which will continue for a considerable period of time. The mother’s future earning capacity is doubtful at best and is not likely, given her commitment to her role as a mother (one I regard as reasonable in the circumstances) to engage in even part time work for some years to come, at least until [Y] is at school.
There is nothing in the parties’ health or other circumstances otherwise that, in my view, presents itself as being significant.
The mother lives with her parents, which is of course of some assistance to her, but is paid no child support at all. The only child support that has been paid was garnisheed from a tax refund paid to the father. I find he will not address payments of child support in the future.
Counsel for the mother raised, under s.75(2)(o), the fact that the mother has legal fees of some $65,000 presently owing to her solicitors. It was for this reason that counsel sought that she be paid all the net cash once the relevant bills are paid, less $2,000 as her contribution to the report of Ms W, which it is conceded that the father paid initially.
It is submitted that this would provide a 70-30 outcome in her favour, in other words a loading of 20 per cent in respect of future needs.
The father submitted strongly that such an adjustment would be unfair and leave him, in effect, with nothing. He submitted, as is the fact, that at least presently both parties live with their parents and are in the same situation. He said the outcome should be a 50-50 division of the pool. He submitted that the only different matter was that of salary.

Conclusion on the property division

The father’s submission is, of course, not correct. In addition to the very significant disparity of financial income, the mother has the full-time care and expense of the children for the vast majority of the time. This is a significant matter. Following payment of all the extant liabilities, there will be only some $81,167 left. The mother seeks that all of this be paid to her. As I understood the submission, the net effect would be to give her 70 per cent of the total of the net assets, including superannuation.
I have already said why I do not think that superannuation should, in the context of this case, be included in a global way in the pool. Furthermore, and in any event, I would not regard it as a just and equitable outcome for the husband to receive no cash whatsoever at the end of a 16-year relationship in which, on any view, he contributed equally.
In my view, the wife should, indeed, receive a 20 per cent loading in respect of future needs.
I note that no submission was advanced in terms by the wife to the effect that she should receive the entirety of the pool because of its relatively small size. Had such a submission been made, once again, I would not have been prepared to sustain it.
The wife’s outstanding legal fees are, of course, a significant consideration for her. It is very regrettable that she has permitted the case to exfoliate in this fashion, given that the vast majority of the case appears to have been fought out on children’s issues. It is, of course, her privilege to engage lawyers in such a fashion as she sees fit, but the scale and extent of her conduct of the case owes much, no doubt, to her heightened emotions about the father, which I have not, as explained above, by any means, wholly accepted are reasonable.
There should, in my view, be a division of the extant net sums from the proceeds of sale 70-30 in the wife’s favour. This would produce a sum of some $24,350 to the husband. The remainder should go to the wife, including any interest that may have accrued in the meantime.

Is the outcome just and equitable

The Court is, of course, required to be satisfied that the property settlement is just and equitable. It should be noted that the husband has asserted that he, likewise, has legal fees to pay, and it may very well be that each party emerges with very little net resources whatever from this outcome. That is a great misfortune for them both, but in the circumstances I do not think that it produces an outcome other than one that is just and equitable. Just as with the mother, the father, too, has to pay his bills. These parties have litigated on a wide scale with what they always both knew was a small property pool. It is beyond the Court’s power to make that property pool bigger. In my view, the conclusions I have reached are, indeed, just and equitable.

Conclusion

I have prepared draft orders to give effect to these conclusions. I will give the parties an opportunity to study them and I will hear from them before final orders are made.

I certify that the preceding two-hundred-and-fifty-seven (257) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 31 August 2015

[2015] FCCA 2226

31 August 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Jurisdiction

Assets	Owner	Value
Proceeds of Sale of Property C, held in Trust (as at 6.4.15 incl interest)	Joint	$176,623
VW Combo Van	Husband	$20,000
Mazda CX7	Wife	$20,000
Total:	$216,623
Liabilities	Owner	Value
Commonwealth Bank Personal Loan	Husband	$8,357
Montessori School Fees	Joint	$975
Go Mastercard [1] (as at 26.1.13)	Wife	$5,747
CBA Mastercard [2] (as at 1.2.13)	Wife	$3,649
NAB Visa [3] (as at 16.1.13)	Wife	$970
Myer Visa [4] (as at 18.1.13)	Wife	$4,161
Coles Group [5] (as at 12.1.13)	Wife	$994
CBA Visa [6] (as at 6.2.13)	Wife	$3,035
Go Mastercard…[7]	Husband	$1,869
St George Finance (H’s car)	Husband	$20,000
BMW Financial Services (W’s car) (paid out and now owing to Mr and Mrs T)	Wife	$13,780
Mr and Ms M	Joint	$19,419
Mr E	Joint	$10,000
Mr and Ms S	Joint	$2,500
Total:	$95,456
NON SUPERANNUATION NET ASSETS	$121,167
SUPERANNUATION	Owner	Value
Care Super	Wife	$39,860
Wife’s Plum Superannuation (as at 10.3.14)	Wife	$28,734
Husband’s Superannuation (Aust Super at 24.9.13)	Husband	$52,170
TOTAL SUPERANNUATION:	$120,764
TOTAL NET ASSETS (incl Superannuation)	$241,931